Scottish Law Agents Society - News http://www.scottishlawagents.org.uk/news Scottish Law Agents Society - News http://www.scottishlawagents.org.uk/ Scottish Law Agents Society - News http://www.scottishlawagents.org.uk/news en-gb Copyright 2018 Scottish Law Agents Society. All Rights Reserved. Scottish Law Agents Society http://www.scottishlawagents.org.uk <![CDATA[ SLAS Membership Application Forms In September Gazette]]> http://www.scottishlawagents.org.uk/news/slas-membership-application-forms-september-gazette-0 /node/3045 /node/3045#comments  

 

Some members have been puzzled on receiving SLAS membership application forms with the September Gazette. Some existing members have even re--applied to join SLAS. However, when you read the edition, you notice that it contains also an application form for admission to the SLAS TCPD programme in January 2019. The SLAS membership application form is intended for completion along with the TCPD application and can be safely be ignored by existing members. At the same time, of course, existing members can always make the application form available to those colleagues who are not yet members of SLAS. Indeed, the application form might be multiplied many times over for that purpose.

Sec.

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Member News Tue, 09 Oct 2018 11:54:41 +0100
<![CDATA[Beautiful Girl or Old Hag?]]> http://www.scottishlawagents.org.uk/news/beautiful-girl-or-old-hag /node/3042 /node/3042#comments  

What has a beautiful girl or an old hag got to do with the regulation of the solictors’ profession.

 

What has a beautiful girl or an old hag got to do with the regulation of the solicitors' profession. Probably about as much as most members of the that profession. See the September edition of the Scottish Law Gazette which will definitely not provide an answer to this conundrum.

 

MS

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Member News Fri, 21 Sep 2018 14:57:54 +0100
<![CDATA[Consumer Property Group of SLAS]]> http://www.scottishlawagents.org.uk/news/consumer-property-group-slas /node/3040 /node/3040#comments A Consumer Property Group has been formed by the Scottish Law Agents Society to look at particular issues where the interest of consumers and solicitors are aligned and action required to improve the situation of both in relation to Property in Scotland.

Reason

There is wide perceived discontent of the legal practitioners with the operation of parts of the Land Registration (Scotland) Act 2012 and the way it can adversely affect consumers and users.

Particular Areas of Concern

1) Gaps are appearing in the Land Register where ownership is likely to never be known. There is no effective mechanism to sort out these gaps for the future. Why? There has been an effective abolition of the benefits obtained by use of a non domino Dispositions. The procedures under Section 43 of the 2012 Act are far too long and are capable of frustration at the last minute because of burdensome intimation procedures and possible late challenge of these. This is not an effective way of filling in gaps in the Land Register. Most legal practitioners are simply not using them now and rely on Title (or more accurately Dispossession) Indemnity Insurance Policies which once taken out will mean the Title will never be cured for the future as any attempt will invalidate cover under the Policy. Thus the Land Register Cadastral Map will have "black holes or slivers of land" whose ownership cannot be effectively identified backed up with indemnity insurance for large numbers of Titles. Part of this problem was created by practices adopted by the Keeper under the Land Registration (Scotland) Act 1979 and the way the Keeper dealt with "gap areas". It was part of the practice of the Keeper to ask in the then style of application form whether an applicant wished to register to the full extent of their Sasine Title or only to the possessory extent if less. Legal practitioners assumed, perhaps naively, that this would mean that when the neighbouring property came to be registered it would receive the benefit of the “disclaimed” area and the Keeper would automatically include it in the Title to the neighbouring property. That has not happened and is not happening. It would have been far more sensible to show the full extent in every case which would lead to the applicant having Title to that gap area occupied by a neighbour and the applicant could convey it to the neighbour if agreement was reached. Resolution One method of resolving this position would be to reintroduce a non domino Dispositions. However this time the period of prescription would be 20 years and not 10 years. There is some legal basis for this in that such a system has been recommended by the Scottish Law Commission to be included in the proposed reform of moveable property law such that if moveable property has been possessed for over 20 years it can become ownership. This would be consistent with a change to the heritable property position proposed above. Also 20 years is the recognised long negative period of prescription cutting off rights (whether there has been intimation or not) and so a balance in terms of the Human Rights Act may be struck. This particular solution would require amendment of the 2012 Act.

2) Rejection The so called ‘one shot rule’ is built into the 2012 Act and is supposed to prevent a ranking or preference of title being preserved too long. There are 2 stages. Initial Sift - Early Rejection Of all the areas that have been a source of discontent with the Act, rejection is the largest. However I think there is now reluctant acceptance by the legal profession that "initial sift" applications may be justified and while rejection is unfortunate it will normally not be time critical. Post Sift - Late Rejection However it is a different matter where an application has been admitted by the Keeper and has passed the initial sift and thereafter some flaw that is not obvious or technical leads to a later rejection of the case, some times a year or more after the application was lodged. These are normally cases where the flaw was not apparent to the solicitor or the Keeper in the Stage 1 part of admission or rejection. It is the “late rejection” cases about which the SLAS Consumer Property Group has concerns. There is a world of difference between some obvious error at the initial sift and the more complex reasons for “late rejection”. It is unacceptable that such cases should be rejected without the opportunity of the matters being rectified (if that is possible). There is no flexibility in the present scheme for a period to allow the application to be altered. More thinking needs to be done to remedy the situation but the present position is completely unsatisfactory. There will be those who say that if there is a late rejection it is all the Solicitors fault and owners affected can claim on their indemnity insurance but we do not believe that is a consumer answer. At present a Solicitor will have to carry the can for this and that will be the case if some intervening event like bankruptcy, receivership, sale on or grant of a security etc has taken place and the property lost. Some may argue therefore that the solicitors with the failed application will provide redress. However it is not proper redress as far as consumers are concerned. Consumers want the “mud” i.e. the house and not “compensation” for not getting it. The problem with the present position is that if there is a late rejection and some act intervenes then the consumer will not receive the Title to the "mud" or the house that he should obtain. This system is wrong. It requires to be corrected so that the effect of late rejection is proportionate and the consumer does not lose the house or mud. This requires amendment of the 2012 Act. Another solution might be to have a statutory deemed acceptance by the Keeper if a case has not been rejected within say 1 or 3 months.

Action

1. Engage with the Scottish Government to persuade the Scottish Ministers that action is required in the interest of consumers to improve the present system of land registration in Scotland as it is presently not working in favour of consumers and to warn them that the completion of a cadastral map of every part of Scotland is doomed leaving multiple gap areas with unidentified owners.

2. Engage with the Keeper of the Registers of Scotland in meaningful dialogue with regard to these areas of discontent. To explore what policies and procedures under existing legislation could be developed to meet or alleviate these concerns and if not to pursue satisfactory amendments of the Land Registration (Scotland) Act 2012.

3. Engage with other Legal Professional organisations and Solicitors to achieve these objectives.

END

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General Wed, 05 Sep 2018 08:45:11 +0100
<![CDATA[Minutes for the Annual General Meeting of the Scottish Law Agents Society 2018 ]]> http://www.scottishlawagents.org.uk/news/minutes-annual-general-meeting-scottish-law-agents-society-2018 /node/3034 /node/3034#comments Minutes for The Annual General Meeting of the Scottish  Law Agents Society 2018

 5:30pm on 21st June 2018  at the Royal Faculty of Procurators in Glasgow.

 

1.         Sederunt and apologies:-

 

            A Sederunt was taken of the members present and a quorum was confirmed..

 

Apologies were received from Rod Maclean, Ken Swinton, Ian McLeod, James Hotchkiss,

 

2.         Minutes of AGM 2017 had been published in the Gazette of June/July 2017 and were unanimously approved by acclamation with no contrary voices.

