I took advantage of a holiday in French Canada to make contact with the Barreau de Quebec, which is the equivalent of the Law Society in Scotland. Despite short notice, I was made very welcome to an impromptu meeting with three members of the secretariat of the Barreau. After some preliminary pleasantries in the French language, my hosts were kind enough to conduct the meeting in English, which was just as well.

The conversation ranged from legal small talk, touching on the issues of independence/separation, but focused mainly upon the concept of alternative business structures. My colleagues at the meeting were Me Dyane Perrault, director, Me Fanie Pelletier, equity advisor and Mr Pierre Boucher, an economist seconded to the Bureau, whose comments I was nevertheless able to follow and understand, I hope. As far as separation/independence was concerned, no political lines were drawn and comment remained entirely objective. It was noted that past statistics in both Québec and Scotland indicate that a substantial majority of the population is opposed to separation/independence, but that in both cases the majority parties in the elected assemblies are in favour of separation/independence.

We touched briefly on issues of professional interest including gender balance in the profession, the transferability of practitioners from one jurisdiction to another and, in particular, the juxtaposition of the civilian and common law schools of jurisprudence. However, the main topic of discussion was alternative business structures or ABS as it was clearly very familiar to my hosts. Again, no political lines were drawn and the discussion remained mainly. I formed the impression that law practices in Québec require to remain fully within the ownership of regulated professional individuals of whom a majority have to be lawyers but, even within that regime, there was a restriction upon the sharing of legal fees with non-lawyers. I might just have detected a degree of polite incredulity when I explained that the recent changes in Scotland authorised the ownership of legal practices by a majority of regulated professionals, none of whom have to be lawyers, (as long as one solicitor is employed by the practice) together with a minority of other persons or entities including, potentially, banks, institutional investors and even supermarkets. At the same time, however, I gathered that there was very little take up of joint ownership with non-lawyers in Québec and I was able to confirm that my own analysis had been a worst case scenario and would perhaps never happen.

I was given a great deal of very interesting information about the legal profession in Québec and I propose to publish more of this in the near future but, in the meantime, any colleagues from Scotland who would wish to contribute to a Quebec/Scotland dialogue should not hesitate to put finger to keyboard.

I had to pay tribute to the kindness with which I was made welcome at the Barreau in Québec and my report of the meeting is entirely my own responsibility.

MS 

Members of our Society were previously known as Law Agents and this title appears to have been replaced by the title of Solicitors since about 1933, as a result of statutory intervention.  However, since then, further statutory intervention and Law Society activity have greatly changed the significance of the title of Solicitor and we wish to propose the creation of a separate identity of Law Agents, to operate within the profession of Solicitors.  This would distinguish those solicitors who act as Law Agents i.e. representing members of the public, from the majority of Solicitors who are not involved in that, traditional activity. 

We attach the text of the Gazette article from March 2013 which explores this issue.

If you are curious regarding the role of the Scottish Law Agents Society in the profession and its significance, may the attached document enlighten you and pursuade you of the importance of membership. If you are a member already appraised of the benefits of membership, you are respectfully urged to peruse and circulate this document.  

SLAS is a particpatory body, responsive to, indeed dependant upon, the contributions of members and feedback from the profession. As part of the recruitment process, SLAS is asking those applying for membership to also complete the attached questionnaire. Responses are also welcome from members and can be submitted via email or post. Such communication helps SLAS to best reflect the views of the profession as a whole and ensure that it evolves in a manner directed by members of the profession. 

For further information about becoming a member of SLAS, email secretary@slas.co.uk. 

“You asked for feedback:-“.  This will be published, warts and all, but, fundamentally, it reads as a plea to move in to whatever century it is that we have now reached. 

The item which has attracted the most attention is our recent enquiry about the prevalence of touting in the profession.  We are told of a rumour that solicitors in a particular area are paying part of their fee back to the estate agents, per case.  Is this any more than a rumour and would this practice be objectionable?  One practitioner has discovered that longstanding clients, on purchasing a brand new property, had been directed by the sales staff to instruct a particular solicitor for their conveyancing purchase transaction.  This appears to have come to light when problems have arisen and the clients have reverted to their previous and better known solicitor. 

One correspondent opens with the tell tale declaration “I am not one of the loony mob that write on everything….” but, counter intuitively, following a detailed and persuasive view of the relevant considerations, closes with the conclusion that “in summary, forcing separate representation, in my view, is the only solution that works for the profession as a whole.”  Again, more details in the forthcoming Gazette.

In the same vein, another correspondent argues that bad lending decisions should not convert automatically to claims on the Guarantee Fund for any technical breach of the CML Handbook.  This reflects the number of claims that have arisen against our Guarantee Fund contemporaneously with the downturn in the property market and touches upon the dubious connection between losses sustained by mortgage lenders as a result of that phenomenon and any technical breaches of CML handbook which might have arisen, for example, from solicitors taking a view in particular circumstances.

