Ethical sponsorship ? ‘Asbestos is good for you’ law firm sponsors Law Society’s Donald Dewar debate tournament on ‘more harm than good’ internet

EDINBURGH law firm Simpson & Marwick which famously told MSPs at the Scottish Parliament that asbestos related medical conditions such as pleural plaques ‘were good for you’ and are known to represent scores of solicitors facing negligence claims are revealed to be this year’s sponsor of the Law Society of Scotland’s ‘prestigious’ Donald Dewar Memorial Debating Tournament, along with publishers Hodder Gibson. The debating tournament sees teams from schools all over Scotland compete in debates in an effort to teaches skills which are invaluable at university, job interviews and in employment.

Ironically, for a law firm which endured much publicity after news websites and video footage from the Scottish Parliament revealed the extent to which partners at Simpson & Marwick argued against the Scottish Government’s Damages (Asbestos-related Conditions) (Scotland) Act 2009, the opening topic for the opening rounds of this year’s Donald Dewar Memorial Debating Tournament is the ‘merits of the word wide web – the internet, with teams of pupils debating the motion “This house believes the internet does more harm than good”. (I bet S&M believe the internet does more harm than good, at least to their reputations ! – Ed)

Topics for debate ? Lawyers for Simpson & Marwick told Holyrood Justice Committee ‘Pleural Plaques are good for you’ (Click image to watch video & HERE for more)

The Damages (Asbestos-related Conditions) (Scotland) Act 2009 was legislated by the Scottish Government & Scottish Parliament after vested interests (insurance firms) south of the border managed to secure a ruling in the House of Lords which took out various asbestos related condition such as pleural plaques from the list of ailments victims of asbestos exposure could claim for.

Scottish law firms, involving Simpson & Marwick, then Brodies LLP launched a legal challenge against the legislation in the Court of Session to prevent asbestos victims being able to use the new legislation to claim compensation. However, the insurers lost their case after Lord Emslie threw out the insurers legal challenge, which was led by the Dean of the Faculty of Advocates himself, Richard Keen QC.

In a 150-page judgment issued at the Court of Session, which can be read online here : OPINION OF LORD EMSLIE in the petition of AXA GENERAL INSURANCE LIMITED and OTHERS Petitioners; for Judicial Review of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, Lord Emslie stated: "Not surprisingly, individuals diagnosed with pleural plaques are liable to become alarmed and anxious for the future, and this may severely reduce their enjoyment and quality of life. The diagnosis confirms significant asbestos exposure in the past, of which they may or may not previously have been aware; it underlines the much higher risk which they now face, many hundreds of times greater than for members of the population at large, of contracting lung cancer, mesothelioma or asbestosis; and in some cases it may bring to mind the suffering and perhaps death of friends, colleagues and relatives from these serious asbestos-related diseases.”

Among other roles Simpson & Marwick are generally known for, is being one of the lead representative law firms to the Law Society of Scotland's Master Insurance Policy, the solicitors Professional Indemnity Insurance scheme which fights clients who attempt to recover assets lost by the ever growing numbers of negligent, or ‘crooked lawyers’ which populate Scotland’s legal profession.

An independent investigation into the Master Policy undertaken by the University of Manchester’s Law School for the Scottish Legal Complaints Commission during 2009 linked the Master Policy to deaths, revealing information relating to suicides involving clients who had become involved with the Master Policy, information which the insurers, law firms and the Law Society of Scotland deliberately concealed. Upon publication of the report, insiders at the SLCC claimed the significance of the ‘suicides’ was deliberately talked down in media releases, although it was heavily reported online at the time HERE.

The involvement of some controversial law firms in Scotland’s education curriculum is coming under increasing scrutiny after it was revealed law firms and the Law Society itself are engaged in blocking attempts to include impartial teaching of certain aspects of the justice system in schools, and perhaps more worryingly, some solicitors who have attended schools or been involved with children are, according to legal insiders, not always screened under current legislation for criminal offences of a sexual nature.

Law Society Press Release on Donald Dewar Memorial Debating Tournament :

Pupils to debate if Internet does more harm than good

The opening heats of the Law Society of Scotland's annual debating tournament start today, Thursday 25 November at schools across Scotland.

This year's Donald Dewar Memorial Debating Tournament will see 128 teams compete in the first round of heats during the next two weeks. The competition, which was launched in 1998 to celebrate and encourage debating in schools, has grown to become the largest competition of its kind in Scotland.

The tournament, sponsored by Simpson and Marwick solicitors and Hodder Gibson publishers, invites secondary school pupils to pit their wits and powers of persuasion against each other.

This year the teams will examine the merits of the world wide web web when they debate the motion 'This house believes the Internet does more harm than good' in the opening rounds. 64 successful teams will go through to the second stage.

Heather McPhee, education and training development officer at the Law Society of Scotland, said: "I'm delighted the tournament is remaining as popular as ever. The tournament spans the entire country and each year we see new schools opting to take part and test their debating skills.

She added: "The Donald Dewar Debating Tournament gives young people a chance to consider issues relating to them and a voice to express their views and opinions.

"It also helps pupils develop skills and confidence which will help them in all aspects of their lives."

Schools taking part for the first time are marked *

Barrhead High School*, The Berwickshire High School*, Bellshill Academy, Braes High School*, Buckhaven High School*, Clydebank High School*, Denny High School*, Dunblane High School*, Duncanrig Secondary School*, Leith Academy*, Peebles High School*, Oban High School*, Queen Anne High School*, St Ninian's High School*, St Paul's RC Academy*, Tynecastle High School*, High School of Dundee, Strathallan School, Perth High School, Aberdeen Grammar School, Millburn Academy, Glenalmond College, St Joseph's College, Stranraer Academy, Marr College, Belmont Academy, Jedburgh Grammar School, Earlston High School, Wallace High School, The Community School of Auchterarder, McLaren High School, Linlithgow Academy, St Margaret's Academy, Our Lady's High School, Hamilton College, Holy Cross High School, Stewart's Melville College, Craigmount High School, St George's School for Girls, The Glasgow Academy, Dunfermline High School, Madras College, Nairn Academy, Gordonstoun School, Elgin Academy, Perth Academy, Queensferry High School, St Columba's School, Greenock Academy, High School of Glasgow, Dollar Academy, Lenzie Academy, Douglas Academy, Belmont House School, Uddingston Grammar School, Girvan Academy,The Edinburgh Academy, Boroughmuir High School, Fettes College, Edinburgh, The Royal High School, Edinburgh, George Heriot's School, Edinburgh, St Mary's Music School, Edinburgh, Musselburgh Grammar School, George Watson's College, Edinburgh, Grove Academy, Forfar Academy, Inverclyde Academy, Balfron High School, Hutchesons' Grammar, Glasgow, Mearns Castle High School, Newton Mearns, Abronhill High School, Cumbernauld, St Margaret's School for Girls, Banchory Academy, The Gordon Schools, Robert Gordon's College, Aberdeen, Sandwick Junior High, Albyn School, Inverkeithing High, High School of Dundee, High School of Glasgow, Coltness High School, Sgoil Lionacleit, Merchiston Castle School, Mary Erskine School, Preston Lodge High School, Dalkeith High, Bearsden Academy, All Saints RC Secondary School, Holy Cross High School, Portobello High.

