The first item in the public session of our meeting is our inquiry into the regulation of the legal profession. I ask members to declare any relevant interests.
I am a member of the Faculty of Advocates.
I am a non-practising solicitor who is a member of the Law Society of Scotland.
I am married to a solicitor who is a former member of the council of the Law Society.
I welcome our witnesses, Andrew Duncan, Maureen Henderson and Stuart Usher, from Scotland Against Crooked Lawyers. I refer members to the submission from the witnesses that we have before us. I remind our witnesses that, as they have been advised on two occasions, we are examining the system of complaints against solicitors, advocates and solicitor advocates, not the specifics of individual cases. We want to inquire about the generality of problems that occur when people make complaints. If the witnesses go into the specifics of an individual case, I am not prepared to continue. I will not have individuals mentioned.
Are we on air?
Yes.
I do not see what your question has to do with anything, but I will answer it.
Bear with us. The information will be helpful to us.
We formed the group because we all suffer from the same disease: we were all done by crooked lawyers. When one of our number started demonstrating, people sympathised with him and we grew from that.
When was the group formed?
We were formed in the middle of 2001.
How is the group made up formally?
We prefer to keep that under wraps.
With respect, it would be useful for the committee to know how your group is constituted.
We are an informal group of freely associating people.
You have no chair, vice-chair, secretary and so on.
We have certain posts. I sent details of them to you.
I am asking for the sake of the record.
I am the co-ordinator of Scotland Against Crooked Lawyers, Andrew Duncan is the chief crooked-lawyer hunter and Maureen Henderson is the second chief crooked-lawyer hunter.
Do you have a formal membership?
Yes.
How many members do you have?
We guard that information. We have many members all over Scotland.
With respect, it would be useful for the committee to know the number of members of the group.
Let us put it like this: we have a membership of between 20 and 30.
Is your membership between 20 and 30 as at this moment?
Yes.
Do you believe that your organisation's views are representative of people who have been clients of the Scottish legal profession? On what reasons do you base your opinion?
Our views are decidedly, and without any doubt whatever, representative of the views of the Scottish people.
Why do you think that?
When we walk down the street in our monthly demonstrations, people constantly come to us—we actually get quite annoyed about it—and go on and on about their problems. If you walk into a public house or coffee shop and mutter under your breath, "Blasted lawyers", you will usually get a reaction. People say, "Oh, are you talking about that infidel class?"
My case has been going on for many years. Years ago, I started going around putting notices on car windscreens. Eventually, people would stop me and say, "Are you the lady that had this happen to you? Well, this happened to me." That happened so many times that I realised that I was not the only one in that situation. It was not simply one of those odd occasions on which something had gone wrong. I realised that there were many people out there who were suffering the same problems.
Thank you for that.
Was that from our petition or from our written submissions?
It was from your submissions.
We understand that delays happen. They are not the most desirable thing, but they happen in life. What was the second one?
Lack of communication.
Lack of communication is extremely irritating. Very often, there is a constructive lack of communication.
Do you believe that the lack of communication is deliberate?
Yes, it is deliberate. What was the third thing that you mentioned?
Conflict of interest.
The Law Society is the governing body but purports to represent the interests of victims of crooked lawyers. It is impossible for the Law Society to do both. Actually, our submission should have said that the main problem is criminality. There is criminality within the Law Society in particular and in the legal profession in general.
Will you explain what you mean by criminality within the Law Society?
By criminality in the Law Society, I mean that we have given the society evidence of criminal actions or crime having been committed against us—and against all the people that you see in the gallery—which the Law Society has not acknowledged. Everyone suffers from the same disease. The Law Society makes no reference to the evidence that has been presented to it. If you say, "What about that?" the only answer is, "That is a matter of opinion." The Law Society does not recognise criminality.
Have you taken your complaints to the police about the criminal behaviour that you think is in the Law Society?
Let me respond briefly to your question and then Andy Duncan will come in.
Before we go on about the police, complaints against the Law Society were mentioned. A further point relates to the document that I am holding up, which is a press release by Christine Grahame.
Put that down just now, please.
It shows that the situation here today is unsatisfactory. The convener seems to have different opinions on the way that other people should testify compared to us.
I do not see the point that you are making.
I am making a point about a matter within the education department in your own area. The chief of education has resigned, so that he will not have to testify.
That is quite irrelevant to this meeting.
I do not think that it is.
Bear with me. We are following an interesting line. We have had representation from you stating that you feel that complaints against solicitors have not been properly dealt with. That is a reasonable line of inquiry and I am prepared to go along with it. I make it plain now that I am not prepared to listen to this.
Fair enough.
This is not relevant.
It is criminality.
Bear with me again. We were following a line of discussion based on your statement that you represent 20 or 30 members and that many people come up to you to express failings in the procedures for complaints against solicitors. That is very interesting to the committee. I would like to continue that line of inquiry.
My reference to the police was to find out whether they agreed with you that there was criminality in the Law Society and what they had done about it. Mr Usher answered that point. Perhaps we can move on and hear your ideas on how the process could be changed. How would you like a complaints procedure to be run?
I believe that doctors do not regulate themselves or have moved away from regulating themselves—I am open to correction on that point. Our views on how the complaints procedure should be run are in our petition, but we will outline them again. We must get rid of self-regulation. It is no good having lawyers purporting to look after the interests of victims of crooked lawyers. That will not work. It is regulation by lawyers, for lawyers, with lawyers—it is too incestuous.
Your suggestion is that there should be a lay committee that would deal with complaints, with a legal adviser on the side to advise it on legal matters.
Yes, but it would not be a committee of the Law Society. It must be a separate body in a separate building.
Without using the names of individuals, can you give me examples of your concerns? What sort of things have solicitors been involved in that you complain about? I do not want to discuss individual firms or names of solicitors.
We were asked to make submissions and we made them. A lot of people in the gallery made submissions too. When one makes a submission, one describes what has happened. Naturally, we put down the lawyers who did each one of us.