 

3.         The Society’s Accounts as previously approved by the office bearers were presented to the meeting and duly noted and meeting confirmed the appointment of Messrs Geoghegans of Edinburgh as independent examiners. The President, Fiona Dalton went on to present the annual report to 31st December 2017 as follows:-

 

Scottish Law Agents Society

 

ANNUAL REPORT

 

For the year ended 31st December 2017

 

 

2017 was the 130th year of business for the Society and the usual wide range of business was carried out. Council meetings were convened each calendar month with the exception of January when a meeting was convened of the President’s Committee and July when people are supposed to be on holiday but, this year, when a Presidents Committee meeting was convened also.  A full complement of quarterly Scottish Gazettes was issued along with the Annual Memorandum Book. However, due to various pressures, the December 2017 edition was not issued until January 2018. The Scottish Solicitors Benevolent Fund meetings were convened in May and November leading to about 10 awards in each case and a number of awards were also made through the Tod Foundation.

 

Council Meetings

 

These were generally convened at 166 Buchanan Street Glasgow but the May and November meetings were convened at the Law Society offices in Edinburgh by reason of the convenience of carrying out the SSBF meetings jointly with the Law Society on the same day. In addition, The June meeting was held at the Royal Faculty of Procurators at Nelson Mandela place for convenience along with the Annual General Meeting and the December meeting was also held at Nelson Mandela Place for convenience along with the Christmas party. The October meeting was held in Dumfries and this was a convivial function which was extended to include some local non council members which added to the value of what is a meeting of a national body.

 

 

 

 

 

 

 

 

Scottish Law Gazette.

 

The topics which were addressed in the Gazette during 2016 included land registration problems with reference to the Cadastral map, the presumption of regularity, the amendment of pleadings after proof on appeal, alternative business structures in 2017, gratuitous alienation and the CML Handbook, an item on the Law of Rugby, Brexit and the separation of powers, the availability of heritable securities in 3D, demolition orders, and invocation to kill all the lawyers, reflections on a lifetime in country practice, an AML update, the creation of an effective trust, employment tribunal fees, the law of midges, incapax executors, the court fees consultation, the Independent Review of Regulation of Legal Services and Scottish Law commission publications. Nevertheless, it is becoming increasingly difficult to publish four editions of the Gazette each year and all members are requested to give urgent consideration to the submission of matters that may be of assistance or interest to their colleagues in the profession. In this world of electronic and fake news the Gazette remains as an indelible record of both the contributions not to mention the very existence of individual members and of our Society as well as of key events in our professional undertaking and members are urged to keep this invaluable organ alive and kicking because it can be seen sometimes to be struggling.

 

Memorandum Book

 

Production in paper format continues as reflects the will of the majority of the membership. The now current format of the memorandum book is more of a legal update than a repository of reference wisdom.  Previous year’s appeals for input from the membership as to the future contents, function and design of the memorandum book has met with an extremely muted response and Council has to carry forward these issues for further discussion and consideration in the future. Is that future electronic? Will there be a memorandum book at all? These are some of the questions

 

           Meeting with Law Society of Scotland and Registers of Scotland, 6th March 2017.

 

Perhaps the most significant event during 2017 was our meeting with the Law Society of Scotland and the Keeper of Registers of Scotland, at Edinburgh, on 6th March 2017.  This meeting was called on receipt of our enquiries to the Law Society and to Registers of Scotland as to whether there were significant problems arising in the registration of titles following the operation of the 2012 Act and the imposition of the Cadastral Map.  Our information from our own membership indicated that there was a significant problem, particularly with regard to the rejection from registration of certain property rights that were already recorded in the Register of Sasines or registered in the former Land Register.  Neither the Law Society nor the Keeper accepted that there were a significant number of any such problems but we were cordially invited to submit individual cases for consideration.  However, our own experience was that members, while, quite willing to advise that there were problems in general, did not think it worthwhile submitting individual complaints to our own Society.  As a result, we had very few individual cases to look at.  (See evidence of this reluctance at the report below from the October meeting in Dumfries)  However, our Society’s policy remained that the creation of a Cadastral Map should be separated from the essential function of the Land Register to provide a record of land ownership and access to real proprietary rights.  (It transpired that during 2018 that there are in fact about forty thousand applications for registration currently in a abeyance at the Lend Register and the new Keeper has published an apology for the state of affairs.)

 

            The October Meeting at Dumfries

 

There was a reasonable turn out of Council members and also some local representation and also a number of apologies from local solicitors who indicated interest in the meeting but were unable to attend due to business commitments.

 

This meeting addressed the current problems of land registration arising, at least, in part, from the Land Register having extended its function from registration of title to include the formation of a Cadastral map which latter objective appeared to bring about delays and rejections of applications. The meeting confirmed Council’s findings that, while solicitors were  prepared to complain about these things at face to face meetings, they were generally unwilling to register their difficulties with SLAS. One member was kind enough to volunteer that he simply could not face filling in the SLAS enquiry form. This meeting addressed also the problems arising from General Data Protection Regulation and from the prospect of Alternative Business Structures which latter topic had now brought a state of uncertainty to the profession and the public for about the past seven years. Members whose accounts were in perfect order were nevertheless having difficulties with Guarantee Committee inspections from the Law Society, there was difficulty in reconciling the operation of English and other foreign companies in Scotland with what was understood to be a prohibition or at least a discouragement of Scottish solicitors sharing fees with other persons and businesses.

There was concern about a number of litigations running between the Law Society and the Scottish Legal Complaints Commission in which Scottish solicitors were paying for both sides of multiple actions. There was concern also about the extent to which conveyancing practice was now subject to regulation by CML rather than by the Law Society of Scotland. The meeting confirmed Council’s policy to promote a general meeting prior to the next AGM of the Law Society with a view to raising some of these concerns at that AGM

 

 

Conclusion

 

 A reflection upon the year of 2017  reveals that the undertaking and even the very existence of the solicitors’ profession and the essential service that it provides to the Scottish public are under threat from, at least, the prospect of alternative business structures and the unfolding problems of land registration. However, neither of these issues is recognised as a problem at the  Law Society.  Nearer to home, there is little purpose in the Scottish Law Agents Society becoming vexed about these issues if there is no support from the wider profession or even from its own membership.   That, perhaps, is the first issue which the new Council should address even to the exclusion of other issues.

 

An extended version of this report statement shall be issued in the June 2018 Gazette which will probably be published in early July.

 

4.         .Election of office bearers and Council members.

 

            The secretary advised the meeting that the following nominations had been duly proposed and seconded in terms of the constitution and, there being no opposition or other nominations, office bearers and Council members were duly confirmed.

 

            SLAS Council 2017 - 2018

 

Members of Council::-

 

President:

FIONA DALTON

 

Vice-President:

JOHN STIRLING

 

JOHNNIE A M CUTHBERT

 

Ian C Ferguson

 

James Hotchkiss

           

ROD K MACLEAN

 

David P H MacLennan

 

Dorothy McGhie

 

IAN R McLEOD

 

MARY B Pirie

 

CHRISTOPHER P SHERIDAN

 

MICHAEL SHERIDAN

 

Andrew Stevenson

 

Kenneth W Swinton

 

Catriona Walker 

 

5.         Discussion topics

           

  1. Alternative Business Structures

 

The meeting was satisfied that the Society’s position had been stated clearly and accurately in recent papers including the submission to the Scottish Government’s  Independence Review in to the provision of legal services.  Meeting agreed that we should now simply keep a watching brief on further developments and, in particular,  to keep under review  the influence in Scotland of foreign jurisdictions. 

 

Meeting was uncertain whether the existing regime of ABS under the 2010 ACT was likely to be revived or whether the Scottish Government would produce a new statutory regime.  In the latter case, the Society would have to decide whether to challenge that new regime.

 

  1. Proxy voting at Law Society meetings.

 

Again, the meeting agreed that the Society’s position was properly stated in the Secretary’s speech to the AGM of the Law Society. And that this item should be kept on the Agenda with the recommendation that the new Council should renew this application to the Law Society and seek to have the matter raised as a Motion at the Law Society AGM of 2019. 

