Item 3 on the agenda is the inquiry into regulation of the legal profession. Does any member have an interest to declare for the Official Report?
My husband is a solicitor and is a former member of the council of the Law Society of Scotland.
I am a lawyer and a member of the Faculty of Advocates. Recently, I have conducted at least one case before the Scottish solicitors discipline tribunal.
The inquiry seems to have attracted a fair deal of interest, but this is simply a briefing in advance of the inquiry. The purpose of the briefing is to assist us in refining our terms of reference—a subsequent item on today's agenda—and is not formally part of our inquiry.
I will begin by introducing my colleagues and myself. Michael Clancy is our director of law reform; Anne Keenan is from the law reform department; David Preston is the vice president of the Law Society; and I am the current president of the society.
The Solicitors (Scotland) Act 1980 sets two objectives: the promotion of the interests of the solicitor's profession in Scotland and the promotion of the interests of the public in relation to that profession. Can there be a conflict between those two objectives?
The Royal Commission on Legal Services that reported before the Solicitors (Scotland) Act 1980 was passed summed up the position. The committee will no doubt refer to the commission's report during its inquiry. That report stated:
You mentioned that other bodies are involved in the regulation of solicitors. What are those bodies and how do they tie in with the Law Society in the overall regulation of the profession?
There is a statutory framework to the whole system. The 1980 act is the basis of what we do and lays out the structure for how we conduct ourselves and regulate the profession. Below the statute, there is what we would call our subordinate legislation—practice rules, codes of conduct and practice guidelines. They come from the Law Society, but because we operate in a statutory framework, we are ultimately answerable to the Parliament, which is why we are here.
Who sets the criteria for admission to the profession? Who is involved or consulted when determining the regulations for the education and training of solicitors? Could you cover continuing professional development in your response?
That is a big question, but I will do my best. It is a particularly big question for us at the moment, because the solicitor training regime is changing. I will start with the basics. The profession is open to all who have the necessary academic qualification and are aged 21 or over. There are caveats. Because of convictions, certain individuals may have difficulty entering the profession, but if we leave that to one side, the principle is that the profession is open to all.
Those are your regulations and you decide what subjects entrants must have.
Some of that is determined by the 1980 act, which lays down the rules for admission to the profession. The new part of the training regime that we have installed has been worked on over the past seven or eight years, with the aim of providing the best-qualified solicitors for the public.
Presumably you monitor the quality of the training that is on offer. Are you concerned that you need to have more or better training? If so, do you have any plans to develop the training?
One reason for embarking on the new regime is the realisation that every system has to be assessed constantly. If improvement is needed, steps have to be taken. Because of the course, the training of individuals will be monitored more now than in the past. Individuals have to sit a test at the end of their two years' training; it would be difficult for people to pass that examination if they had not been properly trained in the two years. We have addressed training and are considering it constantly. If any changes are needed in future we will put them in place.
Are you happy with the quality of training for continuing professional development?
The quality of all training varies. There are a number of training providers. The universities are involved, as is the Law Society, whose update department has a number of successful training courses. Local faculties of solicitors are arranging their own training, because it is not especially easy for people who practise in rural areas to travel—for example, from Kirkwall or Skye—to do training. Videoconferencing is used for training, for example by the Law Society update courses.
You mentioned that the monitoring process for newly qualified solicitors who have to go through a two-year traineeship has been improved. Who monitors those trainees in the first place? What training do people receive to meet the standards that are appropriate to undertake the monitoring?
The profession must be open to all. We must not put barriers in the way of anyone; everyone, regardless of background or income, must be able to train to become a solicitor. We must start from that viewpoint.
I know that there is a new system of monitoring the monitoring, but I am concerned about the monitoring of the trainer. I will give an example from my previous profession. When I finished my degree and wanted to become a clinical teacher, I had to qualify as one. I then had to renew that qualification continually to allow me to train other students who were coming through—because, although I might have been well qualified in the profession, I might not necessarily have been good at teaching it and providing another person with the skills that they needed.
That is an interesting and valid point. We constantly review things and that is an aspect that we will address.
I want to move on to questions about discipline and the investigation of complaints. How many complaints about solicitors does the Law Society receive in an average year?
First, I will put the question in context by talking about the way that solicitors work and what they do. My local newspaper describes what I do as "soliciting".
Sorry, can I stop you there? My next question was going to be on how many solicitors are in private practice and how many are in the public sector or in business and commerce.