Is there a common theme to your concerns? Is the same kind of thing going wrong?
Yes, undoubtedly. Mr Duncan and Mrs Henderson will have something to say on the point. It is the same problem—fraud. Fraud is taking place daily—perhaps right now—in several offices in Scotland. Unlike Harold Shipman, lawyers do not go around murdering people—that is too obvious. However, it is a long death for the people who get done. Basically, it is fraud.
In my case, I believe that there was a conspiracy between an MP and a lawyer. As a result, my name on a title counted for nothing; I was treated as though it was mere decoration. Not knowing about law—I was a citizen who had never been involved in law—I did not know where to go for help.
You were defrauded.
That lawyer led me up the garden path.
I will have to stop you there. I understand why you want to say this, but it is not proper to the inquiry. You are going into the details of an individual case. We want to ask about general matters. Is the problem that the lawyer has failed to communicate with the client or has misled the client accidentally or deliberately? What common themes are coming through?
I was leading to the point that I was given advice that turned out to be incorrect. I was fed that incorrect advice for more than a month. This must be happening to other people. People are told that the lawyer will do something, but it is not done.
I take it that you are talking about professional incompetence.
With hindsight, I have doubts about whether it was incompetence.
It was not incompetence, it was deceit.
It is sheer deceit.
The point is that you are saying that some lawyers are being deceitful.
Yes. When one finds that one's lawyer is deceitful, one turns to another law firm. However, we have found that other law firms will not touch the case. We cannot find anyone to help us because no lawyers will do anything.
You made a second point in your submission that if one is discontented with one's current solicitor, it is difficult or impossible to get another solicitor to act on one's behalf. Is that coming through generally from people who speak to you? Is that your point?
Yes.
I have several questions.
Does anyone else want to come in?
We seem to be moving around quite a bit. It would be more helpful if we tried to stick to the thread that we want to pursue.
Yes. I will explain to the witnesses that we are interested in their concerns about the current system.
I am interested in the point about people who feel that they have been given bad advice and cannot get another lawyer to represent them. If that problem occurs, they can go to the Law Society, which is supposed to find them a lawyer to pick up the case.
Every member of SACL has the same problem. It is very difficult, if not impossible, to get a lawyer once the lawyer realises that the Law Society is involved. The Law Society will even write to the lawyer and tell them not to take the case; we cannot get representation. The solicitors will take a case as far as the door of the Court of Session and then drop out on the day of the hearing. That is what every member of SACL has had to put up with for all those years—20 years, in my case.
Are you saying that the Law Society sends out instructions to solicitors not to take up cases against its members?
Yes I am, sir.
That statement would have to be justified in detail. You seem to be saying that the actions of the Law Society cut across the way in which I understood it to operate. It is obliged to find someone to represent—
I could explain my statement perfectly, but I cannot because we have to generalise—we were told that you would not listen to information about individual cases. That was the point that I was making when I said that this committee was not properly convened.
You have made your point, Mr Duncan. You are saying—
My second point is that I have received an ultra vires decision from the Law Society, yet I am unable to get a lawyer in Scotland to take up my case.
We have heard your point, which we will put in writing to the Law Society. You are saying that the Law Society will not provide a solicitor to act for you.
That is correct. Furthermore, the president and officials of the Law Society sit as sheriffs—
I want to follow up your statement that the Law Society will not provide you with a lawyer and that it sends out letters advising, or telling, firms not to act on your behalf.
Yes.
Are you saying that letters are sent to all firms?
To some firms—I cannot say that letters are sent to all firms as I can speak only from my experience.
I would have thought that such letters could be produced and passed to the convener, following which the committee would consider the matter to be very serious and would take it up with the Law Society.
Yes. If the witnesses produce those letters, the committee would certainly take up the matter with the Law Society.
We will ask the group members who have suffered such treatment to produce those letters.
Let me take a step further. Reference was made earlier to the general standing of solicitors in society. Does SACL recognise that the majority of solicitors in Scotland are honest, that they are interested in individuals' affairs and that they are intent on getting results for their clients?
No, I do not go along with that. The problem is that there is a closed-shop policy—I have that in writing from Mr McLeish.
I find your view hard to accept. I accept that, in any profession, there will always be people who are bad eggs, if I may call them that—people who are prepared to turn a blind eye and who do not do things properly. However, are you not going rather far by saying that every solicitor in Scotland is open to question? I give you the point, but I was asking about the majority of solicitors being good and fair.
I do not go along with the view that every solicitor is a bad egg. However, there are 8,000 solicitors in Scotland and last year there were 1,000 complaints about them. That amounts to more than one bad egg in the barrel.
I understand Mr Gallie's question. Obviously, there are many perfectly honest lawyers, but the minority are actively crooked. The problem lies with self-regulation. The majority—the honest solicitors—pass by. They must know what is going on, but they do not want to get involved out of fear. Rather than upset their partners or make waves, they do nothing, as long as they can keep their noses clean. We do not say that the majority of lawyers are actively crooked, but a substantial minority are, and other solicitors are frightened of them. It is like Chicago in the 1920s and 1930s—
I do not want to go too far down that road, but, to an extent, I accept what you say. Do you agree that the faculty system that exists in Scotland tends to create a club atmosphere among solicitors, which makes some solicitors reluctant to pursue cases against individuals whom they consider to be friends?
Yes, I go along with that statement. To a degree, such an atmosphere is understandable. If a chap is a lawyer, he has something in common with other lawyers. For example, they go to the same clubs and golf clubs—that is one reason why I would never go near Muirfield. However, the problem is bigger than that. One cannot get a lawyer to go for another lawyer. I do not know whether the Law Society has a figure on successful prosecutions of a lawyer by another lawyer. We cannot get that information, although the committee might be able to get it.
Are you saying that there are no sheriff court cases or Court of Session cases in which the defender or one of the defenders is a firm of lawyers?
Do you mean cases in which another lawyer prosecutes the defender?
A lawyer must prosecute the defender on behalf of a client.