Another correspondent rattles the SLCC cage, complaining of a tendency to reject complaints without due process, leading to unsuccessful and expensive litigation in the Court of Session.  Of course, the bill for this and the lack of proper complaint processing lands back in the lap of the solicitors who finance SLCC.  It might be instructive to learn how much of our subscription to SLCC has been spent on such litigation during the past five years or so.  It might also be instructive to find out how much of our Law Society subscription has been spent to finance the other side of that litigation.  It beggars belief that, as a profession, we have got ourselves into the position that we regularly, or even ever, finance both sides of the same Inner House litigation.

These matters will be explored in greater depth in the forthcoming Gazette.

MS

Regards

Michael Sheridan

Secretary   

The topics covered will include separate representation for borrowers and lenders in residential conveyancing, the actings of the SLCC, and the current to attitude to touting for business. One member charges CML with failing to engage with the profession or with the Law Society and insisting on going it’s own way in relation to mortgage instruction policy. Another member suggests that there may be an SLCC  inclination to decline awkward complaints. Other members enquire about solicitors firms paying part of conveyancing fees to estate agents from whom the relative instructions have been referred, and also the practice of having a firm logo and hyperlink on the front page of a charities website. These may be individual, eccentric, moans, for which there is no support and that will simply fade to oblivion after this brief exposure. On the other hand, if any of these concerns chime with other practitioners, then perhaps they should be brought into the open and given full consideration.

Michael Sheridan   

The Royal Faculty Hall was packed with an audience including 73 solicitors or paralegals, and a number of other interested parties representing institutions such as CML and GSPC. This was despite the competition of an important European football match in Glasgow and on television that same evening.

Votes were not counted at the conclusion of the debate but a show of hands indicated approval for separate representation in a ratio of about three to one.  The evening commenced with reports on matters affecting conveyancing received from:

1)      The Glasgow Conveyancing Forum

2)      The Property Law Committee of the Law Society 

3)      The Royal Faculty of Procurators

4)      The Scottish Law Agents Society

5)      LDU

There followed a short talk from John Logan of Stuart and Title concerning the relevance of title indemnity insurance to the separate representation issue.

The debate was chaired by Donald Reid, partner and chairman of Mitchells Roberton.

The speakers FOR the motion were:

1)      Ian Ferguson, Mitchells Roberton, Glasgow, SLAS Council member, and Director LDU.

2)      Professor Stuart Brymer, Dundee.

The speakers AGAINST the motion:

3)      Graham Matthews, Peterkins, Inverurie, Council member CLSS and

4)      Kennedy Foster, Policy Consultant CML Scotland.

Paul Carnan of the GCF steering committee commented that: “The speeches lasted around forty minutes but I was impressed that there was considerable interaction of and contributions from the audience in the question and answer session following the debate before the vote was taken. I got a real sense of the “collegiate spirit” that the GCF is all about. At the meeting I announced that we now have a total of 64 member firms, exceeding all our expectations. We are amazed at how popular the Forum has become and so quickly.” 

For an application form please contact Ian Ferguson (ian@mitchells-roberton.co.uk).        

For a fair report on what happened see:

http://cfalp.wordpress.com/2012/10/23/event-comment/

For Mike Dailly's talk see:

http://www.govanlc.com/representative231012.pdf

I was primed to add SLAS's support to the Fair Access debate but after the formal contributions there was only time for a handful of contributions from the floor and these were given to MSPs, our President and Glasgow University.

Afterwards I made a point of confirming with Tim and Marco Biagi that SLAS were represented. I also had a discussion with Austin Lafferty, Mike Dailly, a partner at Dundas & Wilson and a colleague of Mike's. The conversations we had covered the main points that I took from the meeting:

(a) The Scottish Government have created the problem by withdrawing funding from the Diploma. The meeting seemed to ignore this and instead everyone spoke about what a dreadful thing it was that students who could did not have or could not borrow £10,000 would be excluded. Everyone was agreed that this was dreadful, but no one told the politicians that the problem was of their making.

This may be because Mike Russell's reputation is that when he has made a decision he will not reverse his decision irrespective of the evidence or pressure brought to bear. It did strike me as the worst type of politics whereby politicians create a problem then ask others for help in resolving the situation.

(b) The sub-text that came across from the MSPs who spoke was that the process of qualifying as a solicitor (7 years) was unnecessarily long and the whole process needs to be looked at afresh. Ordinary degrees have fallen from favour so everyone does the 4 years Honours course. There was a suggestion that the Diploma could be subsumed into the under graduate course.

(c) Point (b) was well aired in our discussions afterwards and there was strong support for the return to an apprenticeship with a day release type arrangement. It was generally accepted that 7 years was unnecessarily long.

GG

Members' input is welcome.  Do we have a professional responsibility for the education and training of new lawyers or do we just leave it to external agencies such as Universities, Scottish Government etc?

MS

Incidentally, this was advertised wrongly as £150 per single person in our December newsletter.  This was my mistake, probably made because I could not believe how cheap the proper price was.

I cannot confirm that the same facility is available at the same price this year but I will make enquiries as and when I receive sufficient notes of interests.

Deposits of £25 should be lodged with the Secretary before the end of this February, as expressions of interest.  If there is insufficient take up, deposits will be refunded in full during March. 

I attach the newsletter and enquiry form that was issued in December.