It would probably be best to deal with that question now, because it puts things in context. On 31 October 2000, there were 8,609 solicitors. In private practice as principals—that is, partners in firms or sole practitioners—there were 3,552. There were 266 consultants, who tend to be solicitors who are perhaps semi-retired but who have been partners in firms. There were 802 associates, who are solicitors who are not partners but who, in some firms, are perhaps on the step between partners and assistant solicitors. There were 1,793 assistants.
How is that split between public and private work?
There may be conduct matters relating to public legal work, but for the purposes of these statistics we are considering only solicitors in private practice. They are the ones who are providing the direct advice and work for clients. Solicitors who are not in private practice are employed, whether by the Scottish Executive, by the fiscal service or by companies such as Shell.
Does the Law Society have special rules or procedures relating to discipline of solicitor advocates?
There is a special code of procedures for admission. Solicitor advocates are solicitors who have extended rights of audience.
So they would be disciplined in the same way as solicitors who do not have that extra string to their bow.
That is right.
I would like to ask about your procedure for dealing with complaints that you receive against a solicitor. How do you go about categorising complaints that relate to negligence, professional misconduct and so on?
Negligence is not a matter for complaint. It involves a breakdown in the contract between the client and his or her solicitor, and the outcome of such cases is determined ultimately in the courts. It is important that we make that distinction. The society has laid down rules about professional indemnity insurance, to ensure that solicitors have the proper cover and that clients can be compensated properly when solicitors are negligent. If someone contacted the Law Society to complain about a matter that clearly involved negligence, we would not deal with that.
Would the client be advised of that?
Yes. In 2000, 17 people were so advised.
I believe that negligence is the factor that creates the most problems for you. One problem that seems to arise is that when someone has made a negligence claim against a solicitor, it is extremely difficult to find other solicitors to pick up the case and assist the individual in the courts. What role does the Law Society play in such cases? What do you do when you cannot find solicitors to take on such cases?
That is a difficult problem, which is double-edged. If I said that the Law Society should have a panel of people who would deal with such cases on behalf of consumers, some would accuse us of bringing that into our club and controlling it, so we cannot have such a panel. Instead, we have a troubleshooter scheme. If someone is toiling to find a solicitor to assist them, the Law Society—at arm's length—will pay for two interviews, the preparation and preparatory work for that person, to see whether they can take the matter further.
I think that we have drifted off the point. I recognise that no court case will be 100 per cent satisfactory—whoever wins will feel good, but whoever loses will feel bad. However, I come back to the point on negligence and how the Law Society addresses the fact that, on occasion, individuals find it difficult to find a solicitor to oppose another solicitor.
To be frank, I do not consider that the difficulty would be in finding a solicitor to oppose another solicitor. The difficulty may be in finding a solicitor who would be prepared to take on a case if there was no merit in the case. That is difficult, because, again, it could be said that that is an example of the profession looking after its own.
You said that, when a client comes to you with a case that clearly involves a matter of negligence, you advise them that remedy must be sought in a court of law as opposed to through the Law Society. Phil Gallie pointed out that people find it hard to secure the services of a solicitor who is willing to take up such a case. You also mentioned that you operate a troubleshooting scheme that could help with such situations. Would you tell someone who was having difficulty in finding a solicitor about that scheme?
Yes. We have no statistics on that matter, as it is difficult to link together all the incidents, but we know that the majority of cases are dealt with when people go to a solicitor. Solicitors are in business to make money and, if they can take on a case and fulfil a professional duty for a client, they will do that, regardless of whether the case concerns another solicitor. A solicitor may not want to raise an action against a local solicitor because, apart from anything else, the perception of the client would be affected if he or she saw the two solicitors in the bowling club. In such a situation, a solicitor might refer the case to a solicitor outside the area.
I wanted to establish whether clients are made aware of all the procedures at the time as, often, clients can be unsure about where they stand.
If the matter cannot be conciliated away, the case manager, the client and the solicitor correspond to try to establish the circumstances of the case. After that, there might still be a possibility of conciliation. If we accept that there is no prospect of that happening, the matter will be referred to a client relations committee, of which there are four that deal with general business and one that deals specifically with legal aid matters. That committee was set up to deal with complaints that were referred by the Scottish Legal Aid Board, although there have not been many such complaints. The four mainstream committees are made up of 10 individuals, four of whom are lay members and the others of whom are council members and solicitors. We have had lay involvement in our committees for many years and, over the years, that involvement has become more refined. The lay members are not paid, and are chosen by an interview panel after they answer newspaper advertisements. We try to ensure that the interview panel has a degree of independence, and I think that the last round of interviews involved Sheriff Principal Nicolson.