The defender can be prosecuted by a party litigant.
That is true. Are you saying that you know of no cases in which one lawyer prosecuted another?
I know of none at all. I ask those in the public gallery whether they know of any such cases. They can nod or shake their heads.
I remind you that we are not in a theatre. Please address the committee.
Certain people in the public gallery have fought for decades to get to court. I fought for many years to get to court, but no lawyer would touch my case.
I accept that you do not know of any cases in which solicitors are the defenders. It is for the committee to test that claim; our research might show that such cases are brought.
What is the witnesses' attitude to the Law Society's troubleshooter scheme, which was designed to provide people with solicitors who would go to court on their behalf against another solicitor? You do not seem to have faith in that scheme.
I have no faith whatsoever in that scheme.
Two troubleshooters have been appointed to my case. One of them is the eminent solicitor Andrew Cubie—sorry, I should not mention the name. He knows that the Law Society's case against me was ultra vires, but the case did not come to court.
What kind of scheme should replace the troubleshooter scheme?
There must be an independent advocate for the public.
The troubleshooter scheme does not work. It is manipulated and it is not carried out in good faith. We asked the Law Society to come up with figures for the number of successes that the troubleshooter scheme has had for victims of crooked lawyers. If the committee can get those figures, I will say, "Well done," but we have not been able to get them. I would place a hefty bet that the number of successes is minimal. Cases are usually buried in paper so the scheme does not work. Many of the people in the public gallery have tried the troubleshooter scheme and got nowhere.
Let me put the troubleshooter scheme into perspective. The Law Society has a list of troubleshooters, but the one who was appointed to my case was not from the list; he had started in business that year. A legal aid certificate had to be issued by the Law Society before he could take on the case. That is not right, but that is how the scheme works.
It would be useful for the committee to investigate further the troubleshooter scheme.
I want a clearer picture of the system that the witnesses would like. I think that they want an independent system, but I am not clear about how that would operate. Should the system deal only with complaints against lawyers? Should the Law Society continue to have a role in professional development for solicitors? Exactly what do the witnesses want?
There is no need for so many people to be involved. An independent body could be set up that had no connection to the Law Society and the Faculty of Advocates and so on.
And that body should deal purely with complaints.
Yes.
So the Law Society would continue to have a role in professional development and so on.
Yes.
Would that independent body have a role in setting standards?
Yes, it would definitely set standards.
How would you envisage it doing that?
For a start, the law—by which I mean the European convention on human rights—would be adhered to.
Would you repeat the question please?
Which one?
The last one.
How would you envisage that independent body setting standards?
It would probably have a committee to consider standards. The Law Society has rules of biblical proportions—it makes and interprets those rules. I read one the other day that had 630 words. The independent body would simplify the rules. They should not be so amorphous and must be slimmed down and made more commonsensical. The independent body would try to simplify and improve the system. All it needs to focus on are three words: fraud, deceit and theft. The independent body would operate on that principle. It would have to make the rules far easier in their execution. At the moment the rules are out of control and are being taken advantage of with the wrong aims in mind.
Could the current role of the Scottish legal services ombudsman be expanded to include the role that you have just outlined?
No, not at all. In theory he is independent but in practice he mixes in the same clubs. Of course, you can never get people not to contact each other.
Can we stick to the substance of the issue, which is the independent role that you would like to be fulfilled? Could that role be undertaken by the ombudsman?
No, not as things stand. Two years ago, the ombudsman had one clerk and worked part-time. A multibillion-dollar industry had a part-time ombudsman with one clerk. Even the present ombudswoman works part-time. There are two clerks now and I believe that there will be another one. The ombudsman could never take on that role. There would have to be an ombudsman's office with no lawyers in it. It would have people of probity and a staff of at least 30.
Why 30?
We are talking about an inquiry into the legal profession. The only way that the committee will get its answers is to go into a number of individual cases. At the moment, the committee is not prepared to do that.
You began by saying that the position of ombudsman in its present form could not have a role, but you appeared to go on to say that it could have a role if it had more staff and were given greater powers.
Yes, that would be the case if it were given greater powers, and if it were independent and seen to be independent. I would call it not the ombudsman, but the ombudsman's office or, as in England, the Office for the Supervision of Solicitors.
I do not think that we need to get caught up in titles at the moment.
I am sorry—see that as what?
Would you see that as a step forward?
No, not really. As I said, the role could be expanded—although I did not quite hear you. Perhaps my hearing is not too good.
The point that Michael Matheson was making—and I thought that you agreed with it—was that, if the ombudsman's role developed beyond its current remit, and if the ombudsman received greater resources, that solution would achieve the required independence.
I apologise—I did not hear the original question well. That suggestion would indeed be a step forward.
I will ask about the way in which your preferred system might work; but I want to be clear about something first. You seem to be concentrating on lawyers who act in way that is definitely crooked and dishonest. I would have thought that there would be more problems with lawyers who are incompetent—who give bad advice, do not answer letters or make a muddle of things. Would your system cover lawyers who are incompetent as well as lawyers who are dishonest?
We differentiate. We do not mind incompetence. We are pretty incompetent ourselves. Myself, I am very incompetent; I make lots of mistakes. We all make mistakes.
That brings me on to my next question. There are two aspects: punishment of the lawyers who have done wrong and some sort of redress for the clients who have suffered. What are your views on punishment and redress?
The Law Society is very fond of using terms such as misconduct and inadequate professional service, but that does not address the problem. The problem is deceit or incompetence. I am sorry—I have lost the question.
I wanted to know your views on punishment for those who are found to have been doing wrong and on redress for defrauded members of the public.
If deceit is involved—calculated fraud or theft—the punishment should fit the crime. The lawyer should make redress. If an old lady dies and the lawyer embezzles her estate or if, in a more cunning manner, he siphons off money and that is discovered, he should pay back that money if he can and the punishment should be serious. The redress would be payable by the lawyer to his victim. That would stop 98 per cent of the crime in its tracks.