Secretary

The Great Debate

Separate Representation – Are you For or Against?

TUESDAY 12TH FEBRUARY 2013 5.30PM AT THE ROYAL FACULTY OF PROCURATORS IN GLASGOW, NELSON MANDELA PLACE, GLASGOW

Following the successful launch of the newly-formed Glasgow Conveyancers’ Forum (GCF) in November 2012, the first plenary session will take the form of a debate on the highly topical subject of Separate Representation of borrowers and lenders.

At the Law Society AGM in May 2012, a Working Party was established to look at the impact on conveyancing transactions of mandatory separate representation of borrowers and lenders and to consider the possibility of standardised procedures and practice. No recommendation has, as yet, emerged from the Working Party’s deliberations, perhaps reflecting the difficulties faced in this highly complicated area.

The Forum offers member practitioners the opportunity to hear the arguments and to contribute to debate on this important issue. To stimulate discussion, the Forum is delighted to welcome:

AGAINST SEP REP

Graham Matthews, Partner, Peterkins, Inverurie and Member of the Council of the Law Society since 2005: currently Convenor of Professional Practice Sub-committee and

Kennedy Foster, CML Policy Consultant, Scotland

FOR SEP REP

Professor Stewart Brymer, Brymer Legal Limited and

Ian Ferguson, Partner, Mitchells Roberton, Council Member SLAS and LDU Director

Paul Carnan, a spokesman for the Steering Committee of GCF, commented “This should be a lively meeting stimulated by the Debate speakers but with contributions from GCF Members and provides an excellent start to the 2013 GCF year. There will also be a talk by John Logan of Stewart Title on Indemnity Insurance and its relevance to the SEP REP debate plus reports from SLAS, RFPG, GSPC, LDU and the Law Society Property Law Committee.”

It will be held at the RFPG Hall on Tuesday 12 February 2013 - 5.30 pm and is for fully paid GCF Members (£50 for the 2013 year) and invited guests only.

An application form for membership can be obtained from icf@mitchells-roberton.co.uk.

A completed form and cheque for £50.00 payable to ‘Mitchells Roberton’ is to be sent to Mitchells Roberton, 36 North Hanover Street Glasgow G1 2AD (DX GW77 Glasgow). Membership is per practice unit regardless of number. Paralegal members are welcome.

Issued by Ian C Ferguson

for the Steering Committee of the GCF

1. Switch on your computer and go to Internet Explorer.
2. In the address bar at the top of the page you type in the address – www.slas.co.uk. This should bring up the front page or the home page of the SLAS website.
3. Find the word “Log In” at the middle of the top of this page and click on it.
4. This will produce a page which invites you to enter your username and password.
5. If you are not sure what your username is then try typing in your email address.
6. If you have forgotten your password then click on “Forgotten Password” and you will shortly be sent an email with instructions how to reset your password.
7. If you do not think you have a username or a password then click “subscribe” at the middle of the top of the home page. This will take you to a new page where you can fill out your name and address etc and create an account. If the website recognises your details, it will prompt you towards the log in page where you should follow the instructions from step 4 onwards.
8. If all else fails and you wish to add a comment or information or an inquiry to our website then you can do so by any of the following means (in decreasing order of merit).
   
   1. send your comment in an email to secretary@slas.co.uk and we will put it on to the website.
   2. fax your comment on 0141 353 3819.
   3. send a letter with your comment written on it to Secretary, Scottish Law Agents Society, 166 Buchanan Street, Glasgow, G1 2LW, DX GW266, LP5 Glasgow 7

There appears to be an issue here of professional independence which is clouded by the fact that the work is publicly funded and public finance is in short supply. Nevertheless, accused persons who are unable to provid their own legal representation are entitled to rely for this upon the state. At the same time solicitors are, necessarily, independent professionals who require to make their livings from making representations for accused persons. Much ill informed comment has been seen and heard about on this topic. See the following letter issued by the Law Society Legal Aid Negotiating Team to the Justice Committee of the Scottish Parliament for correct insight.

Dear Justice Committee Member,

Scottish Civil Justice Council and Criminal Legal Assistance Bill – Part 2 (Contributions).

We have read a number of statements about the Bill which do not provide a fully rounded picture of the changes in criminal legal assistance that will be brought about by the contributions system.  This letter attempts to clarify the position in respect of these matters.  We would also like to provide details of our negotiating position in relation to the cost of transferring the responsibility of collecting contributions to the Scottish Legal Aid Board (SLAB).

Collection of Contributions

Volume

o In 2011-2012, solicitors were expected to collect £154,000 under criminal ABWOR.[1]

o Under the proposed system solicitors will be expected to collect around £2,722,000 in summary criminal legal aid and criminal ABWOR cases in the first year. [2]

o In financial terms, solicitors will be expected to collect around 18 times the amount of contributions that they are required to collect at present.

o Without a central collection system it will not be possible to monitor the proportion of the £2,722,000 which has been paid by clients.  Therefore, it will not be possible to review the contributions system.

England and Wales

o There is a central collection system in England and Wales which means that the contributions system can be monitored.[3]  This also means that non-payment of contributions in England and Wales does not cause delays in the court system or increase the number of unrepresented accused in court.