BACKGROUND : Damages (Asbestos-related Conditions) (Scotland) Act 2009

Related media coverage HERE, HERE, HERE & HERE

Introductory Text

1.Pleural plaques

(1)Asbestos-related pleural plaques are a personal injury which is not negligible.

(2)Accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries.

(3)Any rule of law the effect of which is that asbestos-related pleural plaques do not constitute actionable harm ceases to apply to the extent it has that effect.

(4)But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.

2.Pleural thickening and asbestosis

(1)For the avoidance of doubt, a condition mentioned in subsection (2) which has not caused and is not causing impairment of a person's physical condition is a personal injury which is not negligible.

(2)Those conditions are—

(a)asbestos-related pleural thickening; and

(b)asbestosis.

(3)Accordingly, such a condition constitutes actionable harm for the purposes of an action of damages for personal injuries.

(4)Any rule of law the effect of which is that such a condition does not constitute actionable harm ceases to apply to the extent it has that effect.

(5)But nothing in this section otherwise affects any enactment or rule of law which determines whether and in what circumstances a person may be liable in damages in respect of personal injuries.

3.Limitation of actions

(1)This section applies to an action of damages for personal injuries—

(a)in which the damages claimed consist of or include damages in respect of—

(i)asbestos-related pleural plaques; or

(ii)a condition to which section 2 applies; and

(b)which, in the case of an action commenced before the date this section comes into force, has not been determined by that date.

(2)For the purposes of sections 17 and 18 of the Prescription and Limitation (Scotland) Act 1973 (c. 52) (limitation in respect of actions for personal injuries), the period beginning with 17 October 2007 and ending with the day on which this section comes into force is to be left out of account.

4.Commencement and retrospective effect

(1)This Act (other than this subsection and section 5) comes into force on such day as the Scottish Ministers may, by order made by statutory instrument, appoint.

(2)Sections 1 and 2 are to be treated for all purposes as having always had effect.

(3)But those sections have no effect in relation to—

(a)a claim which is settled before the date on which subsection (2) comes into force (whether or not legal proceedings in relation to the claim have been commenced); or

(b)legal proceedings which are determined before that date.

5.Short title and Crown application

(1)This Act may be cited as the Damages (Asbestos-related Conditions) (Scotland) Act 2009.

(2)This Act binds the Crown.

Scotland must lift ban on Class Action litigation as European Parliament supports proposals on competition law

As the Dean of the Faculty of Advocates, Richard Keen QC recently said himself, its time for the ban on Class Action lawsuits in Scotland to be lifted.

Although the Dean himself seemed to be more interested in taking on the banks, the long standing peculiarly Scottish prohibition of consumers banding together to take on big business and companies that breach their rights or provide sharp practice in consumer services, should now be at an end.

Over to Justice Secretary MacAskill & Holyrood for some quick legislation to bring Scots consumer protection in line with most other countries … (not ! – Ed)

Out-Law.com reports :

MEPs back consumer class actions in competition cases

OUT-LAW News, 26/03/2008

The European Parliament has backed European Commission proposals that would allow consumers to band together to take action against companies that breach competition law.

The proposals echo some of the attributes of class action law suits, cases permitted in the US in which many people affected by a company's behaviour act together against that company and share the proceeds of a payout.

The Commission's proposals specifically say that they are not intended to create a litigation culture, but say that some action is necessary to allow consumers legal protection against companies which breach competition law.

"[Competition Commissioner Neelie Kroes] shares Parliament's view that collective redress mechanisms are necessary to give consumers and small businesses a realistic and efficient possibility to obtain compensation in cases of scattered damage, and that these mechanisms must include appropriate safeguards against excessive or abusive litigation," said a Commission statement after the Parliament vote.

Parliament had received a report on the Commission's recommendations and backed them by 498 votes to 11, with 17 abstentions.

The Commission's White Paper addresses the problem that competition law breaches often harm massive numbers of people in relatively small ways. The Commission is seeking to punish those breaches without many very small cases having to be brought.

"The European Parliament confirms the Commission’s findings that many victims harmed by EC competition law infringements are currently prevented from obtaining the compensation they are entitled to under the Treaty," said a Commission statement. "The European Parliament stresses that collective redress – with appropriate safeguards – is necessary, and that proposals to help victims gain compensation must not be delayed."

"I am delighted that the European Parliament shares the Commission’s view that something needs to be done to ensure that the victims of competition breaches finally get the compensation they are entitled to," said Kroes. "I am particularly pleased that today's resolution is based on a wide consensus across most political groups."

The Commission said that victims of competition law infringements forego billions of euros a year in compensation payouts because of the ineffectiveness of the law.

The Commission published its plans in its White Paper a year ago, saying that in most EU countries there were barriers to consumers receiving compensation for competition law breaches, such as the abuse of dominant market positions.

"The recommendations balance rights and obligations of both the claimant and the defendant and include safeguards against excesses and abuses of litigation," the Commission said.

“Consumers who are victims of illegal activities, such as overcharging, misleading advertising or outright scams, have a right to compensation," said Consumer Commissioner Meglena Kuneva when the Commission consulted on the proposals last year. "Currently, particularly where there are small scattered claims, this right is often theoretical because of the obstacles to exercising it in practice."

"There is a justice gap, a welfare gap and there are black holes in our redress system that is leaving consumers with nowhere to go. The present situation is clearly unsatisfactory. We must find a way to make the basic right to consumer redress a reality for more people," she said.

The Commission's research had found that privately brought antitrust claims for damages were extremely rare, meaning that companies that had broken the law were not being punished.

It said that it believed collective redress would encourage more cases to be brought.

It is now up to the Commission to decide what steps should be taken next to implement its plans.

Faculty of Advocates & Law Society fall out over poor regulation of solicitor advocates

The Dean of the Faculty of Advocates, Richard Keen QC, has called on the Law Society to better regulate solicitor advocates … but given the fact the Law Society couldn’t regulate a dead horse, or even the bones of a dead horse .. that's going to be an impossible task …

The Law Society's reply was to ask for a review by the Justice Secretary Kenny MacAskill ..

The Herald reports :

Law Society attacked over review request

Law Society attacked over review request
BRIAN DONNELLY March 13 2009

Scotland's legal elite have clashed publicly over plans to review the regulation of solicitor advocates after concerns about the system were raised by the country's second most senior judge.

The Dean of the Faculty of Advocates has called on the Law Society of Scotland to face up to its responsibility for regulating solicitor advocates.

The society this week wrote to the Scottish Government requesting an independent review of the system. The faculty believes the society should carry out its own overhaul.