 

 

  1.  Land Registration Problems

 

Secretary advised the meeting that there had been virtually no response from the membership to repeated enquiries for specific examples of difficulties arising.  Ian Ferguson suggested to the meeting that we should proceed with this issue as being a consumer issue and a matter of importance to the membership and the wider public.  If neither the Law Society nor the Keeper will undertake a risk assessment then we could carry out our own risk assessment and consider submitting a Freedom of Information request to the Keeper for details of the numbers of applications for registration rejected even after the Sift.  Meeting enquired whether this information might be already available.  The meeting was particularly concerned about the prejudice to lenders’ interests when a transaction was completed, loan money applied, title application complete and not rejected at Sift but then, at a later date, the title is rejected.  Secretary suggested that this is a complete departure from the traditional and established function of the Keeper i.e., to record applications for registration of title and thus complete the real right of ownership.

.  Perhaps an enquiry could be directed to the OFT. Meeting was reminded  that current  news appeared regularly on SLN and there was also AAM Legal; matters and items could be raised on both of these channels.  We should seek, for example, that the date of acknowledgement should be the date of registration of title and therefore of the creation of the real right of ownership.  The Keeper should be required to distinguish between subtle, technical failures as opposed to blatant mistakes in applications.  The title application might be suspended for sixty days during which any corrections can be made and the title registered from the commencement of that period.

 

(d)  The meeting considered the standing of A Non Domino applications which have now been abolished and wonders whether these might be reinstated subject to a period of 20 years of title and possession.  Otherwise, it was uncertain how holes in the title might be filled.

 

(e)  Conversion of Sasines to Land Register.

 

      This was now operating without reference to the immediate owners and therefore without any checking on their behalf as to whether their new titles were consistent with the previous title.  It is possible to check your title free through Scotlis. If such checks are not carried out in advance of sales of the properties then there might be unexpected and possibly fatal problems at the time of sale.

 

 

 

 

 

 

Secretary

MICHAEL SHERIDAN

  Sheridans

  166 Buchanan Street, Glasgow G1 2LW

  Tel: 0141 352 4522  Fax: 0141 353 3819

  LP 7 GLASGOW 5

  DX GW 266 Glasgow 

  e-mail: secretary@slas.co.uk

 

 

The Scottish Law Gazette

(Published Quarterly – March, June, September & December)

 

Editor: KENNETH W SWINTON,

  62 Strathern Road, Broughty Ferry, Dundee DD5 1PH

  Tel: 01382 308413   Fax: 01382 308400

  e-mail: ken@swinton98.freeserve.co.uk

 

 

 

 

 

 

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Member News Tue, 10 Jul 2018 14:22:07 +0100
<![CDATA[More Bureaucratic Oppression ]]> http://www.scottishlawagents.org.uk/news/more-bureaucratic-oppression /node/3032 /node/3032#comments AML Registration at Law.Soc.

It was easy enough, after a few days of interrupting our usual hectic business schedule, to obtain Disclosure Scotland documents for each of the partners in this firm. However, getting together over the Law Society Registration process took another few days and then pinned us down for longer than we anticipated. Eventually, however, we got the job done and, hopefully, that is the name of our firm removed from the “Current Outstanding List” currently held by the Law Society.

My recommendation to all members is to get the job done, just as quickly as possible. We should then re-group at a later date to find out whether anything can be done about the current storm of bureaucratic oppression which threatens to destroy our business viability.

In order to take on this process you should click on this link https://www.lawscot.org.uk/members/business-support/financial-compliance/anti-money-laundering/new-aml-registration-requirements-frequently-asked-questions/

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General Mon, 04 Jun 2018 14:16:37 +0100
<![CDATA[Law Society AGM 2018. Any Comments? ]]> http://www.scottishlawagents.org.uk/news/law-society-agm-2018-any-comments /node/3031 /node/3031#comments You might have noticed from the agenda for the Law Society AGM on Thursday 31st May 2018 at 5.30pm at the Law Society offices at 144 Morrison Street, Edinburgh, EH3 8EX, not far up from Haymarket Railway Station.

I have attached the Agenda for the AGM below and you can decide for yourself whether this agenda is in touch with the issues which currently face the profession. SLAS has been invited to make a statement about the current issues of Alternative Business Structures (ABS) and the abolition of proxies from most issues. However, these two topics have the common denominator of the general level of connection or disconnection between the Law Society and the High Street practitioners. If any member would like to provide me with comments to include in my remarks then please email to secretary@slas.co.uk or add a comment to this article.

If you add a comment, the comment will not appear immediately as, for security, decency etc., it has to be authorised at the Secretary’s office for publication.

Please let me have your thoughts. The agenda is as follows:

 

Order of formal business

 

1.            Approval of the Minute of the Annual General Meeting held on 27 May 2017

                and the Minute of the Special General Meeting of 25 January 2018.

 

2.            The President’s Address.

 

3.            The adoption of the reports from the Treasurer; the Client Protection Fund Convener; the Audit Committee Convener; the In-house Lawyers’ Committee Convener; and the Convener of the Scottish Solicitors’ Benevolent Fund (SSBF) for 2016/2017.  - These reports are available to read on www.lawscot.org.uk

 

4a.          The approval of the Annual Report and Accounts of the Society; the Client-Protection Fund and the SSBF for 2016/2017.

 

4b.          The appointment of the Auditors to the Society; the Client Protection Fund; and the SSBF for 2017/2018.

 

- These annual reports and accounts are available to read on www.lawscot.org.uk

 

5.            Chief Executive’s Report

 

Presentation by the Chief Executive on the Society’s current operating performance and five year strategy 2015/2020.

 

 

Resolution         

 

 

 

6.            Practising Certificate fee for 2018/2019 - Resolution number 1

 

                Resolution from the Council on the Practising Certificate Fee for 2018/2019

 

“That, as from 1 November 2018, the Annual Subscription held by each member of the Society holding a Practising Certificate will be £565”

 

Topics for discussion

 

7.       The Council has agreed that Michael Sheridan, Solicitor, Glasgow can raise at      

           this meeting the topics of Alternative Business Structures and Proxy voting for

          discussion.                                

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Press Releases Mon, 21 May 2018 14:29:46 +0100
<![CDATA[Professor Joe Thomson FRSE 1948 - 2018]]> http://www.scottishlawagents.org.uk/news/professor-joe-thomson-frse-1948-2018 /node/3030 /node/3030#comments The Society was very sorry to hear of the passing of Joe Thomson during the weekend and offers condolences to Joe’s wife, Annie. Apart from Joe’s academic, teaching and writing achievements across the spectrum of the academic and practical operation and development of Scots Law Joe also found time to make a valuable contribution to our own Gazette. Many tributes will worthily be paid to Joe but if there is one underlying quality that very many people recognised and were grateful for it is the way in which Joe tackled the complexities which he addressed and explained them in ways which enabled lesser mortals to have a better understanding.

MS

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General Tue, 15 May 2018 14:08:54 +0100
<![CDATA[Independent Review of Regulation of Legal Services - March 2018]]> http://www.scottishlawagents.org.uk/news/independent-review-regulation-legal-services-march-2018 /node/3025 /node/3025#comments  

Independent Review  of Regulation of Legal Services -  March 2018

This month of March 2018 brings us  a late opportunity to make a submission to the Scottish government's current Independent Review of the Regulation of Legal Services in Scotland. A few weeks ago that Review issued a call for evidence to be submitted by 30th March 2018. We have therefore hastily convened a general meeting in Glasgow and have discussed matters as fully as we could in the time available and have now produced the undernoted response to the call for evidence.  You will recollect that developments took place in England about 14 years ago for the deregulation of legal practices permitting the sale of shares in these practices in the commercial market. The vigorous rejection of that notion in Scotland was led by the President and Council of the Law Society of Scotland (CLSS}. That was until 2008 when that policy was turned on its head so that CLSS came to support  an even more liberal sell off than was permitted in England. This became known as Alternative Business Structures  (ABS). It then transpired that  the equity  partners of certain large legal firms which were in financial difficulty had seen the opportunity to hugely increase their personal returns by selling off the firms to banks and other commercial investors. The Scottish Government has shown clear misgivings about this policy and has set up a review into the future regulation of legal services in Scotland .  Now the Scottish public has until the end of this month to write to the Independent Review into Scottish Legal Services, GW10, St Andrew’s House, Regent Road, Edinburgh EH1 3DG to explain why Scottish legal firms should not be made saleable, in whole or in part, outwith the Scottish legal profession .