You thought that a body of at least 30 officials should run the complaints organisation. How would that be paid for? It has been suggested that a levy could be made on all lawyers, or that a system of fines could be used, in which the lawyers who were complained about the most would pay more. Another suggestion was that the person who complained should contribute in some way. What is your view on the funding?
There is merit in the idea of a sliding scale for lawyers who are complained against constantly, so that it becomes more and more expensive for them. Although I do not like to say so, the type of organisation that we want would probably need some central Government funding. I imagine that the legal profession would be able to fund it, but if it could not, central Government would have to provide the funding.
Your paper refers to the Law Society's measures for continuing professional education and development, which you consider to be inadequate. What are your ideas on how to provide proper qualification and continuing development of lawyers? Who would be responsible for that?
That type of thing could stay with the rump of what still existed of the Law Society. People go to university, pass an exam and become lawyers, in the same way that people become doctors. A lot of mumbo-jumbo is tied up with this matter. As was evident in the submissions to the Justice 1 Committee, lawyers are always carrying out procedural improvements. That does not address the problem of fraud and crooked lawyers. Lawyers' procedures must be the best in the world—in theory, anyway. They can fiddle with their silly games if they like—that is fine. They would have to act in good faith and they would have to be supervised. Without a shadow of a doubt, there are individuals in the Law Society who are not acting, and who have not acted, in good faith for many years.
Do you support the idea of laws about continuing training, so that once students have passed out of university and have qualified, they would lose their certificate if they did not attend three or four courses every five years?
There is continuing professional development for solicitors every year. If they do not partake in those courses or get through them, they do not have a practising certificate. That is a point of information. Although we could have a debate about whether that development is satisfactory, the procedures for it exist.
May I answer the question?
Of course. I was simply clarifying that there is professional development every year.
We do not think that the business of taking courses every year and development is necessary. The way the legal profession is, someone who is good at practising law will be in demand and will do well. The business of the Law Society improving methods and providing guidelines and courses is a red herring that conceals the reality of what is going on. We are not the slightest bit interested in that.
I want to clarify for Donald Gorrie that there is a two-year training diploma. It is not a question of graduates who have come straight from university being let loose—that should not be the case. Before someone comes through the system, they must complete a diploma course and a two-year traineeship. I make that factual comment as someone who has followed the process.
I am sorry to go over old ground, but I am not clear about something. As I have listened, it has become clear that your complaint is not about professional incompetence, delay or failure; it is about—in your words—crookedness, fraud, theft and embezzlement. To be fair, the title of your organisation makes that very clear. Those are criminal offences and not a matter of professional incompetence. Other people can deal with that. During most years, the police will prosecute some lawyer, who will get umpteen years in jail for criminal offences. As Phil Gallie said, that is in the nature of any profession.
It is not the police. It is the procurator fiscal. The police will pass a complaint to the procurator fiscal and it is up to the procurator fiscal to progress matters.
I want to be clear. We are not going to leave with any dubiety about what you are saying. Are you saying that the police are passing cases of criminal behaviour to the Crown Office and to the Procurator Fiscal Service with a recommendation that people be charged, and that that is not happening?
Yes.
I would like to enlarge on that.
I will let you enlarge on that. I just want to be quite clear about what you are saying. The police are telling you, and telling the procurator fiscal, that those men should be charged with theft and embezzlement and the procurator fiscal is refusing to do that. Is that your allegation?
That is Andrew Duncan's allegation. Our common experience is that someone goes to the police, who consider the issue. The police might be sympathetic and say, "By God, this is skulduggery on a huge scale. We'll come back to you." Two weeks later, they come back and say, "Sorry, chum. We can't do anything about it." When you ask them why, they say, "You have to have a lawyer."
Can I just pause you there?
That is it. You wanted the answer.
My understanding is that that would be the police saying that it was not a criminal matter. We are now changing tack.
Because there is corruption in the office.
In the Crown Office?
Yes.
Does that corruption go to the top or is it at local level in the Crown Office?
I would say that it goes to the top.
Your position is therefore that lawyers are not being prosecuted for crimes in Scotland because the Lord Advocate is corrupt.
Basically, yes. It looks like that.
Lord Denning compared the law to a broken reed and said that the police do not have the resources to follow up all cases, so some cases go by the way.
I want to press you on that, because you are taking a different line and talking about where cases are followed up. I am now talking about cases in which the police have said that a case should be prosecuted and the prosecution system has failed to prosecute. You are suggesting that that is the result of corruption in the prosecution system.
It looks like that. We do not have proof of that but the practical effect is that you report a case to the police and the police do nothing.
The police may well refuse to do anything, for a variety of reasons. They might think, on occasion, that there is nothing in the claim. That is a matter for them.
We cannot be clear on that, because we neither see nor hear what the police do after we leave.
Mr Jackson has asked a specific question and we will give him a specific answer.
A police officer telling someone that a case is a civil matter is one thing. The policeman might be making a judgment that we do not like, but it is his judgment that there is no crime.
Are you saying that the police cannot follow up civil matters, only criminal matters?
Absolutely.
Absolutely.
I want everyone in the chamber to hear that. The police will follow up only criminal matters. Is that right?
Of course.
Is theft by a crooked lawyer in his law firm a criminal matter or a civil matter?
I am not here to answer questions, but that is undoubtedly a criminal matter.
Right well—
Let me finish. If a lawyer is stealing or embezzling money, he is committing a serious crime; he should be prosecuted and go to jail. As Phil Gallie pointed out, that happens from time to time. That is a criminal matter.
The police might say that something is a civil matter when it is a criminal matter. They might say that it is a matter of opinion. The end result is that nothing happens. That is the reality.
We are clear that there are two issues, which Gordon Jackson expressed and delineated. We will follow up the serious allegation that your colleague made, which I will summarise. The police make recommendations to the procurator fiscal that a crime has been committed. The crime is not prosecuted, because of the attitudes that prevail in the Crown Office. The trouble is that solicitors are not being pursued. We would certainly follow up that allegation and would want to ask the Crown Office about it.