Cost of Collection

o SLAB will spend £103,008 out of its Grant in Aid funding on staff costs to collect around £645,000 of solemn contributions.[4]

o The profession will receive no funding to collect over £2.7 million of summary legal aid and ABWOR contributions.

o It would cost SLAB £600,000 to set up an administration system to collect the £2.7 million of summary legal aid and ABWOR contributions.[5]  

Cost of Collection - Our Negotiating Position

o If SLAB collected the summary and ABWOR contributions centrally, the Government would make savings to the legal aid fund unless SLAB recovered only £600,000 or less out of the £2.7 million (approximately 20%). 

o On 31 October, at a meeting with the Government and SLAB, the Society offered to explore with the profession the possibility of the profession funding the administration of the SLAB collection service.  The proposal was made to ensure that savings were made to the fund, albeit potentially less than the target amount depending on collection rates.  The proposal to consider this as an option was rejected by the Government and by SLAB.

Number of Clients Affected by Contributions

The Policy Memorandum states that 82% of clients will not have to pay a contribution.  This is based on an analysis of all the cases which SLAB dealt with in the year up to November 2011.[6] 

Those cases could not have fully reflected the levels of outgoings of clients.[7]  The figure of 82% could only have been based on assumptions made in relation to the levels of outgoings data and those assumptions could be inaccurate.

Contribution Levels - Summary Criminal Legal Aid

Average Amounts

o The average contribution amount which will be payable out of income in contributions cases has been estimated by the Government to be £179, almost £40 more than the existing maximum contribution payable under ABWOR.[8]

o The average contribution amount which will be payable out of capital in contributions cases has been estimated by the Government to be £216.[9]

o The fixed fee is currently £485.  Where the contribution payable out of income is assessed at £179 (the average amount), SLAB will only pay £306 of the fixed fee to the solicitor.  The solicitor would be expected to collect the remainder (£179) from the client.

o Where a contribution out of income is the average amount (£179) the client would have a disposable income of around £118.50 per week.[10]  He or she would not be able to afford the full amount in a single payment and so an instalment system would have to be set up.  Unlike SLAB, many criminal legal aid solicitors do not have such systems in place.[11]

o The average level of contribution payable out of income is £179 but the amount can go up to £1118 depending on the disposable income of the client.[12]

Impact on Solicitor Firms

The impact on solicitor firms will vary from firm to firm.  Given the figures in the Policy Memorandum, it is clear that the modelling provided by SLAB in supplementary evidence to the Justice Committee does not include firms that will be impacted severely by the contributions system.[13]

We would be very happy to assist further if Members have any further queries.  Please do contact Matthew Thomson at the Society (0131 467 8348, matthewthomson@lawscot.org.uk) if you require any further information.

Yours sincerely   

Oliver Adair

Legal Aid ConvenerLaw Society of Scotland

References

[1] Evidence from Scottish Legal Aid Board, Official Report of the Justice Committee, 11 September 2012

[2] Financial Memorandum, paragraph 153 – (Summary + ABWOR savings from contributions)

[3] Legal Services Commission Legal Aid Manual

[4] Policy Memorandum, paragraph 167 and Financial Memorandum, paragraph 153

[5] Evidence from Scottish Legal Aid Board to Justice Committee, Official Report of 25th Meeting 2012 (Session 4) Tuesday 11 September, Official Report - page 1677

[6] Policy Memorandum, paragraph 66

[7] Financial Memorandum, paragraph 161

[8] Financial Memorandum, paragraph 157 and SLAB Keycard 2012

[9] Financial Memorandum, paragraph 157

[10] Policy Memorandum, paragraph 60

[11] Law Society of Scotland Survey on ABWOR collection reported that over 70% of respondent firms either never or rarely collect in ABWOR with many firms citing lack of collection systems as one of the reasons.

[12] Policy Memorandum, paragraph 60

[13] The modelling showed that less than 18% of the client base of each of the modelled firms would have an assessed contribution.  If the 82% figure in the Policy Memorandum is correct there must be firms that have not been modelled with higher percentages of affected clients.

Solicitors who are taking so-called strike action are merely declining to accept instructions in particular cases, which they are fully entitled to do. Failure to support these solicitors seems difficult to reconcile with a proper appreciation of professional independence. However this page is open to whatever opinion may be reflected in the profession. 

Since it would appear that the badge (sorry, 'descriptor') of 'solicitor' is now to be made freely available to any Tom, Dick or LP, perhaps SLAS should be promoting/protecting the use of the term 'Scottish Law Agent' to denote the trusted adviser of choice?

(Subscribed)

See the notes to the draft solicitor descriptor regulations published by the Law Society with fuller comment in the SLAS December Gazette.

On their website (http://www.skillsdevelopmentscotland.co.uk/flexible-training.aspx) it says that there is funding available for:

"- Qualifications including individual units
- Masterclasses
- Learning based on National Occupational Standards
- Industry recognised qualifications
- Supervisory and management training
- Workshops
- Taster sessions

Funding is available for up to 10 employees per business and the money is not a loan so there's no need to pay it back. We will refund up to 50% of each episode of employee training up to a maximum of £500 for each training episode.