We propose to submit this response to the Independent Review on Thursday 29 March 2018 and would be happy to receive any input thereon from the membership in the meantime.

MS 

 

RESPONSE TO CALL FOR EVIDENCE

FROM THE

INDEPNEDENT REVIEW OF THE REGULATION OF LEGAL SERVICES 2018

 

The Scottish Law Agents Society (SLAS) was formed by Royal Charter of Queen Victoria in 1884 and is the oldest, largest and, indeed the only voluntary national society for solicitors in Scotland.  The existence of this Society is proof of the collegiate and independent nature of the Scottish legal profession.  The Society is wholly owned by the profession with no public or statutory input and exists to promote the interests of the legal profession and to promote the strength and independence of that profession in order to make it better able to serve the interests of the public and the rule of law.   The main objective of this Society was the formation of a statutory  body so that standards of training and conduct could be made compulsory in order to provide the public  with a reliable service and protection.  This object appeared to have been achieved with  the formation of the Law Society of Scotland in 1949, as currently  governed by the Solicitors (Scotland) Act 1949. However, members of SLAS were aware that the statutory body would not be under the control of the profession  and SLAS was retained mainly for professional representative purposes. 

SLAS Council meets monthly, usually in Glasgow or Edinburgh but, in order to help keep in touch with the membership, meets also in various parts of Scotland so that, in the past three years, meetings have been held also in Perth, Oban, Inverness, Wick and Dumfries.

The Society’s Council has instructed a response to the above review in the following terms.

1 Regulatory System

Who is being regulated ?     It appears to be obvious that it is solicitors who are being regulated. However, that may not strictly be the case. This is because the word solicitor now has a multitude of meanings. It includes solicitors who carry out in exchange for financial remuneration  some or other of the reserved  areas  of work identified in the  Solicitors (Act) 1980 and  whom we might refer to as reserved work (RW) solicitors.  That  work may  be   summed up as acting  for  clients in the Courts and also in   the purchase and sale of land and buildings.   A  substantial majority of solicitors, however,  do not in fact carry out that type of work  or, if they do, they do not receive financial remuneration from clients.   We  might refer to the latter category as in house  solicitors. These include the many hundreds and probably  thousands of solicitors who are employed by local authorities  and do not work for clients nor for professional remuneration related to services provided in the reserved areas but rather for salaries as public employees. While these solicitors do not require practising certificates  from  the Law Society  to enable them to carry out their employment, nevertheless, it is normal for them to obtain practising certificates, presumably for the status of solicitor which goes with the holding  of a practising certificate. Likewise, the hundreds and possibly thousands of solicitors employed by the Crown  Prosecution Service and other government agencies   have no need of practising certificates  from the Law Society.   In house  solicitors, therefore, have no clients  in the normal sense  and do not hold clients money and  are only marginally affected by the regulatory system for solicitors.  The vast majority of these solicitors could give up their practising  certificates and carry on with their work relatively undisturbed and might be regarded as having less at stake in the regulatory regime.   RW  solicitors, on the other hand enjoy the legal monopoly of undertaking work in the reserved areas  in consideration of professional remuneration paid to them by their clients and, in exchange for that monopoly,  are subject to the full gamut of the regulatory system which is now under consideration.  A whole barrage of accounts rules compel solicitors not only to properly account to clients for every penny entrusted to the solicitor, but also, policeman like, to carry out checks as to where that money came from, to earn appropriate interest for the client  on these funds and not to hold funds outwith certain time limits. Other regulations make solicitors liable to repay fees to clients and to pay compensation in addition in circumstances where no legal wrong has been done but where a non-judicial finding has been made that the service provided was not good enough. These fees are then repayable  notwithstanding that up to about 80% of them may already have been applied to support costs such as staff wages etc  as well as VAT and income tax  and are therefore not refunds of fees but simple fines upon  a solicitor who may well have completed his undertaking towards the client in a legal sense  but whose service  has been  deemed not to have been good enough.   Other regulations extinguish solicitors’ entitlement to remuneration for legally aided work years earlier then would apply to other businesses.  Other regulations make solicitors liable for professional misconduct and possible striking off and loss of livelihood if they omit issue clients with written terms and conditions of engagement. None of these constraints apply to in house  solicitors.

The number of solicitors in Scotland probably exceeds eleven thousand but the number of RW solicitors who are materially affected by the regulatory regime under review is unlikely to be any more than a third of that number.

It is important to understand from the outset who stands to be governed by the regulatory regime, how many practitioners are included and what facilities are available to ascertain the representative views of those practitioners. For example a solicitor depute procurator fiscal may have no objection to a solicitor having an obligation to report the illegal financial activities of a client but that depute will never be subject to that responsibility or to the  risk to his person and his family that may arise when that client comes to be prosecuted and learns of the source of that prosecution.  Because of the relatively small number of RW  solicitors within the overall category of solicitors there is a danger that their  views may be diluted by the views of the overall category, notwithstanding that it is the RW solicitors who stand mainly to be affected the regulatory regime under review.  While the Law Society consists of the whole body of solicitors, SLAS membership is concentrated among the RW fraternity and is therefore much more representative of the views of the solicitors who stand to be affected by the regulatory regime.  This is  quite apart from he circumstances narrated below at Appendix 1 paragaph 4 which indicate that the Law Society policy toward ABS in particular  may have been influenced by the interests of the tiny minority of equity owners from large firms in financial distress, rather than by the interests and views of the general body of the solicitor profession or of the RW solicitors in particular.

 Recommendation.

The Review should ascertain which and how many solicitors will be governed by the regulatory regime which is under review and should seek confirmation from the Law Society of Scotland as to the extent to which and the basis upon which the input of that Society should be taken as representative of the solicitors likely to be affected by that regime and as having the confidence of those solicitors.

 

2.Activities undertaken.  

 There was formerly a professional  requirement or at least an expectation  that the main work undertaken by  solicitors  was or would be  the provision of legal services.  In recent times, that requirement appears to have become very much more relaxed so that in  a recent case of insolvency, it transpired that the law firm in question had  substantial  undertakings in fund management and letting services  quite apart from the provision of legal services. Whether or not that structure had any causal connection to the insolvency of the business is perhaps a matter into which enquiry should be made with reference to the public documentation available including the insolvency practitioner’s report .  This is  particularly the case because of the significant number of substantial  Scottish  law firms which have either gone into insolvency or been acquired in circumstances of financial distress  by foreign entities in recent years – events which  were extremely rarer and exceptional up until about 10 years ago when the whole issue of Alternative Business Structures first  emerged in Scotland. While law practices cannot claim any dispensation against insolvency it is, nevertheless, a state which impacts upon a wide range of members of the public as well as the owners and employees who would be adversely affected by any business insolvency.  In law firms clients have entrusted their confidential information as well as their money  and their important papers and the insolvency process transfers those  monies and confidences and papers to an insolvency practitioner in whom the client has never reposed his trust and who is unlikely to deliver any papers or other items or provide any assistance until the insolvency process has been either completed or at least substantially so. There is therefore a public interest against the insolvent winding up of legal practices which is perhaps not the case with most other businesses.  For whatever reason, the uncontrolled insolvency of law firms, in Scotland at least, was a rarity prior to the moves towards ABS.   If the failure of these Scottish law firms has been attributable to their substantial undertakings of non-legal services then some  consideration should be given to the regulatory control of the activities undertaken by solicitors firms and the restriction of non legal services.