Solicitor advocates are lawyers qualified to represent clients as an advocate in higher courts in England, Wales and in Scotland, the Supreme Court and High Court.

The Lord Justice Clerk, Lord Gill, expressed concern during a recent murder case about the regulation of the group of solicitors.

He found that some solicitors were failing to advise their clients, contrary to Law Society rules, that they have the right to be represented by an advocate, which may be in their best interests.

He added that some solicitor advocates were doing advocacy work beyond their competence and they had a lack of awareness of their professional duties.

He revealed some of the senior solicitors had accepted instructions from their own law firms without advising clients of the availability of counsel, and were "self-certifying" themselves as the lead solicitor in serious criminal cases.

Lord Justice Clerk said: "From the standpoint of the administration of justice the idea that any solicitor advocate can accept instructions, perhaps from his own employee, as leader in a serious trial regardless of his experience and skill, is matter for concern.

"The concept of seniority is in my view conducive to the interests of justice. It does not apply in the case of solicitor advocates ... in practice there is no concept of seniority other than for the purpose of charging fees."

The society asked Justice Secretary Kenny MacAskill to report back next year on an independent review of all aspects of the rights of audience in the Supreme Courts.

Richard Keen, QC, the Dean of the Faculty, said the society had abdicated its responsibility for regulation after Lord Gill "highlighted failures".

He said: "The Faculty had hoped for a constructive response from the Law Society of Scotland, which is the regulatory authority for solicitor advocates.

"It is not appropriate for the Law Society to kick this into the long grass by asking for an independent inquiry or investigation. If the Law Society is to prove itself the regulator it claims to be it should demonstrate that by regulating.

"There is no call and none certainly from the Lord Justice Clerk, for an investigation into rights of audience in general.

"What there obviously has been is a failure of regulation in respect of solicitor advocates, and the faculty hopes that this will be dealt with sooner rather than later.

"If the Law Society feels that as regulator it is not able to investigate and deal with that matter, no doubt another way can be found to do this on their behalf - although why the public purse should have to incur expense on something which the Law Society is already paid to do is not immediately obvious."

Lorna Jack, chief executive of the Law Society of Scotland, said: "We believe that after almost 20 years it is time for an independent, comprehensive review of rights of audience in the higher courts."

She added that the society has a "rigorous" regulatory system to ensure the public interest is protected and standards maintained.

Scots legal firm Brodies & Dean of Faculty threaten Parliament over asbestos claims legislation

Legislation designed to allow sufferers of medical illness related to asbestos exposure is to be challenged by the insurers, who have taken on legal representation in the form of Edinburgh legal firm Brodies LLP, and Richard Keen QC, the Dean of the Faculty of Advocates

Peter Cherbi’s “A Diary of Injustice in Scotland” reports the insurers idea is a judicial review against Parliament’s law making powers on this legislation :

Insurance firms with links to Scottish Government threaten legal challenge against Holyrood on asbestos claims reforms

Dean of Faculty Richard Keen QC to fight asbestos claims law. Insurance firms and lawyers who have strong financial relationships with the Government and the Scottish Parliament, have teamed up in an attempt to defeat through the courts, the Damages (Asbestos-Related Conditions) (Scotland) Bill, expected to be passed this week at Holyrood, which will allow victims of asbestos related illnesses to claim compensation from insurers for suffering such conditions as lung scars, which are an indication of exposure to asbestos.

The Edinburgh legal firm of Brodies has been called in by several insurance companies, identified in the Sunday Herald newspaper as AXA, Norwich Union, RSA and Zurich, to mount a judicial review legal challenge to the Damages (Asbestos-Related Conditions) (Scotland) Bill, which goes through Parliament this week. The insurers legal position is that the legislation proposed will allow people to claim compensation who suffer from ailments associated with asbestos exposure, which the insurers currently don't classify as harmful.

Richard Keen as you all know, appeared in the media only a few weeks ago demanding that class actions be allowed in Scotland against banks, however I take it that class actions for the victims of asbestos claims are not included in his thinking at the time.

I wrote a previous article on the Parliamentary hearings, which saw lawyers representing the legal profession attempt to argue that ‘pleural plaques’, a condition which indicates exposure to asbestos, was “good for you”, here : Insurance lawyers argue against laws to help asbestos victims asserting part of their suffering 'is a good thing'

Law Society’s insurers threaten Parliament. It is of note that two of those Insurers - Royal Sun Alliance (RSA) and Norwich Union are backers of the Law Society of Scotland's infamously corrupt Master Insurance Policy, which insures every member of the Scots legal profession including the dean of faculty himself, all other advocates, and even the legal firm of Brodies, who themselves have been caught up in claims made by clients against their negligence cover.

You can read more about the Law Society’s Master Insurance Policy here : The Master Insurance Policy, Marsh UK & corrupt practices by insurers of the Scots legal profession

A legal insider who was approached for comment said "It is true that all advocates are part of the Master Policy, although it is generally left to individual advocates to arrange their own Indemnity Insurance cover, albeit through the same firm. It is fair to say the dean of faculty is probably insured by the same insurers now challenging the asbestos claims legislation".

On being asked for his thoughts on revelations the same insurers deal with Government, he said : "It is my understanding that Marsh also arrange insurance cover for many public institutions, including Government. This insurance cover will also be underwritten by many of the same insurance firms who are affected in the asbestos damages bill now before Holyrood."

Scots Govt pays millions to insurers now threatening legal action. The Master Policy, run by Marsh UK, a subsidiary of the US Insurance giant Marsh, which itself has been caught up in insurance fixing scandals, amazingly shares among its clients, the current SNP controlled Scottish Government, which pays out millions of pounds of public money in Professional Indemnity Insurance cover for all Government Departments, many public bodies & quangos, and also the Justice Department's 'goliath' Government Legal Service for Scotland, staffed by 175 seriously well paid lawyers who under Justice Secretary Kenny MacAskill, also get their huge insurance subscriptions paid as expenses perks by the taxpayer.

You can read more about the Government Legal Service for Scotland (GLSS) and exactly what contribution they make to us here : Scottish Government's £10m in-house lawyers make their mark against legal reforms & public access to justice

Scottish Parliament also has links to insurers. Even the Scottish Parliament itself is not immune from associations with the insurers who are now challenging the legislation to help asbestos victims. The 13 lawyers assigned to the Scottish Parliament from the GLSS are also themselves insured by the same insurers who are threatening legal action against Holyrood, and several departments of the Scottish Parliament also allegedly rely on insurance services provided by Marsh UK and the RSA for their own indemnity insurance !

An official from a consumer organisation today who declined to be named said : "One could speculate a great deal on whether such involvement at all levels of government by a single insurance firm, or cartel of insurers, may give rise to the conclusion by some there is an inherent conflict of interest going on, which may lead to ineffective or badly worded legislation being passed, or a general lack of will on the part of politicians to do the right thing for consumers, on the basis they don't want to upset their services provided by the Insurance community."