We had an indication that the witnesses had to leave by a specific time. Is that still the case?
We have five or 10 minutes.
We should leave by half-past 4, if that suits the committee.
We should try to make quick progress, on both questions and answers.
I am trying to follow the paper trail. Once the case manager has referred a case to the committee, do they make a recommendation to the committee, which the committee considers in the light of the report?
No. The reporter would make a recommendation to the committee.
Would the committee consider the report against that recommendation?
Yes.
Then the case is referred to the council. What standards does the council work to in deciding the action to be taken? Does it have a benchmark? For example, if the solicitor had done X, would the council be expected to apply the sanction of Y?
Are you asking if we operate a tariff?
Yes. What criteria does the council work to? I know that criteria can be difficult to work to in such circumstances, but—
Criteria can be very difficult to work to. The basic criteria are the Solicitors (Scotland) Act 1980—the statutory framework—and case law. The question of misconduct was determined in the court: professional misconduct was determined to be conduct that was serious and reprehensible. That is the Law Society's standard.
Could you clarify how long it takes to deal with a case? I am reminded of a double-glazing salesman who came to see me once. He took two hours to tell me how great his windows were, but he did not tell me the price. The ombudsman said that it could take 121 weeks to deal with a case.
Sorry?
The ombudsman said that two cases took 121 or 122 weeks to deal with. Are you satisfied with that? Is that length of time typical?
I think that the ombudsman said that that was not typical. She also referred to a turnaround time of a year, and said that she would be surprised if the turnaround time was less than a year. However, she was speaking about the cases that go before her. The ombudsman considers only the cases of dissatisfied clients who have been through the Law Society's complaints system and who remain dissatisfied with the way in which their complaint has been handled. That is all that she considers. She does not consider the way in which we handle complaints within the society. In 1999, 95 cases were considered by the ombudsman, compared to 1,300 that were considered by the society.
In answer to Mr Martin's question, unlike his double-glazing salesman, we intend to be transparent. We will make those figures available. However, it might be appropriate to do so in the context of further written evidence, which we know that you will want soon.
I picked the figure of 201 days because it was close to the period of six months to which the ombudsman has reduced her turnaround time through valiant efforts. She referred to the care that must be taken over each case. The ombudsman produces an opinion on the basis of the file that has been compiled, whereas we deal with the solicitor and the client, going backwards and forwards in trying to clarify issues. In 1999, we achieved 81.8 per cent of turnaround targets. We can provide the figures for you.
The ombudsman said that the Law Society would not investigate cases in which
Solicitors have contracts with their clients. In an adversarial situation—for example, in a court action—that solicitor has no contract with the client opposing his or her client. Therefore, we do not consider it appropriate for that solicitor to raise any question regarding the conduct of the solicitor of the opponent.
I understand that. However, I am talking about the relationship between the solicitor and his own client. The ombudsman is saying that you will not consider a complaint from someone about the quality of the advice or the professional judgment of their own solicitor. That is a bit like saying that you will not consider matters of negligence.
If someone was engaged in a court case and their solicitor did not call a witness that the client thought should be called, at one level that could be regarded as negligence. At another level, it could be regarded as the provision of inadequate service. However, the fact that the solicitor did not call that witness does not in itself mean that either of those perceptions is accurate.
I want to pursue that. In general terms, you will not consider somebody's complaint about the professional judgment or the professional quality of the advice that they receive.
That is right.
I appreciate that such a complaint would often be resolved in a court case, but there might not be any value in holding such a case. Why would you not look into such a complaint? What is wrong with the Law Society forming a view as to whether advice that has been given falls below the standard that would be expected of a good competent solicitor? If the solicitor does not like the ruling, he can appeal against it.
I think that we do that. For example, if a solicitor fails to record a deed for someone's house and says that it is a matter of his judgment whether he should—
But that could not be a matter of judgment.
We could say that it is not a matter of judgment. If it was a matter of cross-examination during a court action, and of whether a particular question was asked or not, we would say that that was a matter of professional judgment. The other example was, on one level, one of negligence; if there was negligence, it is possible that there was either misconduct or the provision of inadequate professional service. We would look into that.
I do not want to go round in circles—that is perhaps my fault—but, in general terms, how would you summarise the circumstances under which you would say to somebody that you would not investigate a complaint? I suspect that the public feel aggrieved when they are unable to get matters dealt with.
