Thursday, November 29, 2007

Roy Martin castigates legal services reform on access to justice - preserve monopoly instead.

While the Faculty of Advocates enjoys the swift exit of it's Dean Roy Martin, after some three years, the Law Society of Scotland is still burdened with a near 20 year regime which has brought the profession into general disrepute ...

Roy Martin QC, who has resigned as Dean of the Faculty of Advocates, gives a view of the profession from his point of view, but rounds on those who wish to open up the legal services market and break his colleagues monopoly over court representation ...

The Scotsman reports :

Dean says stables have made the Faculty stronger


AS THOSE who leave elected office so often find, the trappings of power can soon fall away. While a replacement has not yet been found for Roy Martin, QC, as dean of the Faculty of Advocates, his resignation saw him swiftly "evicted" from the plush book-lined office that goes with the post.

Sitting in a brightly lit but anonymous meeting room, it is rather tempting to wonder if these stark surroundings are a suitable setting for a conversation about his outlook for the future of the Scottish bar.

Martin says those who predicted the demise of the Bar following the "devolution" of most of its stables were premature in their doom-mongering. The move to allow advocates to reorganise themselves according to preference has strengthened the Faculty, not undermined it, he insists. Martin says his successor, set to be named on Wednesday 28 November, will have "unfinished business" to attend to, and that the fight to preserve an independent bar goes on.

Whether the new dean turns out to be the current vice-dean Valerie Stacey, QC - who would be the first female dean if elected - or top-earning advocate Richard Keen, QC, she or he will be faced with problems that Martin believes not only threaten to undermine the independence of the profession, but the very existence of the Bar itself.

Following the Which? super-complaint, the Office of Fair Trading (OFT) indicated it would like to see a review of the restrictions that prevent advocates entering into partnerships, either with each other or with solicitors. The outcome of the wider debate over the future shape of legal services in Scotland will also be crucial for the Faculty. Martin is concerned the consumer lobby and the OFT have failed to recognise legal services are not just "consumer" services and that advocates and solicitors play a wider role in providing access to justice.

"The OFT is now engaged in what in effect are two investigations into the Faculty of Advocates, concentrating on the manner in which advocates practise and particularly on our rule against partnership," he says. "It is clear the Faculty has significant work to do in trying to resist the abolition of the rule which I believe would be likely to lead to end of an independent individual referral bar."

While it is often argued the current rules - for example, the restriction that prevents "mixed doubles" teams of advocates and solicitor advocates - are anti-competitive, Martin argues opening up the market could actually reduce competition.

"I have difficulty understanding why the manner in which the Faculty of Advocates organises itself is of such concern to the OFT," he says. "The Faculty consists of around 500 individual advocates, each of whom competes against all of the others and each of whom is available to every client in Scotland. Creation of partnerships would inevitably give rise to larger and more powerful practising units, and give rise to the likelihood of greater conflict of interest."

But does Martin accept the profession could have done more to head off such challenges? "It is always reported or implied that we haven't been responsive enough," he says. "I would certainly accept that over the years that the legal profession has been seen as somewhat slow to respond to change. I don't necessarily accept the wholesale changes to the legal profession that are now being advocated are in the interests of consumers because a critical element of the provision of legal services is access to justice.

"Members of the legal profession are not simply providing consumer services, but are representing parties in the courts in a situation where they have duties to the court and the public interest, as well as duties to the client who is the consumer."

The public may also be unaware of the implications of the profession being brought under greater control of the Scottish Government, he adds, and the Faculty remains concerned about the impact of the Scottish Legal Complaints Commission, which is due start work next year.

"The passing of the Legal Profession and Legal Aid (Scotland) Act brought about the start-up of the Scottish Legal Complaints Commission, which is supposedly independent from the Scottish Government," he says. "The Faculty, in contrast with the Law Society, opposed the legislation because of anxieties that such independence would not be preserved. As yet, we await the formal appointment of any of the commissioners to the SLCC but, in the meantime, the body is in effect being established under the direct control of the Scottish Government, and in a way that tends to support my anxiety that the SLCC will not be as independent as may have been intended."

But it is not only external pressures that have been behind significant changes. The Faculty's decision to allow stables to devolve from its clerking and administrative services company, Faculty Services Ltd, followed growing dissatisfaction among its own members. Martin, whose own stable, Murray, was among the first to devolve, says the move has been well-received and predicts more stables will follow suit.

"The reorganisation of the stables and allowing members who practice to organise themselves in ways that are more suited to their aspirations is something I am pleased occurred when I was Dean," he adds.

When the Law Society and WS Society have chief executives to run their organisations, outsiders may be surprised the Faculty continues to be run by elected office bearers. Martin, who was Dean for three years and vice-dean between 2001 and 2004, says such a move has not been given serious consideration, largely because of the advantages of having elected office bearers who remain practising advocates.

"It may seem to be an arduous position, nevertheless the opportunity to do what one can to maintain the interests of the Faculty and the interests of the independent legal profession is one that I was personally very happy to take up," says Martin.

Now he has stepped down, Martin, 57, does not intend to retire. Martin, a Glasgow University-educated solicitor's son, will focus on private practice, specialising in parliamentary, administrative, environmental and land law. The traditional path for former deans is to be elevated to judicial office but, since Martin is a member of the Judicial Appointments Board, that will not be an option just yet.

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