So, we have a situation where the same insurers who are now threatening legal action against Parliament to prevent asbestos sufferers receiving compensation, are at the same time, receiving millions of pounds in taxpayers money from Government, the Parliament, and many public authorities in Scotland, to ensure protection against financial claims for wrongdoing or negligence in public office. Is that right ? Is this an acceptable state of affairs ?

Is it ethical to pay millions of pounds of taxpayers money to the same insurers who are fighting proposals of reforms in the legislative process which are designed to make life better for those who are suffering fatal illness ?

Let us remind ourselves of the arguments put forward by the insurance companies lawyers in Parliament against asbestos sufferers :

Scots lawyers argue ‘asbestos related illnesses are good for you’ :

From the Sunday Herald :

Insurance giants to challenge new asbestos legislation

Firms will fight move to allow Scottish workers to claim £50m in damages

By Tom Gordon, Scottish Political Editor

BRITAIN'S BIGGEST insurers are planning an unprecedented legal challenge to a new law which would allow Scots workers to sue for asbestos exposure.

Four firms are preparing to seek a judicial review of the legislation, which is expected to pass its final stage at Holyrood on Wednesday with over-whelming cross-party support.

The law is designed to give workers the right to seek compensation for scars on the lung known as pleural plaques, which indicate exposure to asbestos, but which are themselves harmless.

It is understood the Edinburgh law firm Brodies is co-ordinating the judicial review on behalf of AXA, Norwich Union, RSA and Zurich.

The lawyers have already engaged two of Scotland's most formidable advocates to attempt to overturn the law at the Court of Session. Leading will be Richard Keen QC, dean of the Faculty of Advocates, and he will be assisted by Jane Munro.

If successful, the challenge would humiliate the government and dash the hopes of thousands of people negligently exposed to asbestos.

While the average payout would be around £8000 per person, legal costs would be twice as much again, and ministers estimate the total cost to private companies will top £50 million.

Frank Maguire of Thompsons Solicitors, which represents many Scots asbestos victims, said the court would be loath to reverse the will of parliament, especially as it was a clarification of the existing law.

He said: "We have researched all the angles and we are pretty confident that this will be overcome. We believe this judicial review will be defeated."

A spokesman for justice secretary Kenny MacAskill said: "We are entirely confident that this bill is within the legislative powers of the Scottish parliament. There is a moral imperative here that the SNP government in Scotland is acting on, even if Westminster is not. The House of Lords judgment means that people diagnosed with pleural plaques would have to live with the worry of possible future ill health for the rest of their lives, with no recourse to claim damages."

The judicial review will not surprise the Scottish government. During a consultation last year, insurance firms warned the proposed legislation was "wholly wrong", would open the flood-gates to similar dubious damage claims, and ought to be dropped. Some warned of potential legal challenges.

One of the main complaints against the legislation was that it would allow people to sue for a condition that causes them no physical harm: pleural plaques are symptomless, and do not develop into fatal mesothelioma. Allowing people to claim damages for something that hasn't damaged them is perverse and up-ends centuries of case law, critics argued.

But advocates of compensation said people who discover they have plaques suffer psychological stress.

In October 2007, after more than 20 years of people being able to claim compensation for plaques, the House of Lords ruled plaques were too trivial to merit damages. The Westminster government has so far accepted the ruling, but in Scotland asbestos victims persuaded the Scottish government to legislate to restore the "status quo ante", and let workers pursue damages for the condition once more. Wednesday's third-stage vote will see the culmination of that two-year campaign.

Last week, ministers were forced to issue a revised financial memorandum to the Damages (Asbestos-Related Conditions) (Scotland) Bill, after realising it had underestimated the likely cost of compensation.

Settling the backlog against private firms is expected to cost £11.8m to £20m, followed by annual costs of £3.7m-£7m.

Councils also face bills of around £850,000 to settle existing cases, and annual bills of around £500,000.

The Ministry of Defence, which runs the Rosyth Naval Dockyard, and the UK Department for Business, which inherited liability for defunct shipyards, face total costs of around £7m, a bill the UK government could choose to hand back to Edinburgh.

Christine O'Neill, of Brodies, added: "We have been instructed by a number of insurers to look at a challenge."

Fraud claims against lawyers soar as Dean of Faculty spills the beans on mortgage fiddles in Scotland

Coming straight from the horses mouth, so to speak, the Dean of the Faculty of Advocates, Richard Keen QC, has let it be known that claims to the Master Policy and Guarantee Fund are rocketing over mortgage & buy-to-let frauds, where many Scots legal firms have seemingly faked securities for clients in order to obtain mortgages from banks ..

Some legal firms and solicitors seem to have faked up the paperwork for their own property deals too (we heard that – Ed)

Peter Cherbi’s “A Diary of Injustice in Scotland” reports more on the matter :

Dean of faculty hints at rising fraud claims against solicitors as 'Penman Levy' bites hard into Scots law firms

Richard Keen QC. Richard Keen QC, the Dean of the Faculty of Advocates, has admitted there will be a sharp rise in claims against solicitors, with both the Master Policy & Guarantee Fund being heavily affected as many of the dubious buy-to-let schemes, involving solicitors apparently faking up securities for clients, begin to be discovered.

Richard Keen QC said in “The Firm” article which you can read here : Reasons to be cheerful : “Are there any prospects for growth in the present environment? I would predict that over the next 12 months we are almost certainly going to see a substantial increase in the identification of loan fraud related to buy to let projects. I would not be at all surprised if this came to dominate claims on the Master Policy and the Guarantee Fund.”

Law Society will face many claims against crooked lawyers. Prospects for growth, as the Dean himself indicates, seem to be a huge jump in fraud claims against the legal profession, with the Master Policy & Guarantee Fund both being put to the test as many banks and financial instructions discover that many ‘buy-to-let’ schemes have frankly, been nothing short of bare faced fraud, on the part of many clients and solicitors, hungry for fat profits on highly dubious deals, backed by faked up securities many of the Banks failed to accurately confirm supported the transactions taking place.

You can read more about the buy to let fraud here : Buy-to-let fraud hits thousands

Buy-to-let fraud has hit the property market and the legal profession many times before, and many will remember how some clients of the defunct law firm Scott Moncrieff & Dove Lockhart (known for their jailed solicitor partner John McCabe where £4 million disappeared), were apparently also engaged with some of the solicitors in ‘buy-to-let’ fraud schemes, in which several Scottish banks lost a great deal of money.

Lessons to be learned – The ‘Penman Levy’ ends up costing Scots lawyers & legal firms dear. The growth in ‘buy to let fraud’ & claims against crooked lawyers is not the only growth area in the legal system these days .. as solicitors in Scotland must also now fork out a huge annual complaints levy, dubbed by some senior lawyers as the "Penman Levy", in reference to the multitude of 'crooked lawyer' scandals reported in the media after my own personal battle with the legal profession, which involved the Law Society's determination to defy prosecution in the case of crooked Borders lawyer Andrew Penman.