For example, if an episode of training costs £1200 excluding VAT, we will refund £500. If it costs £300 excluding VAT, we will refund £150.''

Graduates can apply to register via this link: https://glasgow.mappit.org.uk/Account/LogOn?ReturnUrl=%2f.  Firms should contact 0141 287 7282 or email commonwealthgraduatefund@glasgow.gov.uk.. Grants awarded under the initiative will cover 50% of actual salary costs for up to 12 months; the maximum amount payable is £10,000. 

To be eligible to register graduates must:

-          Live within the GCC Boundary

-          Have been unemployed or underemployed post graduation for 13 weeks prior to application

-          Have gained their graduate qualification after May 2009

-          Have graduated with a degree level qualification and be seeking full time work relevant to that degree.

-          Be legally entitled to work in the United Kingdom

The graduate jobs supported under the initiative will be based in the Glasgow area, although work outside the city is permitted as part of the normal duties of the post. Applications by firms should be in respect of additional posts that are to be filled within 3 months.

The initiative is targeted at Small and Medium sized Enterprises (SMEs) who employ fewer than 250 people.  However, larger companies and new companies may be eligible and should contact 0141 287 7282 for further information. Firms in all sectors of industry and business will be considered, but the fund is not available to public sector organisations.

The jobs created using the funds must be additional to any other graduate recruitment currently undertaken by applicant organisations. Employers must pay at least the “Glasgow Living Wage”, currently £7.20 per hour and the jobs must be for at least 35 hours per week.  Firms who have made, or are planning to make, redundancies may be excluded.

The scheme is already assisting firms to employ trainees. Heather McKendrick, the professional practice team and development officer at the Law Society, reports that one of the speakers at the University of Glasgow’s “Perseverance Pays” event was a trainee who had obtained his post through the scheme.  This exciting initiative may give a much need boost to many more Glasgow graduates still “persevering” with their endeavours to start a legal careers.

The Glasgow Conveyancers Forum will provide an opportunity for lawyers to meet and keep abreast of developments in the law and practice of conveyancing.The steering committee of Paul Carnan of Blaney Carnan Solicitors, Ian Ferguson of Mitchells Roberton, Mike Samuel of Miller Samuel, Martin Berman of Carr Berman & Crichton, Gina Pacitti of Pacitti Jones and Gavin Crowe of A & S Ireland, identified the need for such an organisation in Glasgow.Ian Ferguson, a spokesman for the steering committee, said: "It is generally recognised by conveyancers that we don't get out much."Also talking to friends and relations about conveyancing quickly induces a disinterested look where the eyes glaze over and the topic quickly changes to something else."It is always an advantage to talk instead to similarly afflicted practitioners who can actually find conveyancing interesting."The forum will offer a platform for lawyers to raise concerns or queries and enter discussion with regard to all property-related matters.Members will also discuss reports from the Law Society of Scotland's property law committee, the Scots Law Agents Society, the Royal Faculty of Procurators in Glasgow and from GSPC.The launch and inaugural meeting will be held at the RFPG Hall on a Tuesday between 5.45 and 7.15pm on Tuesday 6 November 2012, with future meetings to take place three or four times per year meeting. These future meetings will qualify for CPD of 1.5 hours.The steering committee invite all conveyancers to attend the launch meeting and see at firsthand what is planned. Membership is open to anyone involved in conveyancing, including paralegals.RSVP by email to Paul Carnan, of Blaney Carnan, at pbc@blaneycarnan.com

“A SECRETIVE CULTURE” EXPOSED re Law Society Policies on Complaints

 “Information Sharing Protocol” between the Law Society and its members required

I wish to bring to the Profession’s attention a matter which has been troubling me for some considerable time in my work as an adviser with the Legal Defence Union (LDU). I will not cover the whole history but after much pressure, fishing and requests I am now in the fortunate position of being in possession of 2 Policy documents regarding Complaints.

There may well be others but the two that I do have are

(1) Policy on Withdrawal of Complaints (POWC) and

(2) Policy on Discontinuance of Complaints (PODC).

My co-advisers at the LDU had not seen them before or even known of their existence.

If you faced a Complaint and one of these documents was relevant would you not wish to know the contents and your legal adviser to have seen these?

I am involved in a recent Complaint which went through the Professional Conduct Committee and is now before the SSDT. On several occasions I requested these Policies from the Society and from the Fiscal but they were refused and not supplied. I had to lodge an application for production of these documents (which was opposed by the fiscal) but quite coincidentally in another unrelated Complaint matter they were supplied. I am not prepared to give the name of the person who quite innocently sent them and in my opinion did the completely correct thing in sending them in response to my request. I was then able to lodge them with the SSDT as productions so my application for production was not proceeded with.

To illustrate the importance of disclosure of Policies I mention a case in which I am involved which was started before the POWC was issued in February 2012. My case would not have been treated the way it has been and would never have been pursued if the legal advice underpinning that Policy and the terms of the policy had been adhered to. Despite drawing this Policy to the attention of the Fiscal the case is still being pursued and the fiscal is arguing against the terms of the legal advice underpinning the Law Society’s own POWC.