There are moves and pressures from the legal profession about reviewing police complaints procedures. There is a feeling that those procedures should be independent. If the police complaints procedures were to be changed in that way, would it be reasonable to turn the focus back on to the Law Society with respect to the self-regulation of solicitors?
I did not catch your entire question.
I am making a comparison between solicitors and the current moves to have a separate police complaints procedure.
Yes, we would find that very helpful. It would be a step in the right direction.
Should the committee keep that in mind for the future?
Yes, very much so.
I wish to return to the main issue, which is fraud. I was rather disappointed to hear your response to Mr Gorrie's question about solicitors' incompetence and the laid-back attitudes that can cost clients. I seem to get such complaints from my constituents. Are you not at all concerned about that? Solicitors frequently cost clients dear.
Obviously we are concerned, but incompetence is not a cardinal sin.
It is a sin that adversely affects lawyers' clients.
I agree—incompetence is not desirable. If it has adversely affected a client, some form of recompense should be forthcoming. However, the essence of the matter is deceit and fraud.
On your charge of fraud, would you say that police and procurator fiscal action is a result of the complications arising from the issues that the police and the procurators are asked to consider and the fact that there are limits on their time?
I agree. I think I touched on this with Mr Gorrie. Those complications arise because there are so many rules and regulations and so many different bodies, including the Scottish Solicitors Disciplinary Tribunal, the Law Society, the Faculty of Advocates and the Crown Office. The whole thing is too complicated and it must be simplified.
We have already had evidence that procedures could be simplified.
There are too many procedures.
Thank you for your evidence. It was very helpful.
We have heard a lot of talking today, but the fact is that we need a body of self-regulatory people—a simple body to give people representation and justice. That would eliminate the need for all the talk that has gone on here today.
Thank you. I understand your point.
I would like to bring up one last thing. I wanted to bring it up at the beginning and forgot about it.
I am sorry, but you have had an hour. I am not prepared—
Why not?
Because we have given you an hour and someone else is waiting to give an hour's evidence. We are being as even-handed as possible. Thank you.
I will put the question over—
No, you will not.
Well, I think it is—
I suspend the meeting.
Meeting suspended.
On resuming—
I reconvene the meeting and welcome Professor Alan Paterson. I refer members to the paper from Professor Paterson—it is quite erudite and I think some of us struggled with it.
I should start by declaring my status. I am a member of the council of the Law Society of Scotland and I sit on Law Society committees that deal with complaints. I say that because I am not here representing the council or the Law Society.
I notice that one of your suggestions is "Be relatively speedy". Could you develop that a little?
The speed of a complaints process is controlled by a number of events. It can be helpful if there is a documented procedure that sets realistic time limits. The Solicitors (Scotland) Act 1980 does not provide any such helpful mechanism. It is fair to say that the Law Society is not helped by the structure of that act in terms of timetables.
Could you give an example of a more streamlined complaints procedure that is within the committee's jurisdiction?
The Scottish Conveyancing and Executry Services Board has strict timetables, but it has not had many complaints because it does not have many registered practitioners, so it has not been possible to show how workable those timetables are. In theory, however, it seems to be a good model.
It is a good model for the committee to consider.
I am confused about definitions of terms such as "professional misconduct", "unsatisfactory conduct" and "inadequate professional services". You said that the definitions of those terms were inadequate. Could you give me some idea of what they mean and, perhaps, an example of each?
If you find those definitions confusing, I wonder what the average member of the public thinks of them. I tried to make that point in my evidence.
Surely that would become incredibly detailed. There would not be just three categories of culpability; there might be a dozen.
Not necessarily. The Sharp test continues on from what competent, reputable solicitors describe as "serious and reprehensible" and goes on to say that all the circumstances of a case and culpability in those circumstances must be examined. "Serious and reprehensible" appears to be a slightly curious phrase to use unless one knows the facts of the case of Sharp v the Council of the Law Society of Scotland, from which the test stems.
What about remedies for clients and consequences for the solicitor? Are you considering the penalties and the way in which clients might be compensated?
Clients are not compensated following findings of unsatisfactory conduct; they are compensated following findings of inadequate professional services, or IPS. The test for IPS is whether professional services are not in any respect of the quality that could reasonably be expected of a competent solicitor.
We have been concentrating on solicitors. Are you able to comment on how any of what has been said relates to advocates?
My understanding is that IPS is not part of the discipline procedure for advocates, but I do not really understand why. IPS was a statutory creation, but it was not applied to advocates. I understand that the General Council of the Bar in England and Wales applies IPS voluntarily. That has not been done in every case, but the Bar Council is prepared to apply it in some cases. I see no reason why, in principle, IPS should not apply to advocates.
Is not it also to do with the fact that, as I understand it, there are no contractual relationships between the advocate and the solicitor and the advocate and the client?
That is true. However, IPS can be applied where there is no contractual relationship, but it is difficult to do so. It would have to be done statutorily.
Paragraph 8 of your evidence addresses the complaints procedure. You list 12 goals that should be achieved in a complaints procedure. How does our present system for handling complaints against solicitors stand up to those goals?
I have tried to answer that question in paragraph 10. As I say in paragraph 10(a),
Given the way in which the system operates, would some of the concerns that have been expressed—most of which appear, on the surface, to be based on a perception of the way in which the system operates—be better addressed by having a complaints system that is independent of the Law Society?
No, we do not need to move to a completely independent system. It would be bad for the professional bodies if they were stripped of their disciplinary roles, because it is their job to look after the public interest in relation to the profession as well as to look after the interests of the profession. I do not believe that the professional bodies should become simply trade unions.
How would a difference of opinion between the Law Society and the ombudsman be resolved in that sort of structure?