You can read more about the Scotsman’s reporting of the Andrew Penman case, here : Andrew Penman of Stormonth Darling Solicitors, Kelso -The Scotsman stories

However, while each Scottish solicitor was forced this year to pay an average of £400 each to fund the “Penman Levy" to run the Scottish Legal Complaints Commission, amounting to a whopping £2.4 million, it seems some solicitors have decided to recoup their ‘Penman Levy’ costs by fiddling their fee demands to clients, as many Scots are about to find out, if they are expecting a bill from their lawyer.

In a recent survey of 20 contacts throughout Scotland who have received demands from their solicitors for payment of fees, every single bill was found to be well far of the 'cost estimate' originally provided by the solicitor to the particular client, and it is also worth noting that in each case, where timescales for a resolution to the client's problem had been given, not one single case out of the 20 clients concerned, had progressed to a solution.

In one case, involving a boundary dispute with a neighbour, the client, of a famous Edinburgh legal firm, was told in 2005, it would cost in the region of £2,000 to study the papers, seek Counsel's opinion, and bring the case to court.

However, last week the client received a demand for an additional second Counsel's opinion, which came to £2,105.55 pounds alone, which the client was not informed had even been given in 2008. When the client asked to see the actual opinion, his request was refused, with a letter arriving two days later demanding full payment of the £2,105.55 otherwise immediate steps would be taken to recover the funds.

After a little checking by the client, directly with the Advocate, it has been discovered the QC who was supposed to have given Counsel's opinion on the boundary dispute, had never actually undertaken the work, nor even given the first Counsel's opinion the solicitor had charged his client £1520, during 2007.

Obviously in this case, a significant fraud has taken place against the client, by one of Edinburgh's 'most respected legal firms', and this particular case will no doubt generate another complaint against a 'crooked lawyer' to add to the thousands of complaints filed each year by clients against their solicitors in Scotland.

SLCC wont investigate cases before late 2008. However the ‘do-nothing’ Scottish Legal Complaints Commission will not even investigate this complaint or any matter arising from the case, as the SLCC conveniently decided it would not examine any complaints connected with legal work instructed prior to 1st October 2008, when the Commission began operation.

Studying the raft of solicitors bills recently sent out to clients, there does appear to be an increasing trend by Scots legal firms, desperate for any income they can get, to provide false accounts to clients, for cases which partners have taken on but have never seriously pursued as per agreements reached with clients to represent their legal interests.

The only advice I can offer for now is : If you have currently engaged a solicitor in any way whatsoever, you must carefully scrutinise your solicitors fee demands and bills, because the likelihood is, their fee demands are inaccurate and unjustified.

In another case, a family who were due to receive property as part of their deceased father's estate in the Scottish Borders, were forced to wait three years, before being told there was no assets left in the estate and they must put in money to pay a whopping £5,300 bill for legal services, undertaken by a notorious firm of solicitors based in the Scottish Borders.

In yet another instance, a client was recently sent a bill for £3,520 by a Glasgow law firm, despite the fact he actually settled the case with his neighbour over a land dispute in 2007. The recent fee demand was accompanied by a 7 day threat of court action if no payment was received, apparently being sent on the basis "the account had been misfiled and never sent out" - this despite the fact the client retained his fee payments and took his client file from his solicitor's office in 2007 after settling the case, and settling all fees due which totalled £1,477 at the time.

Many of the other cases brought to my attention of inflated accounts & demands from solicitors involve case work such as, land purchases or sales gone wrong, divorces, custody cases, boundary disputes, failures in executry work, false QC's opinions, backdated or allegedly misfiled accounts, fictitious work undertaken on cases which have no hope of reaching a settlement.

A paralegal I know who recently was sacked along with several other staff from her struggling legal firm, described the client billing situation in the Scots legal profession as "fraudulent at best", and went on to claim "at the moment its pandemonium in many legal firms I know of, where friends and paralegals I know personally have been asked to type up bills for clients which they know themselves are fictitious as the work has never been done".

"I remember a few weeks ago there was a client telephoned to speak to the senior partner over the size of his bill and the fact it was nearly £6,000 over the estimate initially provided. The senior partner told me he didn't want to speak to the client under any circumstances, and I was to call the Police if the client made any hint he would not pay or insulted any members of staff on the telephone".

"I know for a fact that client's case is a mess and twice the solicitor took the matter into court just to have the case adjourned so he could get more fees out of the client for doing nothing”

“The case, which involved a neighbour who had built on their land, has left the client with a property they cant sell. Probably the mess will be left for someone else to clean up if they can get another solicitor to look at it which I honestly don't think will happen after the mess my former employers made of their case."

So the lesson for anyone of you who has received or is about to receive a bill from their solicitor, is to check it out thoroughly, because the chances are, there is a lot of false work added to that account, which you either never authorised, or were never told would be required.

I suppose the other lesson, perhaps this time for solicitors is – speak out against the bad apples in the profession, because in the long run it will be a lot cheaper for you, generate much more respect, and probably bring in business & clients who for now, doubt your honesty and ability as a profession to regulate yourselves.

Oh, by the way, (I have to ask) how do solicitors really feel about having to pay out £400 a year to fund the SLCC, simply because the Law Society decided to fiddle the case against Andrew Penman, the Scotsman’s reporting of which brought about many hundreds more scandals involving crooked lawyers reported in the Scottish media to this day ?

Read on for some more examples of sleazy solicitors from Scotland’s legal profession (from the Scotsman) :

Sleazy side of legal profession

""We must ensure those with the highest standards are protected from the dishonest few" - leslie cumming

By GINA DAVIDSON

AS Leslie Cumming lay bleeding outside his Murrayfield home, the victim of a frenzied stabbing, his cool legal brain was probably already clicking into gear.

While his body fought to stem the flow of blood from a dozen wounds, his mind was whirring through the possibilities of who would have wanted to attack him. It wasn't long before the top law official was able, from his hospital bed, to give Lothian and Borders Police a rundown of lawyers he is and has investigated for suspected money laundering.

Now, two lawyers are to be interviewed by detectives in connection with the attack on the 62-year-old, while police also sift through all the Law Society files that are the work of months of painstaking investigation by chief accountant Cumming and his 12-strong team.

Yet while the attack on Cumming saw the reality of violent crime intrude into his highly regulated world of balance sheets and law books, it has also focused the public interest on corrupt lawyers. Ever since he was appointed chief accountant of the Law Society of Scotland back in 1984, Cumming has taken it upon himself to weed out rogue or "bent" lawyers throughout the country.

Back in the early 1990s, he ensured the Law Society took a hard-line stance against crooked lawyers who embezzled clients' money, changing the five-year inspection of firms' books to two years. The move came after lawyer John McCabe, who had worked for Edinburgh firm Scott Moncrieff & Dove Lockhart, was jailed for ten years for defrauding his clients out of more than £4 million.

More than two years ago the Law Society - which represents more than 8000 lawyers - along with the National Criminal Intelligence Service held a series of seminars aimed at raising awareness about the ways criminals might try to exchange stolen for clean money.