All this secrecy is not befitting of a members organisation representing Solicitors. The Law Society of Scotland exists for the benefit of its members (and the public) and if it wishes to represent the members then I do believe it has to treat them with proper respect. I cannot see how it can possibly ever have been in the interests of the Society or its membership to withhold production of these Policies. As a Solicitor defending fellow solicitors against complaints I think it an absolute right to be able to see the Policies that are being referred to which are shaping the advice that is being given. There is a need to know whether the policies are being interpreted correctly or not and if the correct decision has been taken based on their terms.

While Rosemary Agnew was still Chief Executive of the SLCC she sent me a Policy Document in 2010 with all of their Policies on

1)      Accepting Complaints made outside time limits.

2)      Assessing Eligibility of premature conduct and service complaints

3)      Frivolous, Vexatious and Totally Without Merit Complaints

4)      Requesting information and explanations

5)      Settlements and disposal at Determination

6)      Complaint Levy Policy

It was a large booklet but they supplied it simply because I asked for it. How that contrasts with the Law Society. It casts the Society in a very poor light.

I have written to the President requesting that he personally intervenes in this matter with a clear steer from the top that this “secretive culture” has to end. I believe these Policies should be available on request to Solicitor and complainer alike. They could be on the website along with the rules and guidance and that is what I would prefer. However for my own part I would certainly be prepared to accept that they be mentioned on the website and supplied in written form if a request is made.

There may well be other Policy documents which I have not come across thus far and I have requested from the President a list of all the current policies that are held regarding Complaint and Professional Practice matters.

I should mention as relevant that members of the Scottish Law Agents Society met with a number of officials with the Law Society from the Financial Compliance Team (FCT), Guarantee Fund Committee (GFC) and Professional Practice Committee. This was to discuss concern about the Law Society becoming a policeman for breaches of CML rather than focusing on the big picture of fraud and the like. It had seemed to us that there had been a policy change in the way FCT and GFC were handling breaches but there had been no announced decision of a policy change. I understand that a “policy” document has now been drafted and sent for approval.  I understand however that on finalisation that it is intended to publish this policy in some form or make it available on request. I have requested the President to confirm.

The LDU was unhappy with the Information Sharing Protocol entered with SCDEA without any consultation with the Membership and voiced concerns about confidentiality with the then President. The Society have entered such arrangements with outsiders. I have called on the President to have the Law Society enter an “Information Sharing Protocol” with its own Members re these Policies which shape the way Complaints are or ought to be handled.

Previous to the coming into force of the 2007 Act in September 2008 a Reporter Manual was maintained by the Client Relations Office. I learned of it by chance but was not allowed a copy of it or to take a copy of it. No other LDU advisors were aware of it’s existence. Requests for the production of the Manuals were turned down in relation to a recent case. I was told a new Manual (a single manual) was being prepared and the old one was well out of date following the 2007 Act. However it is now some 4 years since the 2007 Act came in to force and 5 years since it was passed and its terms known but there is still no new Manual.

The SLCC issued their Policy Document in November 2010. I have asked the President to intervene to ensure the new Manual is completed without further delay and I have requested an assurance from him that its contents will be published for the benefit of the members and public alike. I fear the Law Society’s reputation would not survive an SLCC audit of Law Society procedures and its continued failure to prepare a new Manual.

Written by Ian C Ferguson

LDU Director and Partner with Glasgow legal firm Mitchells Roberton.

See http://www.ssdt.org.uk/findings/finding_item.asp?LTfindingID=534

In terms of the Tribunal's decision, the CML Handbook conditions are 'there to prevent potential fraud'. It is not the case that that was the original primary purpose of the Handbook, but there can be no doubt that the Handbook (or alleged breaches thereof) is the current principal tool in actions against solicitors, whether by lenders direct or by the Society.

The resounding message to the Profession must now be 'to report, report, report'. There must be no question of a solicitor 'taking a view'. Unfortunately, as we also know, the lenders are no longer geared up to receive/respond to reports in anything like an acceptable timescale. The Profession, perhaps misguidedly, may previously have refrained from reporting certain matters for fear that the delay in a lender responding (in writing) might jeopardise the purchasing client's interests. Since, in any purchase/loan transaction, there must exist at least the potential for a 'reportable item', if follows that every purchase/loan transaction carries a serious potential for conflict, and should therefore be avoided.

Input from members on this difficult topic may be of assistance to the profession and to the long suffering public whom we try to serve and who only seek to buy and sell their homes. 

From the Scottish Law Gazette, June 1937, volume 5 number 2

Admission of Solicitors

The New Regulations

The  new Regulations, which come into force on 1st January, 1938, introduce nothing less than a new standard of education for apprentices. In the first place, the old General Knowledge examination is abolished and an entrance certificate is granted, if the applicant holds qualifications (including a pass in Latin on at the least the lower standard) which would be accepted by the Scottish Universities Entrance Board as entitling the candidate to enter on a graduation course in the Faculty of Law of a Scottish University.