Under the current system, our ombudsman can make recommendations, but if the Law Society or the faculty does not want to accept those recommendations, the only thing that the ombudsman can do is publish her recommendations. That is how matters stand. However, legal ombudsmen elsewhere have the power to impose their decisions on the professional bodies. They cannot impose a finding of professional misconduct on the individual solicitor or advocate concerned.
You mentioned the committee on which lay people sit. That committee makes a recommendation to the council of the Law Society, which has a quasi-adversarial system. What is your view on the solution that we should remove the council from the system? I know that statute would be required for that, but disciplinary matters could be delegated only to the committee and not to the council. The three stages are the committee, the council and the discipline tribunal. The suggestion is that we remove the council from that system.
As you know, we cannot remove the council because the Law Society lacks delegated powers, although it is keen to acquire them.
I assumed that we could solve that.
If we can solve that, one solution to the adversarial nature of the process would be to remove the council of the Law Society. That was done in Ontario, which had a similar, although not identical, model. The convocation, which is the equivalent there of the council, was removed from the process and the job was given to an appeals committee. That would probably be the answer. However, the professional body would resist such a move, which I can understand. The professional body feels strongly that it should rule on matters of conduct. It acknowledges the argument about matters of service but, on conduct, the body feels that it should have a say. In Ontario, it was hard to remove the convocation from the process; however, that is the solution that I suggest.
For the avoidance of doubt, I did not suggest that the Law Society should be removed from the process. I suggested that the present structure be changed. I think that you agree with that.
Yes. In Ontario, the large council—or convocation—was removed from the process and the job was given to an appeal committee that is part of the Law Society of Upper Canada.
I talk to many lawyers privately and it is not my impression that such a move would be resisted strongly, although that is anecdotal.
Opinion on the matter has not been tested. I think that the best solution is to give the job to a specialist disciplinary committee in the Law Society or the Faculty of Advocates. There should be a lay person on the committee. I would choose that route rather than leaving the matter with the council. However, for the time being, the council must be involved, which means that we must find another solution. That might involve either having no representation in the council, which is difficult, or some kind of amicus curiae, which is a representative for the complainer.
How should people be appointed to the next stage, which is the discipline tribunal? I have represented people before that tribunal and my impression is that it is very lawyer-oriented. The public perception might be that even the discipline tribunal is a matter of lawyers looking after lawyers. How can we get around that perception?
It is uncomfortable that the Law Society nominates members of the tribunal and I have no difficulty about removal of that system. However, that is not the crucial point about the discipline tribunal. The crucial point is that the tribunal's guidance is communicated to the council and the committees of the Law Society and that those bodies take the guidance into account.
Donald Gorrie has a question on developing the business of the legal services ombudsman.
People who think that we need to change the system suggest three options. The first is to have a new body, the second is to keep the Law Society and create a new body above it to monitor what it does and the third is to have a greatly enhanced ombudsman operation to do the monitoring. What are your views on those options?
I am in favour of the option that involves co-regulation with an ombudsman who has greater powers. I am not in favour of the totally independent body, because it is a bad development for a professional body to move purely into a trade union role. That is my view and it is also the view of the New South Wales legal services commissioner. I respect his judgment on the matter. It is very important that a professional body retains its commitment to the public interest and the pursuit of that. I know that it looks like a conflict of interests, but it is important for the professional body to pursue the public interest as well as the profession's interest.
Yes.
The ombudsman needs to have the power to monitor. Our ombudsman does not have the power to monitor how the complaints procedure is working. All she can do is wait until somebody manages to struggle to the end of the line to complain to her, at which point she can deal with the complaint. The complaints that reach her are not a random cross-sample of complaints so she does not know—nobody does—how well the complaints procedure works, because there is not enough monitoring of it. I am in favour of giving the ombudsman power—as is the case in New South Wales and to a lesser extent in Victoria in Australia—to audit files on a random basis and to ask for particular files if she wants them. In New South Wales the ombudsman can attach directions to a file saying what he would like to be done in relation to a particular case, or whether he would like a specialist report. He does not use that power very often, but it is an important power to have.
You have helpfully described the situation in New South Wales. Would you draw to our attention any ombudsperson in the UK or elsewhere who would be a good model to follow? I have grave suspicions about ombudspeople. I am sure that they are personally worthy but, in my experience, their institution is of dubious value. However, there must be some that do better than others. Could you point us in the right direction?
I am not sure. In the English model, the ombudsman has greater powers. For example, there is dubiety about whether our ombudsman can even consider the merits of a complaint. It is argued that all she can consider is how well that complaint was handled. I am not entirely in agreement with that system, but we ought to clear up that ambiguity. It should be clear that the ombudsman can consider the merits of a case, not just how well it was handled.
I like the idea of a gateway and I am attracted to the idea of increased powers for the ombudsman. I also see the point of having a protocol that pretty much defines what stays and what goes. My reservations about a gateway are not all about cost, but there are a lot of complaints. At the moment, they are all investigated by the Law Society, which has a cast of thousands who are doing nothing else. If every complaint goes to be considered by the ombudsman first, and then 95 per cent—to pull a figure out of the air—go on to the Law Society, the Law Society will end up doing as much as ever, but there will be a huge increase in the costs and staffing of the ombudsman's office. If the gateway is for every single case, a huge duplication might result. That worries me.
It could. That is a valid point.
That sounds like a criminal sift. Would he not achieve a similar result by sending everything to the Law Society to decide whether the complaint is legitimate? In that system, every case that the Law Society decided was not a legitimate complaint would have to go back to the ombudsman for confirmation. That would prevent a certain amount of duplication.
That is more or less the current situation. As soon as a case is rejected on the ground that it is not a valid complaint, the Law Society informs the complainer that they can take it to the ombudsman.
I am suggesting that it should go automatically to the ombudsman, who could then confirm whether it was not a legitimate complaint or send it back to the Law Society if he found that it was legitimate.
There will always be some duplication. It need not be huge and if the protocol is clear, it will be relatively minimal. However, what we would gain would be the perception—and reality—of an independent gateway. People would not think that they were being fobbed off.