Recommendation.  The Review should seek to ascertain the amount of the loss sustained by the Scottish economy  including the reduction of tax receipts  during the past eight years as a result of solicitor firm  becoming the subject of acquisition by English and other foreign entities.  In order to minimise the occasions of insolvency in the legal industry consideration should be given to the restriction of services that might be provided by solicitors operating in the reserves areas.

 

 and also what has been  the effect upon the Scottish economy of the reduction of the Scottish owned legal services sector during the past 8  years and what might the effect  of the whole Scottish legal sector. The findings of such enquiries  might  instruct future regulation of the activities undertaken by solicitors firms.

 

3. Making Complaints.

  An obvious advantage of maintaining a complaints and discipline  system within the profession is that members of the profession are best placed to understand the factual backgrounds of complaints and the extent to which the dissatisfaction of a client is due to adverse legal circumstances or to the actings of the client himself  or  of other persons  and to what  extent it is due to shortcomings on  the part of the practitioner. The corresponding disadvantage is that members of the profession may either be, or be seen to be, unduly sympathetic towards each other.  The latter disadvantage might be, or be seen to be, exacerbated by the fact that members of the legal profession in Scotland are not only  members of the same profession but are quite likely either to know each other or, at least, to know of each other. Against that, in previous years when complaints and discipline were  maintained  within the profession, it was certainly not seen by the profession to be unduly lenient. Rather, there was seen to be an element of severity in the application of discipline arising from, among other causes,  a perceived  desire to demonstrate to the public the maintenance of the very highest of standards. On more than one occasion there was successful resort to the courts to remedy the excesses of the discipline inflicted by the professional body upon its own members,  not that any remedy, judicial or otherwise, can undo the damage done in these circumstances.  There is always, of course,  an external complaints system available to the public in as much as solicitors are always liable in damages  for breach of contract in respect of failure to deliver legal services of a reasonable standard.  That is likely to be seen as a much less generous provision for dissatisfied clients than the current arrangements which enable clients, dissatisfied otherwise, a cost and  risk-free opportunity to make a complaint which might well result in a financial payout whether or not the complaint was justified. The solicitor, on the other hand, has no realistic appeal against what  he might see to be an unjustified award because of the potentially ruinous expense of taking it to the Inner House for determination. The complaining client is subject to no such risk.  Indeed, there are as yet unconfirmed reports of clients writing spurious letters direct to the Solicitors Disciplined tribunal (SDT) seeking compensation payments from solicitors. The Review might therefore consider obtaining information from SLCC and the Law Society and the SDT as to the frequency and extent of spurious complaints  containing statements which can be proven to be untruthful  and the extent to which there is any disincentive for the making of such complaints. Under the current regime, members solicitors are  losers as soon as a complaint is made whether or not there  is any justification in it. This is because of the immediate resources which have to be applied in order to deal with the requirements of the Scottish Legal Complaints Commission.  As a result, many solicitors are inclined to offer a  payment in order to avoid proceedings which fall to be determined outwith the profession and against the outcome of which there is no realistic  right of appeal. It cannot be in the wider interests of the public that the legal profession is burdened  in this way because, eventually, these losses and expenses must find a way through to the public whose instructions are the main or only source of  finance for  the legal profession. There is one other element which perhaps distinguishes the legal profession from other service providers.  Every  principal solicitor contributes to the Guarantee Fund /Client Protection Fund so that clients are absolutely protected against theft or other dishonest activity by solicitors or their staff. Also, every principal solicitor contributes to a professional indemnity fund which compensates clients for loss occasioned by the professional negligence of solicitors. These funds operate not only to compensate clients of solicitors but the operate also to supervise and support solicitors in the development of practices which minimise the risks incurred by these funds.

Also, when the question arose of setting up a complaints body outwith the Law Society  the then Scottish government set a number of targets to be met by the Law Society over a five-year period in order to justify the retention by the Law Society of complaint handling. The Law Society met or exceeded all of these targets and there is no reason to suppose that the profession is unable to operate a fair and efficient complaints system.

 

 Also, a significant disadvantage of operating a complaints and discipline system out with the profession is that this calls for the creation and maintenance of a highly specialised, independent agency. It is for the Review to study the circumstances and make its determination but SLAS  members are of the view that the external agency, the Scottish Legal Complaints Commission. has, since its inception under the  Legal Aid and Legal Profession (Scotland) Act 2007  significantly changed its character without any legislative authority. While the SLCC had the character initially of an independent arbiter in disputes between solicitors and  complaining clients it appears to have acquired a character more of a consumers’ champion which, for example, publishes statistics of the amount of money recovered from solicitors

Recommendation-   Consideration be given to the operation of a clients complaints system  to be operated within the Law Society  to include  lay input to the determination of complaints that cannot be resolved at  reporter level and also a sift to identify complaints appropriate for  the requirement of a means tested  deposit refundable according to the determination of the complaint.

 

4. Structure of Providers.

This Society, together with the Law Society of Scotland until about 2007 and together also with the majority of western legal systems has opposed the authorisation of Alternative Business Structures (ABS) since the concept was first mooted from about 2004.  A separate notice setting out these objections is attached to this document as Appendix 1.

Recommendations – those provisions of the  Legal Services   (Scotland) act 2010 which authorise the institution of Alternative Business Structures (ABS) in Scotland which  have never come into operation  should now be repealed so that the legal system of Scotland is maintained in line with the majority of western legal systems and the ownership and control of the provision of legal services to the public is retained within the legal profession.

Further, the Review should enquire of the Law Society of Scotland

  1. How the system of Alternative Business Structures proposed in the 2010 Act can be  reconciled with the principle of the retention of the control of solicitor  firms by solicitors or how any  alternative future such structure  might be so reconciled.
  2.  To explain how the circumstances narrated in Appendix 1 paragraph 4 can be reconciled with  the objective of the Review to make recommendations which command the confidence of the solicitors profession  and  with the principle that public regulation should not be promoted in order to advance private interests.

5. Entity Regulation.

 From the outset f its existence SLAS has seen the solicitor profession as consisting of individual professionals each with their own responsibility to their clients but with supervening responsibility to the Courts and the rule of law. It would follow from that view that regulation should also focus upon the individual solicitor rather than upon the entities or partnerships in which they practise.  At the same time it is recognised that many, if not most solicitors regard themselves as members of individual firms more so than as members of the Law Society or of SLAS or even of the solicitor profession.   A  firm may employ many solicitors who work to strict methods and targets set by the firm and who have little contact with clients and of whom the firm has no expectations as to control of money laundering  procedures and such like.  It is attractive in such cases to focus regulation upon the firm as a whole rather than upon individual solicitors who have little opportunity to control their compliance or otherwise with regulations. The SLAS  view is that the trend away from individual professionalism is regrettable and contrary to the public interest in a recognisable profession of responsible individual solicitors.  However, rather than move the focus from individual to entity regulation, consideration should be given to a  focus upon the  individual solicitors who are responsible for the proper delivery of legal services, namely, the equity owning partners in the firm who are accustomed to the joint and several liability which such partnership entails.   These are the practitioners who  stand to benefit from economising  on compliance with regulatory requirements. While these partners have decided to entrust their anti-money laundering to one individual partner or even to a non partner practice manager, nevertheless, it remains the professional responsibility of each such partner to ensure that their services, including the services of their employees, solicitor and otherwise,  are properly compliant with the relevant regulations.  Other solicitors in the firm might not be responsible for breaches of regulations carried on the instructions of the equity partners but would remain liable for their own individual actions if these were carried out in the absence of or against the instructions of the equity partners. At the same time SLAS has to recognise that it has little experience in the drawing of regulatory procedures but offers these comments as their perceived solution to the dilemma of maintaining professional responsibility in the modern context of a firm dominated profession.