That was when the Proceeds of Crime Act became law, making it illegal for professionals to handle criminals' money without asking questions. As a further safety measure, he also oversaw the introduction of regulations which mean every firm must submit a financial certificate every six months to the Law Society, providing financial information about the firm and confirming compliance with accountancy rules.

Such scrutiny was bound to make him some enemies. Yet Cumming has always maintained that solicitors in Scotland are in the majority honest, with just a few spoiling the reputation of the profession. He has said: "Our system relies on the near 100 per cent honesty of the profession which is what we find time after time.

"It is our duty to the profession and their clients to ensure that those who maintain the highest standards and their clients are protected from the actions of the few who act dishonestly."

Sources in the legal profession claim there are currently 19 lawyers on petition charges - which means they've committed an offence which could mean a minimum sentence of more than five years in jail - although a spokesman for the Crown Office says they have no way of confirming the number as they don't list occupations.

Legal sources also suggest that, despite the Proceeds of Crime Act which could see lawyers face up to 14 years in prison for turning a blind eye to money laundering, there are still those who believe the rewards are worth the risk.

"It all depends on how well your practice is doing, that seems to be the excuse when people are struck off," says one Edinburgh lawyer. "That if business isn't going so well, and they have clients who have money to 'invest' in property, then it becomes an option. But lawyers know the risks. If a client comes in with £100,000 in cash and says he wants to buy something, be it property or shares, bells should be ringing.

"If a lawyer doesn't do the necessary checks, ask the necessary questions and then gets found out to be dealing with dirty money, then they go to jail, it's as simple as that. Most would think it isn't worth the risk, but there will always be those who are blinded by the cash."

Another adds: "The change in the law has been onerous for solicitors. It means that when a new client comes through the door we have to ask for passports, driving licences, utility bills . . . it's a bureaucratic nightmare.

"If there's any reason to suspect the client of trying to pass off stolen money you have to report them to NCIS in England. The solicitors are being asked to police clients rather than the police, and if we get it wrong we go to jail."

Another city solicitor says: "Embezzling has been seen as a way out of trouble for some lawyers in the past, but these days firms' books are gone through with a fine-tooth comb every two years. The accountants at the Law Society know exactly what to look for, so there's no hiding any dodgy practices."

However, despite all the checks and balances, one case which slipped Cumming's net for a decade, until just two years ago, was that of former solicitor John Kennedy Forster. A partner at Stranraer-based solicitors Ferguson & Forster, MacFie & Alexander, he admitted 35 charges of embezzling £667,000 from his clients to pay for school fees, his large home with outdoor swimming pool and foreign holidays.

His sentencing was deferred several times at the High Court in Edinburgh, to allow for compensation proceedings to be resolved and for a report to be submitted by forensic accountants. Finally though on March 18, 2004, he was jailed for six and a half years.

According to Cumming, the case took so long because it "involved a uniquely complex system with the evidence well hidden".

He added: "But as with all cases, once the cracks appeared layer after layer of the fraud was exposed and produced the evidence which we needed and which the Crown then used.

"Most successful frauds involve several strands and depend on a position of particular power or influence. The hardest to uncover are those where there's an element of complicity. It's a constant challenge and each time we find a scheme we ensure that all our inspection teams know about the mechanisms and how it worked so that they can recognise the signs in the future."

Police sources here in Edinburgh believe there are few, if any, corrupt lawyers working in the Capital, and that the Law Society's checks are currently adequate for preventing illegal financial activities, although they admit there will be those who don't get caught quickly enough.

One says: "I've seen a few dodgy lawyers in my time, but not on the financial front.

"There's more organised crime in Glasgow than Edinburgh but then the property market here is much more expensive and so that maybe proves the attraction. But I do think that there's only a few corrupt lawyers in Scotland - although they can be damaging to the whole of the profession."

But perhaps the most telling thing about crime among Scotland's lawyers is that claims on the Law Society's Guarantee Fund - a fund which compensates clients who have suffered loss as a result of a solicitor's dishonesty, and which is paid into by partners in law firms - have steadily fallen under Cumming's tenure.

Each partner pays around £200 a year into the fund, which is in excess of £1 million. For the year 2003-2004, the last year for which figures are available, the total paid out was £187,000, whereas when the fund was first established in the early 1990s, the compensation payouts were as high as £1.35m.

LOWERING THE BAR: CROOKS WHO MAKE UP LAW'S LIST OF SHAME

1991: Edinburgh lawyer John McCabe was jailed for ten years after admitting 34 charges of fraud totalling more than £4 million. He conned banks and building societies into handing over loans of up to £500,000 and ploughed the money into disastrous business ventures. He fled to South America, leaving a taped confession, but returned within a few days and was arrested at Heathrow Airport.

1996: A five-year sentence was handed to David Hoey, a lawyer from Leven, after he was found guilty at the High Court in Edinburgh of stealing more than £500,000 from elderly clients. He had already been struck off when the offence came to light.

1996: After a probe into his firm's financial affairs, Donald Pirie was struck off. A police investigation found that the Cowdenbeath-based lawyer, who lived in East Linton, had embezzled £63,000 from clients, including £40,000 from his parents. He was jailed for five and a half years.

1997: Stephen Crilley pocketed £45,000 in fees due to his firm because he believed he was underpaid. He was a partner with Grant & Wyllie until resigning in 1996 and was struck off the following year. He avoided going to prison by repaying the money.

1997: Pat Elliot was jailed for 18 months after she was found guilty of stealing £60,000 that was destined for two charities from a client's will. Elliot, of Crown Terrace, Glasgow, was also struck off.

1998: Alexandra MacRae, a lawyer who underwent a sex-change operation and was previously known as Steven Raw, admitted to embezzling more than £16,000 from a client's account in order to pay her Dundee firm's debts. She was struck off before later being sentenced to 15 months. However, she appeared in court again in 2001 and was sentenced to three years for embezzling almost £100,000 from an elderly client while she had worked as a lawyer.

2000: William Stevens of Saughtonhall Drive was jailed for four years at the High Court in Edinburgh for embezzling cash from elderly clients to pay for school fees. He was also struck off, although had resigned as a partner with firm Bennett and Robertson in 1997.

2001: Alistair Liddle prompted a police hunt in 1997 after vanishing, leaving his family in Forres, just as the Law Society was to investigate his firm. He was struck off in 1999 and traced to Cornwall in 2001, where he admitted embezzling £17,875 from a client's account. He was jailed for a year.

2001: Solictor Bruce Gordon of Piersfield Terrace in Edinburgh was struck off after being found guilty of professional misconduct for embezzling £55,000 from a dead man's estate. He was jailed for a year.

2003: Alastair Hall, a former partner of A&R Robertson and Black in Blairgowrie, was jailed for 11 years after stealing £500,000 from clients. He admitted five charges of embezzlement, two of fraud and a bankruptcy offence.

2004:Edinburgh lawyer Ricky McAnulty was jailed after admitting embezzling almost £20,000 from the accounts of five clients. He was struck off and sentenced to 18 months in Saughton.