....... The First Professional Examination is divided into two parts, which may be taken separately or together, and if separately, in any order, at any time after entering into indenture. Part 1. consists of Bookkeeping, Trust Accounts, etc., together with the elements of the Theory and Practice of Income Tax Law; and Part II. of Constitutional Law, covering (a) National Government (including Parliament, the Cabinet, the Crown, Executive Government Departments and the Judiciary); (b) Local Government; and (c) Freedom of the Person, of Public Meetings and Speech. The Second Professional Examination includes (1) The Outlines of Roman Law; and (2) Elementary Jurisprudence, covering (a) The Nature and Sources of Law; (b) Rights, Persons and Things; (c) Possession and Ownership; (d) Liability for Acts or Omissions; (E) Obligations and Contracts; and (f) Evidence. The Third Professional Examination corresponds to the present First and Second Examinations in Law.

..... The general result will be to make the course slightly more difficult and slightly more expensive; but on the other hand apprentices will learn at an early date whether they have wisely selected their vocation. Taken as a three years course of study, it would appear to be within the scope of any apprentice of average intelligence with an aptitude for the study of law.

Our trainees in this course were  Rebecca Gilmour, Paul Sturdy, Dorothy Cohen, Andrew Docherty, Laura Sclare, Anna-Luise McLaughlin, David Fitzpatrick, Janey Armstrong, Carolyn McPhee, Lorraine Kerr, Kathryn Allan,  Sarah Murray, Leanne McCrone, Steven Farmer, Andrew Cullens, Meghan Brunton, Donna Askew, Gino Rea and Hazel McLauchlan.

Clydesdale Bank contacted the Society earlier in the year to explain that they intended to put in place as open a conveyancing panel as possible in Scotland. The Bank’s stated policy was clearly in the best interests of both their customers and our members and in stark contrast to the approach adopted by many other lenders. To this end the Society agreed to provide the Bank with a dataset consisting of the names and addresses of all firms which according to our records deal with residential property. The contents of the dataset are publicly available, in a less accessible form, on our website under the “Find a solicitor” facility. The data provided to the Bank was intended to form the basis of their panel. 

After the Society provided the dataset the Bank then gave us very short notice of their intention to ask all panel member firms to send, as a precondition of panel membership, a standard letter of consent to disclosure of further information to the Bank by the Society. We raised concerns about the apparently wide scope of this consent and suggested amendments to the wording of the letter, only some of which were accepted by the Bank before it was issued to panel firms. We have since sought clarification from the Bank as to the scope of the information which will be requested from the Society. In any event, as a matter of policy, the Society will not disclose any confidential information relating to individual solicitors or firms to any third party, without a specific, direct request from the solicitor or firm in question, unless required to do so by statute or directed to do so by the courts.

The Society is continuing to engage positively with Clydesdale Bank to try to address its concerns.

The text of the letter which you require to sign in order to be admitted to the Clydesdale Bank Group lending panel reads as follows:-

“Kimberly McMartin
Clydesdale bank plc (the “Bank")
30 St Vincent Place
Glasgow
G1 2HL

We, the firm, would like to join the retail conveyancing panel of the Bank.

We understand that you would like to be able to receive updated information from the Law Society of Scotland which relates to our firm and we consent to the Law Society sharing this information with you.

We also understand you would like to undertake credit searches against our firm and we consent to the bank undertaking searches of this nature.

We understand that all information provided to the bank and all information we consent to being provided to the bank may be shared by the bank and each subsidiary or holding company of the bank from time to time, and each subsidiary from time to time of any such holding company ("Bank Group") to allow the Bank Group to provide details of the firm to all staff, contractors and third parties including mortgage brokers, customers and potential customers to allow customers and potential customers of the Bank Group to instruct the firm on legal matters.

Further, we consent to the Law Society of Scotland sharing updated information relating to the firm with the Bank including but not limited to change of name, change of address, additional office details and any notification of the outcome of any disciplinary proceedings against any solicitor who is a principal or employee of the firm with CB Group.

We confirm we will also notify the Bank as soon as possible of any such breaches of solicitor or firm rules and regulations.

We understand that the Law Society has provided you with details of our firm name and address and we confirm and agree that we waive any rights or claims of whatsoever nature arising out of or in connection with the provision of such data to you, and the use of such data in your retail conveyancing panel, which we may have against the Bank Group or the Law Society of Scotland.

Yours faithfully”

Solicitors who are affected by these developments (and that means all solicitors) are invited to add their comments to this page (for which purpose they require to join SLAS and log in to the website or, otherwise, to write by email to the Society at secretary@slas.co.uk.

The few practitioners with whom we have discussed this request have expressed the view that solicitors should not submit this letter to Clydesdale.

“This leaves the question as to what size Council should be.  Council members believe a group of 46 members strikes the right balance between the desire for a smaller Council and the need for effective representation for solicitors.

"The Scottish solicitor profession is increasingly diverse with often differing issues facing different parts of the country and different sectors.  That is why it is so important to ensure those varied views and issues are properly represented on the Council.

"Over recent weeks, there have been calls from some members for a radically smaller Council.  However, the current Council believes such a change would have big implications for the Society which would need to be properly considered and consulted on with members.