Recommendation – The regulation of solicitors be maintained on an individual basis and with equity owning partners in firms having joint and several responsibility for compliance with regulations and with employed solicitors having responsibility for their own actions only.

 

6. Legal Education and Training.    

SLAS, since its formation in 1884, has been concerned with the provision of legal education and training. An early objective of the voluntary Society was the formation of a compulsory body so that the proper education and training of future solicitors could be assured. In due course, that compulsory body, the Law Society of Scotland was created by statute with responsibility for legal education and training. However, the responsibility for legal education appears to have been delegated to the university sector and the responsibility for practical  training to a combination of the universities and various other bodies. SLAS is currently involved in the delivery of the post university, compulsory programme undertaken by trainee solicitors. Comparisons are sometimes made with the training of medical students. Whereas medical students are likely to deal with cadavers during the first term and to meet living patients before the end of the first year of study, law students have no requirement to meet clients until after the completion of a three or four year university degree followed by a one-year post university course i.e. until five years after the commencement of their studies. This can lead to a disconnection between the study and practice of law. For example, in recent years, law students have emerged from the University environment in the expectation of finding that legal services are provided both by solicitors and by non--solicitors under the 2010 Act when this has not been the case. There is, however, a major difficulty in the comparison with medical students. While the latter are trained at public expense through the National Health Service and can routinely be allocated for training purposes to NHS primary and secondary facilities, the parallel legal services are provided by individual practice units and there is no parallel facility for such placement. Individual students and practice units are, of course, free to make their own individual arrangements for placement and training but it is difficult to envisage how such a system could be made the subject of formal regulation. In order to achieve equivalence with the education and training of medical students, their may be an argument for public funding for a system of placement to be associated with the university degree and made subject to supervision by the Law Society. That, however, would meet with the further difficulty that, unlike medical students, most law students do not in fact go on to practise in the profession. There is certainly no evidence of any appetite within the SLAS membership for the introduction of such a system of education and training. Given these difficulties and the absence of any prospect of public funding it is difficult to propose a system of education and training that will be satisfactory in all respects. SLAS is broadly satisfied that there is a compulsory system and that, by and large, solicitors enter the profession in a reasonably fit condition in which the public may have confidence. Undoubtedly, that education and training could be improved upon but that appears to be a matter for the legal profession rather than for further external regulation.

 

Appendix 1

 

ABS Summary Note March 2018

 

1.            Professional Independence

Alternative Business Structures (ABS) are inevitably and inherently inconsistent with professional independence.  This is the position of the European jurisdictions as expressed by CCBE (the Council of the European Bars) *(see Code of Conduct below) and this was also the finding of the judiciary in Australia in litigation some years ago in which it was held that the external funding of a class action was inconsistent with professional independence and therefore with proper legal representation.  The Legal Services (Scotland) Act 2010 (the 2010 Act) dilutes the independence of the legal profession with issues of external money and investment. This contradicts the underlying reason for which the legal profession exists, namely, in the public interest.

 

2.            Consequences of Deregulation -m Diminution of Scots law and jurisdiction.

                The proposed deregulation of legal practices was initiated in England prior to the disappearance of the Scottish independent banking sector following similar deregulation in the financial services market and such deregulation should not now be considered for the Scottish legal services market.  However, there is no evidence that this has ever been investigated.  How many Scottish firms have  disappeared since the 2010 act authorised their acquisition by English and other foreign firms?  What has been the loss to the Scottish economy from the incursion of English and other foreign ownership ?  What has been the consequent decrease in Scottish tax receipts ?   What changes in regulation have taken place that have enabled sale  of Scottish law firms to foreign purchasers?           It seems unwise to embark on a new era of regulation without exploring fully the adverse consequences which may have emanated from the current regime of authorising the sale of Scottish solicitor firms to foreign law firms.   It would be particularly unwise to embark upon a new regime which, by making the ownership of Scottish law firms open to general commerce, is likely to bring about the disappearance of even more  Scottish firms, the reduction of the Scottish  legal services economy and tax receipts and the diminishing operation of Scots law in  Scotland and the jurisdiction  of English and other foreign courts into  Scotland.

That diminution is likely to arise from the convenience of non-Scottish owners who have interests in other, possibly larger,  jurisdictions, in having the same contractual terms in all the jurisdictions in which they have interests.  As these contractual terms specify the legal system to be applied in cases of dispute and therefore the courts in which such disputes shall be determined this is likely to reduce and even exclude  reference to the Scottish courts the business will pass out of Scotland and out of the Scottish economy.  There will be a reduction of Scottish legal skills for want of case work and Scots law will wither on the vine for want of the  development in the courts which is necessary to keep it up to date with a changing world.

 

3.            Consumer Detriment

                ABS is likely to bring about serious consumer detriment.

 

                (a)          The ownership of legal practices by external capital is likely to increase the already unacceptable incidence of Scottish consumer contracts being subject to resolution in the English courts so that Scottish consumers have no practical means of raising or defending proceedings arising out of these contracts.   It is difficult enough to raise legal proceedings in Scotland but, in most cases, completely impracticable to do so at a distance in England or some other more remote territory. Instead of promoting this trend through ABS, we should be seeking ways to re-wind a trend which moves business and jurisdiction out of Scotland.

 

                (b)          The Guarantee Fund and the solicitors professional indemnity fund by virtue of which clients of Scottish solicitors are completely protected against dishonesty or negligence at the hands of the legal profession cannot possibly survive in their present form an extension to unknown categories of regulated professionals (including their staff) and wholly unknown external capital providers.  It is clear that the present joint and several liability undertaken by Scottish solicitors is based upon the training and ethics undertaken by the members of the profession and cannot possibly be extended to include persons whose training and ethics are unknown or uncertain.

 

                (c)           The English Experience. ABS has now been in operation in England and Wales for several years and it should be possible to gather some intelligence from the experience in that jurisdiction.  However, our own enquiry in this respect directed to the Law Society of England and Wales met with no acknowledgement or response and our more recent, similar enquiry to each of  the 52 local societies in England and Wales has met with only one acknowledgement by a law Society and one response by an ABS firm.  Our own observations tell us that one early development in England was the acquisition by a lorry transport company of a firm of barristers and the question as to how independent would be the representations of barristers from that firm when acting for driver employees of the transport company. However, that particular structure dissolved after a short period. Other observations have included a number of insolvencies amongst ABS entities and, as argued above (at Activities undertaken. there is therefore a public interest against the insolvent winding up of legal practices which is perhaps not the case with most other businesses.            

 

4.            Private Interests in ABS.

It is fundamental that public general legislation should not be created in order to promote the private financial interests of individual persons including, in particular private individual persons who occupy public positions of influence in relation to that legislation. The whole of the legal profession including the Law Society of Scotland was diametrically opposed to the institution of ABS from the outset in the early 2000s until 2007 when the Law Society reversed its policy without the  support of the generality of the profession and certainly without the support of the RW solicitors  but with the support of the equity partners of certain large firms at least one of which was subject to a £6m plus overdraft and whose equity owners stood not to recover their capital on retirement but also stood to benefit from a significant inflow of funds in the event of the authorisation of ABS. Despite these circumstances being public knowledge, no enquiry appears to have been made as to whether the proposed public legislation has been influenced unduly by private interests.  This issue was brought into greater focus when it was recently disclosed that, during 2015 when the Law Society of Scotland addressed to the Scottish Government a paper entitled The Case for Change in support of ABS, the then President of the Law Society was an equity owner of an old established law firm which was then in dire financial straights leading to its subsequent insolvent administration and sale   but without the benefit of the ABS which the Law Society was at the same time  diligently pursuing.  In those circumstances, any support by the Law Society for the constitution of ABS in Scotland   poses a question over the motivation for that support.   That question had also been posed previously by events in 2010 when some thousands of RW solicitors called for an Extraordinary General Meeting of the Law Society in order to register disapproval of ABS and to call upon their professional body to represent that disapproval. The Law Society duly convened the EGM but, when the President of the Society took the chair as he was entitled to do in terms of the constitution he proceeded to frustrate the objective of the meeting by refusing to take a vote and thereby to disenfranchised thousands of members of the Society.  The remit of the review includes ensuring that the regulatory framework retains the confidence of the profession and the above circumstances should lead the Review to ask the Law Society as the main proponent of ABS how the above actings of the Law Society have the confidence of the profession, particularly of those solicitors who stand to be affected by the new regulation .