2004: Douglas Criggie, who owned Cumberland Street firm Criggie & Co, was charged with embezzling £50,000 from clients. But his firm was sequestrated after it was discovered he had unpaid loans and bills totalling £300,000 and he went bankrupt. He was struck off by the Law Society in May 2004 and the Crown Office is still considering prosecution.

2005: Glasgow lawyer Calum Blyth was jailed for two years after being found guilty of embezzling £108,000 from his clients and obtaining a further £27,000 by fraud while working for Blyth Solicitors between 1996 and 1999

Dean of Faculty wants Scotland’s class action restrictions removed to sue Banks

Richard Keen QC, the current Dean of the Faculty of Advocates, has come out in favour of scrapping Scotland’s infamous restrictions on Class Action lawsuits.

The Dean, however, only seems to feel Class Actions should be allowed against Banks & financial institutions … which seems to indicate the cosy relationship between the legal profession and the Banking sector has hit the rocks … no more cheap finance lads ? – Ed

We noticed an interesting version of the Class Actions story over on Peter Cherbi’s “A Diary of Injustice in Scotland” here : Dean of Faculty calls for class actions against banks as Scots legal profession turns against financial sector

The Scotsman reports :

QC: Allow class actions against banks

Published Date: 26 January 2009
By Jane Bradley and John Forsyth

ONE of Scotland's most senior lawyers is calling for ministers to scrap the restriction banning class actions in Scots law, a move that could see a wave of claims against banks.

The suggestion by Richard Keen, QC, the dean of the Faculty of Advocates, would open up the prospect of challenges by groups of shareholders against financial institutions over a lack of information about the state of their business.

It is understood that Scotland's legal profession believes there could be a raft of actions against Royal Bank of Scotland and other financial institutions on the basis that the information given out at the time of rights issues had been inadequate.

Mr Keen said: "The absence of class action certification inhibits pursuit of remedy. It is difficult to fund major litigation of that kind unless you can put together a class action."

Mr Keen's comments follow a string of calls from politicians demanding legal and political action to tackle the crisis – with RBS most in the firing line. Alex Salmond, the First Minister, said yesterday that he believed a parliamentary inquiry should be carried out into the banking crisis in Scotland.

He said any investigation should cover the Financial Services Authority and the role of politicians in overseeing the administration of the financial sector "to ask them why they were asleep on the job".

He said: "I'd rather favour a parliamentary investigation, not just into the Royal Bank of Scotland – that would be daft, as the Royal Bank of Scotland is only one of hundreds of banks worldwide which has got into serious trouble – but into the financial sector."

It emerged at the weekend that Christine Grahame, an SNP MSP, has written to Lothian and Borders Police, demanding that an investigation be carried out into RBS's conduct over its two rights issues last year, while Tavish Scott, MSP, the leader of the Scottish Liberal Democrats, has called for an investigation by the Serious Fraud Office.

Under the leadership of Sir Fred Goodwin, RBS carried out its first £12 billion rights issue in April last year, when thousands of investors forked out £2 a share for a tranche of new stock in the firm. A second rights issue, in November, was shunned by investors and the government had to underwrite the £15 billion issue. RBS's fortunes have nosedived in recent months, with investors watching shares plummet, to close at 12.1p on Friday.

Mrs Grahame's letter told police she believed RBS "appeared to have committed a fraud".

RBS revealed last week it was on course for the biggest loss in UK corporate history, as it expected to write down as much as £20 billion on the falling value of its assets.

Mr Scott said: "I think the banks across the UK must have known what their financial position was much earlier than they were letting on, and that particularly applies to RBS.

"At the time they were asking investors for more money to help their financial position, as RBS giving a full picture of how strong or weak they were as a financial institution? I genuinely don't know, but I believe that the Serious Fraud Office should have a look at it."

He warned that a political inquiry could turn the crisis into a partisan issue and could detract from solving the question of whether investors were misled.

Just last week, the veteran lawyer Ian Hamilton lodged a small-claims action against RBS, saying he had been persuaded to buy 640 shares at the £2 offer price in its 2008 rights issue.

A spokeswoman for RBS refused to comment.

Richard Keen QC, new Dean of Faculty of Advocates outlines policy to protect monopoly on legal services

Richard Keen QC, the new Dean of the Faculty of Advocates, outlines his views on what policies he would like to dictate implement, and how the Faculty will tackle such issues as access to legal services - which the new Dean definitely wants to retain as a monopoly rather than allowing anyone else in.

Peter Cherbi reports on the issue from his blog A Diary of Injustice in Scotland and reminds us of some of Mr Keen's other achievements regarding access to legal services ...

QC who fought to prevent FOI revelations on access to justice reveals 'little change' plans as Dean of Faculty

No change is good for the legal profession as many within it's senior ranks would agree.

Keeping complaints in-house, preventing independent scrutiny of solicitors activities, keeping 'meddling' politicians & critics out of the debate on legal issues have long been and still are some of the top priorities of the Scottish legal profession - so change at the top usually means little.

Little it certainly is, as the new Dean of Faculty, Richard Keen QC, discusses his plans for the Faculty of Advocates in the Scotsman this week, which literally amount to window dressing, with the odd repair of a broken window thrown in for good measure.

Mr Keen, who is widely known for a costly battle at the taxpayer's expense to prevent the release of a Freedom of Information request on why Sections 25-29 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 were kept off the legislative books for some seventeen years, brings little change of benefit to the public in his new role as Dean of Faculty, but that is to be expected, as the position of Dean of the Faculty of Advocates has little responsibility or regard for the masses of Scots denied access to justice on a daily basis - more, his thoughts wander back to maintaining a closed shop of legal services, preferring the position of the legal profession dictating who among us has access to legal services, and who gets to take the more usual 'justice denied' route, after throwing as much money at their legal agents of course ...

You can read more about my earlier coverage of the FOI court battle between the previous Scottish Executive, here :

Scottish Executive fails to block FOI disclosure on records of restricted access to Courts

Scottish Executive drops FOI disclosure battle over restrictive access to Courts while thousands go without representation

In a quote from the Scotsman article, which typifies the "Douglas Mill" doctrine of 'lets keep control over access to justice for lawyers so we make the money and control legal services as a monopoly', Mr Keen puts forward the tried & tested ideas of protection of monopoly :

"Proposals for reform that may seem attractive for a very large jurisdiction may, if unthinkingly applied in Scotland, be extremely destructive," he says. "I think we are entitled to contemplate solutions that are tailor-made to our jurisdiction and are not simply a pass-on, for example, from England. This is where I have to say I have some reservations about the OFT's approach, which has a slight hint of 'one size fits all' about it."

Simply, the Scottish legal profession does not want to lose its monopoly on the legal services market - after all, that's what the seventeen year campaign to keep Sections 25-29 of the 1990 Law Reform Act off the books was all about, where plans to allow anyone attaining a certain level of standards & qualifications to enter the legal services market frightened the Scottish legal profession so much, they ensured the relevant parts of law never became legislation until March 2007.