In answer to that, one might say that we work within a framework of law, and that we have obligations to investigate complaints of professional misconduct. If, on first flush, the complaint does not relate to an issue of professional misconduct, we would have no locus and no power to investigate it—
Would the giving of advice that you—as a group—believe falls below the standard that is expected from a solicitor come under professional misconduct?
It might under certain circumstances, but, as I was about to say, we also have an obligation to investigate complaints of inadequate professional services. If, when a dissatisfied client writes in, one can identify that a complaint comes under the category of inadequate professional service, we would have a locus and the power to investigate the complaint. We must remember that we work within a framework of law; if we transgress the framework of law, we are acting outwith our powers. We would then reap the consequences of that through a judicial review or whatever other remedies were available.
I have, for the record, a final question. I appreciate that this is a grey area, and that it is difficult to determine where the line is drawn. There might be a suspicion that the Law Society is more than keen to draw the line in a certain place and not to investigate matters. In your own mind, do you feel quite satisfied that you are drawing the line in the appropriate place?
Again in the spirit of transparency, when we submit written evidence we will address that question and we will identify where the line is drawn and how we quantify the question of whether that line is sufficient.
And the question whether the line should be drawn somewhere else?
Yes—we would question whether the line should be drawn somewhere else.
Clearly, Parliament could address that.
Indeed.
When explaining what goes on and the rationale behind your procedures, you have referred to the fact that there is a contract between the solicitor and the client. Is the contract any different between a client and anybody else who provides another kind of professional service?
I cannot speak about other professions, but the difference with the contract that a client has with a solicitor is that the solicitor must not only take account of the contract with his or her client, but must do so against the background of the obligations in the framework in which the solicitor works, and in accordance with and with regard to professional rules and the code of conduct.
Is the contract implicit? When I go to see a solicitor, I do not sign a contract when I go through the door.
It is a consensual contract, which does not have to be written down. You could make a contract with me for me to act as your solicitor.
When I go to a dentist, a French-polisher or a hairdresser there is, in the same way, a contract involved. What is the difference?
The difference is that, if you get a bad haircut, there is probably—
There is not much left to cut.
I was certainly not making a comment about your hair, convener.
You are probably maligning the hairdressing profession. Come on, now.
I do not intend to do that.
Furthermore, although many people do not enter into written contracts with their solicitors, details of the service that the client will receive, such as how much will be charged and at what rate the charge will be made, will be set out in a letter of engagement. We encourage the use of letters of engagement between solicitors and their clients.
You mentioned the guarantee fund. How often are payments made from that fund? What is the level of those payments?
The structure of the guarantee fund is based on statute. That means that every solicitor in private practice in Scotland pays a sum each year as a guarantee fund contribution. That sum is used to compensate clients who suffer as a result of solicitors' dishonesty. In the past few years, the average has been about £100,000.
Is that per payment or per year?
Per year.
I have a quick question. Is it a basic remit of the Law Society to uphold a positive image of the profession and to uphold public confidence in solicitors? I think that we have missed that point. How important do you consider that to be?
That is how we opened proceedings. That is in section 1 of the Solicitors (Scotland) Act 1980. That is what we have to do.
We have to strike a balance between promoting the interests of the profession and the interests of the public in relation to the profession. You might think that that is a fine balance to strike. However, since the Royal Commission on Legal Services in Scotland reported in 1980, that balance has been examined and re-examined by the council of the Law Society on a number of occasions. It has been part of the legislation going back to 1949.
Every month, we are besieged at the Parliament by a group—I will not name it—that has a considerable number of complaints about solicitors and which, in my view, makes a number of slanderous statements against them. Given the requirement to uphold the image of the profession, have you had any contact with such groups?
You missed the early part of the meeting. We are merely having a briefing to help us determine the remit of our inquiry. That question is properly a matter for the inquiry, when the Law Society will undoubtedly come back to give further evidence.
I have a couple of points on the draft remit. On the time scale, eight weeks is too short. We put in a bid for 12 weeks. On the list of witnesses, I see that the Lord President is not among them and that the committee intends to consult the Westminster Parliament, the National Assembly for Wales, the Dáil Éirann and the Northern Ireland Assembly. I wondered whether the committee intends to achieve that within the period that has been set for the inquiry. I do not see any Whitehall ministries mentioned. That is a run down of what we suggest.
I also thank members for the opportunity to appear before the committee. Regulation of the legal profession is such a big topic that, if it would be of assistance to the committee during its inquiry to come to the Law Society and see what is done in various regulatory parts of the offices, we would be delighted to have you.
I thank you for your attendance and for that offer. We will be back in touch.
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