If we were considering other systems of pursuing complaints against solicitors and advocates, which other jurisdictions and models should we examine in terms of cost and who funds the system?
Ultimately—this is not terribly surprising—the people who pay for complaints are clients. It does not matter which system is in place, at the end of the day it is the clients who pay. The Law Society's complaints system in Scotland is paid for by the solicitors as part of their practising certificate subs, but they get that back, if they are businessmen, from their fees.
There will be a few dinner engagements you will not be invited to.
If the Law Society sees some argument for change, why does it not currently recognise to the full the findings of the ombudsman? There have been several cases where points raised by the ombudsman have ended up as a picking list with the council rather than being referred to the full complaints procedure. That creates dissatisfaction on the part of the most important people—the clients. Do you have any comments on that?
I am not representing the Law Society, so I cannot say why the Law Society would do what you suggest. Having studied the systems in New South Wales, Victoria, Scotland and England, it is clear to me that although structures and procedures are very important, it is vital that the people involved respect one another. In the jurisdictions where there is no respect between the professional body and the ombudsman, relationships can be very difficult. In such cases people do not listen to the recommendations; they talk not to one another but past one another. There are also examples of jurisdictions such as New South Wales, where the relationship between the ombudsman and the professional body is one of mutual respect, even though he has very wide powers.
If we do not give the ombudsman or another independent body the appropriate powers, we will end up with the scepticism that seems to exist in the public's general view that solicitors and the Law Society are incestuous. Does that worry you?
Yes, of course. It is important that we take some action to deal with the concerns that have been raised with the committee. That should not be restricted to solicitors or advocates. As I said in my submission, there are other providers of legal services. Although I do not argue that everyone should be subject to the same level of regulation, some providers of legal services to do with claims companies are almost unregulated. In those cases I do not see any protection for the public. I am not making any allegations of abuse; I am saying that the protection is not there. I would like a more level playing field in relation to protections, without necessarily imposing the same level of regulation on all providers of legal services.
Just finally—
I am sorry, Phil, but it is time to move on. Thank you, Professor Paterson. I hope that you are proposing that the committee visit New South Wales. It is time we went somewhere other than a prison.
Indeed I am, convener. What about a videoconference?
Thank you.
Your submission makes clear that you are an unashamed advocate of open self-regulation. Can you expand on what you mean by that phrase?
I mean a more transparent system of self-regulation. Something that all of us have learned through the process of the committee inquiry is that there is a lot more to self-regulation in the professions in Scotland than the average client would appreciate. There is lay involvement and there are rigorous processes.
Do you think that the general public know what to expect from a lawyer and what a lawyer should and should not do when delivering a service to them? Do they know what they should or should not complain about?
Not necessarily. In practice, I have found that many potential clients are unhappy about crossing a solicitor's threshold because they are fearful of costs and of not understanding what would be required to deal with their case. Many are channelled through citizens advice bureaux and other advice centres, where they can discuss their problem more openly and get some assistance on the legal issues in their case and what might be expected from a solicitor. They are often then referred to a solicitor who specialises in the area concerned.
So when you talk about the role of education in open self-regulation, you mean both education of solicitors in how to deal with clients' expectations and education of clients, which is possibly more difficult.
Education of clients is more difficult, but it can be done. To that end, I favour the creation of a forum that would allow many of the people who have given evidence to the committee's inquiry to talk to one another. I know that there are liaison groups between the Law Society and the Scottish Consumer Council and that those bodies get involved in specific things that each other does. However, I see a place for a body—not an appeals body—that could develop a sense of collegiality among the different organisations that have responsibilities for consumers and the professions. We need to try to get that interface, so that helpful information can be given to clients or potential clients.
If you cannot achieve openness and get something done about perception, is self-regulation still an option? Would it not be better to consider other suggestions, such as strengthening the role of the ombudsman or having an independent body regulating the discipline of the profession?
I would not be in favour of an independent body regulating discipline, for two reasons. I do not know whether a body with powers and funding delegated from the Law Society but with statutory foundation would be perceived as any more independent than the process that we have at the moment. The experience in England is that there is no more confidence in the Office for the Supervision of Solicitors than there was in the process that the Law Society handled. The ombudsman, on the other hand, helps to create a degree of public confidence. The ombudsman in England and Wales has indicated that a strong part of her role is improving processes, perception and understanding and preventing complaints rather than dealing with them reactively.
We have heard evidence from people who have difficulties with having faith in a system that regulates itself. My experience, when I became a lawyer, was that when I had a complaint, I was astonished to find out that the Law Society was handling it. From then on, I was destabilised and disgruntled, even by the final position.
This might be idealistic—that is the role of academics—but in every situation, where possible, complaints should be dealt with at firm level. We know that there are recommendations that firms have complaints partners. There are mediation processes, which the Law Society facilitates. I am sure that they get some complaints out of the way and resolve them, I hope, to the client's satisfaction.
That is something along the lines of the Scottish Consumer Council's proposal. It talked about resolving issues early and in a more personal manner, before they fester. Does no such procedure operate at present?
I am sure that it happens ad hoc. Members of the Law Society's secretariat are trained as mediators. If someone involves the local member of the council of the Law Society, problems can be dealt with locally, but that tends to happen ad hoc. That might occur more in a place such as Aberdeen, where members of the profession are fairly well known to one another, than in a larger city.
Does any jurisdiction have a complaints procedure that uses the strategy that you describe for dealing with complaints and which involves an ombudsman and a first referral at grass-roots level with a mediator? Does any such model exist?
I cannot think of a directly comparable model, but I have examined only the systems in England and Wales. If the Law Society is the first line of complaint, a more user-friendly avenue into it should be created, coupled to the suggestion that I just made.
I am hugely attracted to the idea of local mediation sorting things out early on. In this committee, we are more concerned about the end process but I am interested in your emphasis on the beginning.