 

5.            Legislative competence.

The Scotland Act reserves the regulation of restrictive practices to Westminster and there is no exception in relation to the provision of legal services outwith the legal profession, such as by non-solicitor owned LLSPs, will writers and Confirmation agents.

 

6.Control of Legal Practices.

The Law Society of Scotland in general meeting has endorsed the principle that majority ownership and control of legal practices should remain with solicitors but the Council of the Law Society has supported the 2010 Act ABS structure which does not require majority ownership or control of legal practices to remain in the hands of solicitors.  In fact, as we understand the terms of the 2010 Act, an ABS legal services provider might consist of up to 49% of artificial persons such as a registered company with limited liability or a bank or other investment company and 51%  natural persons who must be registered professionals, not necessarily solicitors.  There must, however, be at least one solicitor within the entity. Without a regulatory regime to make sense of these provisions it is difficult to envisage just what sort of provider of legal services is likely to, or might,  emerge but it is very easy to envisage an entity which would not be controlled by solicitors. If such entities are to be in control of clients’ monies or clients confidential information  then much of the purpose of having a legal profession would appear to be defeated.

7. The analogy with the banking sector.   After  many decades and even centuries of nurturing a strong and internationally respected Scottish banking system, the regulation of the activities undertaken by Scottish banks was relaxed in the late 20th century followed in the early 21st-century by the collapse and disappearance of the whole  Scottish banking sector. That is a circumstance which might be regarded as counter to any proposal to open the ownership and control of the provision of legal services to the commercial market..

*CODE OF CONDUCT FOR EUROPEAN LAWYERS

2.1          Independence

2.1.1      The many duties to which a lawyer is subject require the lawyer’s absolute independence, free from all other influence, especially such as may arise from his or her personal interests or external pressure.  Such independence is as necessary to trust in the process of justice as the impartiality of the judge.  A lawyer must therefore avoid any impairment of his or her independence and be careful not to compromise his or her professional standards in order to please the client, the court or third parties. …..

2.3          Confidentiality

………………….The lawyer’s obligation of confidentiality serves the interest of the administration of justice as well as the interest of the client.  It is therefore entitled to special protection by the State.

 

M Sheridan

Secretary

 

Footnote. When interest emerged in the external ownership of legal practices, a similar interest in the commercial ownership of GP services emerged also.  However, the Public Health etc (Scotland) Bill was hastily amended effectively making it impossible for commercial companies to be involved in operating doctors’ practices in Scotland.  Instead, health boards will only be able to enter into contracts with individual GPs or with partnerships of qualified health professionals including at least one qualified doctor.  The question arises as to whether the provision of access to justice is more closely to be equated with the provision of public health or with the marketing of consumer products.  The as yet inoperative provisions of the 2010 Act  point in the direction of the latter.

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Press Releases Mon, 26 Mar 2018 12:16:41 +0100
<![CDATA[Alternative Business Structures (ABS)]]> http://www.scottishlawagents.org.uk/news/alternative-business-structures-abs /node/3023 /node/3023#comments The link to the Independent Review of Legal Services in Scotland is shown below this paragraph however, in the short time available (only until 31 March 2018) it is probably not practicable to address the whole of the review enquiry. The crucial issue is Alternative Business Structures (ABS) and you should write direct to the Independent Review into Scottish Legal Services, GW 10, St Andrew's House, Regent Road, Edinburgh EH1 3DG with your own views as to whether or not Scottish legal firms should be made saleable on the commercial market.

http://www.gov.scot/About/Review/Regulation-Legal-Services

Since time immemorial the solicitors’ profession in Scotland has been vigourously independent and that independence was maintained as a matter of course by the regulatory body, the Law Society of Scotland, from its creation in 1949 that independence was protected by various rules including the prohibition of the sharing of fees with non--solicitors and even the prohibition of sharing front doors with non--solicitors.

It was therefore only to be expected that, when the Clementi proposals were first mooted in England and Wales in 2004, that these would be rejected out of hand in Scotland, as they were, under the leadership of the Law Society of Scotland. However, unbeknown to the profession at large and the general public in Scotland, other circumstances where in play. Around 2008, a number of the larger firms in Scotland were confronted with balance sheet problems which threatened the recovery by many of the equity partners of their capital. Realisation dawned that, by turning the law firms into saleable commodities via ABS, these partners would receive their capital and the law firms themselves could spend the rest of their existences servicing the investors.

Then, in 2008, the Law Society of Scotland changed its policy and came out in favour of ABS in Scotland. This was so unexpected that much of the legal profession was caught sleeping on the job and the principle of ABS was accepted at the Law Society AGM in 2008. Thereafter, when this development dawned on the profession, fierce opposition against ABS arose around Scotland. An EGM was convened at the Law Society at which several thousand votes against ABS were raised. However, the then President of the Law Society solved the problem of democracy by dint of refusing to take a vote, despite having convened the EGM at the request of the membership, in terms of the constitution.

Eventually, a form of ABS was passed in 2010 by the Scottish parliament but, in such terms that it was impossible to frame coherent regulations to bring the legislation into effect. Now,  the Scottish government has convened a consultation directed at a very limited range of correspondents and in terms clearly predicated upon an outcome in favour of ABS in Scotland. Sadly, any future authorisation of ABS in Scotland shall be too late to save the lage Scottish firms referred to above most of which have now been taken over by non-Scottish firms.. It is not clear what is now the rationale for ABS in Scotland. It was interesting to note, however, that the President of the Law Society of Scotland in June 2015 when the Law Society was promoting ABS was, himself, the proprietor of a law firm which was in serious financial difficulty and has now gone into administration.

The Scottish Law Agents Society has opposed ABS consistently since it awoketo the change in Law Society policy which took place in 2008 and continues that opposition to this day. The Scottish Law Agents Society, unsurprisingly, has not been asked for a view in the current consultation. It Is unclear whether any enquiry has been made around England and Wales as to the Consequences of ABS which was authorised in England and Wales in Terms of the Legal Services Act 2007.

At the last minute, however, a sort of last chance saloon has opened and the Independent Review has issued a general invitation to the public to submit evidence to the review. The Scottish Law Agents Society recommends that the public accepts that invitation and explains to the Independent Review that ABS is a huge mistake which threatens the integrity of the Scottish legal system as a vital element in the identity of the Scottish nation.

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General Mon, 12 Mar 2018 14:33:41 +0000
<![CDATA[General Meeting 6th March 2018 from 5.30pm at the Royal Faculty of Procurators in Glasgow ]]> http://www.scottishlawagents.org.uk/news/general-meeting-6th-march-2018-530pm-royal-faculty-procurators-glasgow /node/3022 /node/3022#comments General Meeting 6th March 2018 from 5.30pm at the Royal Faculty of Procurators in Glasgow 

 This is to confirm that the above meeting will be called as arranged.  Most travel facilities appear to be back in place and we have received a very helpful communication from the Law Society Executive which enables the scope of the meeting to be foreshortened significantly.  All members of the Law Society of Scotland and all members of the Scottish Law Agents Society are invited to this meeting.  The agenda can be found at http://www.scottishlawagents.org/news/general-meeting-6th-march-2018-530...