"It is now for our members to review and discuss these changes at the AGM and I would encourage as many members to either attend in person in Perth on 31 May or appoint a proxy to vote on their behalf."

Against that we have to consider the comments of a former CLSS member who took a different view when he wrote to the current vice president, as follows :

Dear Vice President,

I made two points in my letter. The first was that the Society had not agreed in general meeting to exercise the power in section 1A of Solicitors (Scotland) Act 1980 to act as regulator of Licensed Providers. You have not answered this point. The power to act is in the hands of the Society not of the Council. It is not a function of the Council to make such a decision under section 3 of the Act. You make arguments in favour of Council policy, but the decision rests with the members.

What is at stake for members of the Society is the reputation and standing of Scottish solicitors, described by some as "the solicitor brand". That reputation has been hard-won and can be easily lost. I have seen no attempt by the Council to explain to members the extent to which external ownership of law firms is proposed or what work they have done to assess the risks for members, and their reputation as Scottish solicitors, which may be associated with external ownership of law firms.

If the Society as regulator grants licences to Licensed Providers, it grants express approval to organisations which according to the statute must have some degree of external ownership. But the Society is a members’ organisation. The implications of the 2010 Act are beginning to be better understood. As you yourself have persuasively pointed out, they may be damaging to many members. Members are entitled to decide whether the Society should exercise its power.

To obtain the support of members at a general meeting, the Council needs to explain clearly and precisely to the members what it proposes to do and how it proposes to deal with the risks of such a major change.

The Council is bound to act within the law. If your argument is that a referendum in some way takes precedence over the requirements of the statute and the Constitution, it is wrong in law.

My second point was not a legal point but a governance point. We are now told that the Council will propose to members that it will in future comprise 30 solicitors elected by constituency, up to 7 co-opted solicitor members and 19 non-solicitor members, making a total of 46.

The regulatory functions of the Council, including making regulatory rules under any relevant enactment, are defined in section 3F of the 1980 act. Under section 3B the Council must exercise their regulatory functions through its regulatory committee and must not interfere unduly in the regulatory committee's business.

Members are firstly entitled to be told by the Council what its remaining functions are. Secondly they are entitled to an explanation of why Council considers that its proposed change to 46 members constituted as is proposed, is now an appropriate governance model. It may be that Council formed in this way will not be a good model to provide effective governance for its new functions.

One possibility of dealing with the problem would be to set up a separate representative committee along similar lines to the regulatory committee. There are other possibilities. However members should not be asked to accept a governance arrangement without an explanation of why the proposed change will be appropriate for its new circumstances.

WS

This page is available to those members who have logged into the website to publish and exchange views. Those who would like to cast a vote in the issue but are unable to attend the AGM are invited to print out, complete and post in (not fax or email) the form of proxy attached below to authorise SLAS Council to vote on their behalf.

SLAS Council is willing to travel to other parts of the realm and the rush of invitations is awaited.

Secretary

1. The notice given by SLCC of this enquiry is insufficient to enable the solicitors’ profession to give collegiate consideration to and to make a considered decision upon the very important issue as to whether or not this sensitive information should be disclosed..
2. The cost of this exercise has to be borne by the solicitors’ profession and no information has been provided as to whether that cost has been estimated and as to whether the exercise will be cost effective.
3. No information is given as to whether or how SLCC has satisfied itself that this exercise falls within its statutory remit and its entitlement to expose solicitors to these costs.
4. The SLCC request does not advise as to whether or not there is any obligation on the part of solicitors to provide this information.
5. Information held by solicitors is private whereas information held by SLCC is subject to Freedom of Information enquiry, disclosure and publication.
6. Law Society officials recommend that firms disclose this information to SLCC.
7. Solicitors do not have any obligation to disclose this information to SLCC.
8. A better option might be for the information to be gathered within the profession where it would remain confidential and beyond the scope of Freedom of Information enquiry and only the conclusions be transmitted to SLCC. This might be achieved through the faculty structure or through the Scottish Law Agents Society.
9. Any research carried out at this stage might helpfully include enquiry into the extent to which the current complaints system accommodates abuse of process by persons who are dissatisfied with proper legal findings
10. The best initial response to this enquiry might be to ask for a further period of time to enable the foregoing issues to be considered and resolved.

Members are invited to submit their own reflections and suggestions in relation to this development.

This aim is underpinned by five objectives.

• Excellent solicitor professionalism and reputation
• Our members are trusted advisers of choice
• Our members are economically active and sustainable
• The Society is the professional body and regulator of choice
• The Society is a high performing organisation”

If the Society is to promote its members as the trusted advisers of choice how can it also promote the Society as the regulator of choice of non members who compete with its members?

On the one hand the statutory objective of the Society is to promote the interests of the solicitors’ profession, and on the other hand the Society, by regulating them, intends to promote the interests of non-solicitors  who will operate competitively with solicitors.

 How can the Society promote itself as the professional body regulating   other professions?

The fourth objective cannot refer to solicitors because they have no choice of regulator.

How does the Council propose to resolve these conflicts which are inherent in its expressed objectives? If it cannot these objectives need to be reconsidered.

CW