Further revelations in the bitterly fought court battle to keep the public from knowing why those laws were never enacted saw an exchange of letters between the then Lord Advocate Lord Hardie and civil servants where Lord Hardie's ideas to repeal the 1990 laws to reform access to legal services were discussed, with intent to keep anyone who needed to use legal services in the firm grip of the legal profession itself.

Another sad fact of the current changes in the legal profession is the Justice Secretary simply does not give a damn about the public interest, preferring blatantly, to support the legal profession directly against the public at each turn as policy after policy comes & goes, leaving the Scots public out in the cold while the legal profession and a few at the top of the Law Society get to fatten their wallets even more at your expense.

Again, from the Scotsman article :

"From only a few meetings with the minister and his officials, I have come away with the clear impression they want to see change within the legal profession in Scotland, but not regulation for the sake of it," he says.

"What they want to see is innovation and they want it to come from the legal profession itself – they don't want to impose it. They want to see a distinct legal profession that supports a distinct legal system and that is capable of making Scotland an attractive place to come and do business, in the sense of a place where people will want to employ legal services for dispute resolution, commercial litigation, judicial
review."

Amazing stuff, but who would want to use legal services in Scotland in the dangerous unreliable, untrustworthy state they are in ?

Why on earth would anyone consider Scotland an attractive place to come and do legal business with the same legal services which have ripped off the public and corporations alike to the tune of tens of millions of pounds a year, and get away with it ? Why would an international company wish to employ firms of Scots lawyers only to be let down in badly worded contracts, failed & costly litigation which never had a chance of success in the first place, and a general attitude within Scots legal firms to pass over the intentions of a few corporate clients to other companies for a slice of the action to the legal firm itself - yes it does happen ...

So, no change at the Faculty then which benefits the public in any way whatsoever, and little regard at the Justice Department for anything which does not support the demands of the legal profession to do as it pleases ...

Oh, how Scotland needs a more impartial Justice Secretary, and soon ...

The Scotsman reports :

New Dean, new dawn

By JENNIFER VEITCH

AS ONE of the counsel at the inquest into the death of Diana, Princess of Wales, Richard Keen QC is undoubtedly embroiled in one of the highest-profile cases currently running in the courts. But, despite of spending four days a week in London representing the parents of Henri Paul, Dodi Al-Fayed's driver, Keen is still finding time to run affairs at the Scottish bar. And it seems members of the Faculty of Advocates should expect a new dawn under their new dean.

Keen is wasting little time in setting out his stall for some significant, and potentially controversial, changes at the bar. Top of his list is putting an end to the Faculty's rule against counsel teaming up with solicitor advocates to create so-called "mixed doubles".

Direct access to advocates will be also up for review and, in the wake of Mike Jones QC's recent move to become a solicitor, Keen also wants to make it easier for lawyers to move between the two branches of the profession, with a choice of business models. Keen is clear the Faculty must rely on promoting the expertise of its members and sweep away restrictions that critics complain give it an unfair advantage in the marketplace.

"I would like to see a situation in which there is effectively freedom of movement between the two branches of the legal profession, so that there is no insurmountable obstacle to a person moving from membership of the Faculty to membership of the solicitor branch of the profession and vice versa," he says. "For example, it will mean a QC can choose to be an independent self-employed practitioner within the Faculty business model, or he may choose to become a partner in a firm of solicitors, in which case he simply moves over to that business model without any real difficulty or any real barrier."

Keen says he has no problem with Jones's decision to leave the Bar to join solicitors' firm Simpson and Marwick.

"The simple fact is he is an extremely good example – here is a QC who was practising in the Faculty on Friday and is a QC practising as a partner with Simpson and Marwick on Monday. I don't have a problem with that.

"But why would you want him to be a QC as a member of Faculty and a QC as a partner with Simpson and Marwick? All that does is create conflicts of interest and raise issues about him having two sets of overheads and regulatory problems."

Such debates are set against a backdrop of likely reform of legal services in Scotland, with justice secretary Kenny MacAskill having challenged the profession to come up with its own solutions to the issues raised by the Office of Fair Trading (OFT) in its report on last year's Which? super-complaint. The biggest question surrounds the possible introduction of alternative business structures, such as multidisciplinary partnerships. Keen is concerned that importing Clementi-style reforms to a small jurisdiction would not be appropriate, but he does not see that Scotland's size should prevent it competing on an international level.

"Proposals for reform that may seem attractive for a very large jurisdiction may, if unthinkingly applied in Scotland, be extremely destructive," he says. "I think we are entitled to contemplate solutions that are tailor-made to our jurisdiction and are not simply a pass-on, for example, from England. This is where I have to say I have some reservations about the OFT's approach, which has a slight hint of 'one size fits all' about it.

"But we are a nation, not a parish, and we ought to be capable of competing at an international level. And if we are not, we will see a steady drain of the most innovative and intelligent lawyers south of the Border."

The Faculty has commissioned an independent review of its business model, which Keen has pledged to publish, whatever its findings. Meanwhile Keen says he has been impressed by the attitude of the Scottish Government towards the future development of legal services in Scotland.

"From only a few meetings with the minister and his officials, I have come away with the clear impression they want to see change within the legal profession in Scotland, but not regulation for the sake of it," he says.

"What they want to see is innovation and they want it to come from the legal profession itself – they don't want to impose it. They want to see a distinct legal profession that supports a distinct legal system and that is capable of making Scotland an attractive place to come and do business, in the sense of a place where people will want to employ legal services for dispute resolution, commercial litigation, judicial review."

This is a realistic ambition, he adds, so long as the limitations are recognised, and Scotland innovates to compete with other jurisdictions, perhaps by moving to award full costs to parties who win their cases in commercial disputes.

"I do think we have moved away from the rather negative attitude of looking on the legal profession as being there to service criminal work, family law and these areas," he adds. "All these areas are important, of course they are, but there is so much more that can be done."

Whatever future direction is taken by the Scottish Government, Keen intends to address some of the concerns raised by the OFT, including the issue of mixed doubles.

"We must introduce an effective and level playing field between members of Faculty and solicitors," he says. "I don't myself see a future for the prohibition on what's termed mixed doubles. We need to address that sooner rather than later."

Keen insists he considers this "a matter of substance" and not merely one of trying to change perceptions that the bar is protectionist. He adds it will be unpopular with some counsel.

"It is not going to be a welcome development for certain parts of the bar. Regrettably it will be open to abuse, although I hope it won't be abused, by certain sections of the legal profession. We have to remember solicitors tend to be the gatekeepers for provision of work, and there is a reluctance to see a situation in which they as the gatekeepers instruct counsel to appear with them only where they see a problem or an issue they don't want to have to resolve themselves."

He adds: "We must resolve the potential conflicts that may arise. But I see no reason why they should not be addressed and dealt with within the foreseeable future. I mean to see it disappear in 2008."