It is inevitable that there will be baggage. This might be idealistic, but if you are doing a professional job of mediation rather than chatting with your mates in the court atrium about whether someone else is good or bad, it should be possible for someone with the right training and qualities—it is important to note that not everyone could be a mediator—to overcome their prejudices about a person. If anything, in an effort to be wholly fair, they will probably try extra hard to overcome a perception that they might be biased. At the end of the day, however, the process of mediation and negotiation, while vital, is not determinative. There would always be an option to go back to the arm's-length process.
You might well be right. My reservations might tell people more about me than about anything else. I am not sure whether I could be an impartial mediator. If you had a case against your pal's client, that would be fine, but if you had to mediate in a personal dispute between two people whom you knew well, you would inevitably have to deal with baggage, even if it were over-compensating baggage.
I would hope that someone who felt that they could not overcome their genuine conflict of interest would distance themselves and recommend that someone else act as the mediator.
We will move on from that interesting aspect, as we do not need to go into such detail at the moment.
Local conflict resolution is an important subject. All political parties, for example, and cabinets and coalitions in particular, are based largely on conflict resolution. However, I will set aside that issue for now.
Inherent in the concept of being a profession, rather than simply being a provider of a service to the consumer for money, is that a professional body should want to self-regulate. In my experience, most professions self-regulate. Lawyers are perhaps different from accountants—although it might be becoming increasingly difficult to distinguish between them—in that lawyers operate within the justice system and do not have complete control of that system. They control some elements of the system, but must work with others in other parts of the system.
Do you envisage the legal ombudsman having greater powers than at present and a more directive or hands-on approach to controlling how complaints are dealt with? At the moment, the ombudsman's powers are relatively limited. What further powers does she need?
I am in favour of the ombudsman having the power to make random routine checks of complaint handling. The ombudsman should participate in any forum that discusses how professional conduct is regulated and how professional standards are communicated to the consumer.
I welcome Bill Aitken to the committee. He has a question.
I read your submission with great interest. It has much to commend it. However, given the fact that the problem is client perception, how would you get across to aggrieved clients that self-regulation involves a necessary degree of detachment?
That is difficult. One way of doing that would be to have a local complaints mechanism, which might involve a layperson or a local mediation mechanism. That would prevent clients from feeling that they are being confronted by a bank of lawyers. There would be open discussion of the problem and how it might be resolved.
That returns us to the point that Gordon Jackson made. If we follow the line that you suggest, in close-knit legal communities where lawyers sometimes work in close co-operation—in Aberdeen, for example—lawyers might be investigating one another. That of course can be a negative characteristic of the investigation. We are not convincing the public that there is sufficient detachment. Although I am not convinced that the problem is as significant as some suggest, the public perception must be corrected. The investigation process must be one step removed.
I understand your point. It is difficult to overcome that perception. My view is that one should attempt to overcome it by providing information and education. That does not necessarily work, even with members of the profession who do not fully understand the complaints process. I realise how difficult that task is. My suggestion that when complaints come to the Law Society, they should be examined in the first instance by a non-legal person is a step towards addressing the issue.
I want to ask about the various models that could be used for regulation. In your submission, you refer to the system in England and Wales—the Legal Services Commission. I am not familiar with the way in which the LSC deals with complaints. Would you shed some light on that please?
A new statutory regime has been set up down south. As I understand it, the LSC is the umbrella organisation. It considers not so much the self-regulation side as the provision of legal services by people other than lawyers. It is the umbrella above the Community Legal Service, advice centres and various other providers of legal or quasi-legal advice. As long as the operation of the legal profession is satisfactory, the LSC will leave it to regulate itself. There is a statutory requirement on the profession to have rules for admission to the profession and rights of audience in the courts.
Just for clarity, is the complaints commissioner a part of the Legal Services Commission, or are they independent of it?
As I understand it, the complaints commissioner is independent. They sit in parallel. The complaints commissioner seems to be a troubleshooter, who is sent in when difficulties arise with the complaints process. The complaints commissioner has the power to direct the professions on the way in which they regulate conduct.
Is the Legal Services Commission able to direct the regulation of the profession if it chooses to do so?
I understand that the commission sets overall quality standards for the delivery of all types of legal and quasi-legal services. The profession will be expected to have regard to those quality standards when it sets its own standards.
Thank you.
When is the meeting?
The next meeting will be held in committee room 3 at 1.45 pm on Tuesday, 5 February. I would like to hear members' ideas for the forward work programme at that meeting.
What time is our next meeting?
Our next meeting will start at 1.45 pm and will be held in committee room 3.
At some stage, I would like to have a discussion on where we are going with our inquiry, although I do not necessarily want that discussion to be on the record. Some issues have come up that I would like to discuss. We have a lot of answers, but they open up other lines of inquiry—I have in mind at least two—that we should follow up.
I assure you that in no way will we hurry our inquiry. The issue that you raise is one that we can discuss when we discuss our forward work programme. Our inquiry has been exploratory and while we have tried to contain it, it has opened up in many directions.
Other countries use various models. We have heard that there are two Australian systems and that there is a Canadian system. We should explore those systems further to gather background information.
Mary Seneviratne, our adviser, will produce a paper for the committee on comparative models in other jurisdictions. That paper will be useful. She has also had an input into some of the questions that we have been asking. I am well aware that we must get the inquiry right—we are not in a race against time.
We have a lot to do.
We will take our time and try to come up with solid recommendations.
For eleventh-hour people like me, do all amendments have to be lodged by Friday, or does the deadline apply only to amendments to sections that are to be discussed on the first day?
I understand that all amendments for stage 2 must be lodged by Friday, despite the fact that there will be at least two—or possibly three—days for consideration of the bill at stage 2.
Other committees that have dealt with bills at stage 2 have done so on a tranche-by-tranche basis, if that is the right expression.
I am sorry—the clerk has corrected me as I may have misled members. We will come back to members on that point before Friday, as there may be a timetable for stage 2.
I am afraid I might not lodge all my amendments in time, knowing my incompetence.
That is just a front that you put on for us, Donald.
Meeting closed at 16:27.