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Press Releases Mon, 05 Mar 2018 14:52:26 +0000
<![CDATA[SLAS OPEN PROXY FORM - 6th March ]]> http://www.scottishlawagents.org.uk/news/slas-open-proxy-form-6th-march /node/3021 /node/3021#comments SCOTTISH LAW AGENTS SOCIETY

 

OPEN PROXY FOR THE GENERAL MEETING OF THE SCOTTISH LAW AGENTS SOCIETY ON 6TH March 2018

 

I, (NAME -BLOCK CAPITALS) ……………………………………………………………

 

(Firm etc)………………………………………………………

 

(Address)………………………………………………………………………

 

A Member of the Scottish Law Agents Society or of the Law Society of Scotland, hereby appoint:

 

*MICHAEL SHERIDAN of Glasgow, secretary to the Scottish Law Agents Society whom failing FIONA DALTON of Glasgow, President of the Scottish Law Agents Society who are both members of the Law Society of Scotland

 

*OR (Name)……………………………………………… who is a member of the Scottish Law Agents Society of (Place of business)………………………………….

 

* Delete as applicable

 

 to be my proxy at the General Meeting of the Scottish Law Agents Society of Scotland to be held in terms of the Constitution thereof on 6th March 2018 at the Royal Faculty of Procurators in Glasgow from 5.30 pm on that date.

 

I grant an Open Proxy to the above named Member to vote on my behalf on any motions and any amendments to motions and any other business at the said General Meeting  in any manner he or she thinks fit.

 

Signed: …………………………………………………………………………………

 

DATE: …………………………………………………………………………………

 

NB  Please complete and return this document to The Secretary, Scottish Law Agents Society, 166 Buchanan Street Glasgow G1 2LW      DX GW 266 Glasgow 

LP5 Glasgow 7 Please do not fax or email. 

You may amend or withdraw this proxy at any time or otherwise advise your voting wishes all by email to secretary@slas.co.uk

The secretary will endeavour to keep you updated by means of our website at www.slas.co.uk as to the issues facing the profession and the policy thereon of the SLAS Council. This policy will take into account the input received from members such as yourself. Please copy this document to any other solicitors who may wish to be similarly represented.

You should keep a copy of this document for your own records.

 

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General Wed, 28 Feb 2018 13:25:42 +0000
<![CDATA[Maggie Scanlan - A Memorial Party ]]> http://www.scottishlawagents.org.uk/news/maggie-scanlan-memorial-party /node/3020 /node/3020#comments Maggie Scanlan – A Memorial Party

One thing that Maggie loved was a good party and preferably with a sing song. Some of her friends have now booked the Corinthian on Ingram Street in Glasgow for Friday 9th March 2018 from 7pm to share stories and recollections of Maggie over some good food and wine.

The cost is £40 per person for a three course meal.

If you can join this occasion then please reply to Clair McLachlan at  cm@russellsgm.co.uk and please make payment no later than Monday 26th February. Payment can be made by cheque to Sheridans, 166 Buchanan Street, Glasgow, G1 2LW, DX GW266, LP 5 Glasgow 7 or direct into the bank account shown below.

 

Sheridans

Bank of Scotland

80-54-01

00810255

REF: Scanlan Memorial Dinner.

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General Fri, 16 Feb 2018 13:38:38 +0000
<![CDATA[Notice of General Meeting ]]> http://www.scottishlawagents.org.uk/news/notice-general-meeting /node/3018 /node/3018#comments NOTICE OF GENERAL MEETING 

When?: Tuesday 6th March 2018, 5.30pm 

Where?: Royal Faculty of Procurators in Glasgow, 12 Nelson Mandela Place, Glasgow, G2 1BT

OPEN TO NON SLAS MEMBERS 

The Agenda can be found at http://www.scottishlawagents.org/news/general-meeting-6th-march-2018-530...

For anyone who cannot attend and wishes to fill in an Open Proxy Form, please contact secretary@slas.co.uk 

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Press Releases Mon, 12 Feb 2018 10:49:59 +0000
<![CDATA[General Meeting 6th March 2018 5.30pm - Agenda ]]> http://www.scottishlawagents.org.uk/news/general-meeting-6th-march-2018-530pm-agenda /node/3017 /node/3017#comments Notice of General Meeting 6th March 2018 

When?: Tuesday 6th March 2018 5.30pm 

Where?: Royal Faculty of Procurators in Glasgow, 12 Nelson Mandela Place, Glasgow, G2 1BT 

OPEN TO NON SLAS MEMBERS 

 AGENDA

 

  1. Attendance and apologies

 

  1. Introduction by the President of the Scottish Law Agents Society

 

  1. Motion This meeting calls upon the Council of the Scottish Law Agents Society to appoint a suitable agent to move the next AGM of the Law Society of Scotland to call upon the Council of the Law Society of Scotland :

3.1   to make inquiry and report to the membership of the Society as to the number and proportion of solicitors’ practices in Scotland which are owned by entities situated outwith Scotland

3.2   to make inquiry and report to the membership of that Society as to the number and proportion of Scottish solicitors are engaged as partners or employees or directors or otherwise by entities situated out with Scotland.

3.3   To intimate to the current Independent Review of the Regulation of Legal Services that this meeting opposes the authorisation of the ownership of legal practices by persons other than solicitors both (a) in general principle and (b) as proposed by the Legal Services (Scotland) Act 2010

3.4   To make inquiry and report to the membership of the Society as to the costs now incurred and the costs likely to be incurred by members of the Society as a result of the current litigations between the Law Society of Scotland and the Scottish Legal complaints Commission by virtue of (a) the representation instructed by the Law Society of Scotland and (b) the representation instructed by the Scottish Legal Complaints Commission.

3.5   To make inquiry and report to the membership as to the perceived benefits to (a) the solicitors’ profession and (b) the general public of Scotland of those litigations.

3.6   To inquire of the Keeper of the Registers of Scotland as to whether the operation of the Land register etc (Scotland) Act 2012 since 12th December 2014 has involved the exclusion from registration of any rights of property that had been previously recorded in the Register of Sasines or registered in he Land register of Scotland

3.7   To request the Keeper of the Registers of Scotland to make inquiry and set out a schedule of such rights which have been excluded from registration in terms of 3.7 above showing in each case the name of the respective registration county and the nature f the right so excluded.

3.8   To make enquiry and report as to what proportion of adverse accounts inspection reports in terms of Practice Rule 6.11 would  be avoided if balances of less than (i) - £50.00 and separately, (ii) - £100.00, were ignored as de minimus.

 

  1. Motion:  This meeting calls upon the Council of the Society to move the next AGM of the Law Society of Scotland to amend the Constitution of the Law Society of Scotland so that :

(a)   paragraph 14(5) shall read

“ It shall be competent at any General Meeting to demand a poll or to vote by proxy”

And (b) paragraph 14 (10) shall read

“Where a resolution is proposed for the amendment of this Constitution, it shall, in respect that resolution, not be competent to vote in advance of or at the  relevant General Meeting in terms of Article 14(1}.”

 

  1.  Any Other Competent Business

 

 

Note:  1. Voting will be by poll at the meeting. Proxy votes will be included if called for by two members of the Society present at the meeting and if authorised by the chair but only where the proxy has been delivered to the secretary of the Society not less than 48 hours prior to the commencement of the meeting and only where the proxy is a member of the Society.

 

2.This meeting is open to all members of the Scottish Law Agents Society who apply for registration on or before close of business on 28th February 2017 and also to all Scottish solicitors whose applications for registration have been received on or before that date and granted prior to the commencement of the meeting. Application may only be made in writing by email to secretary@slas.co.uk, by fax to 0141 353 3819 or by postal or other delivery to Scottish Law Agents Society 166 Buchanan Street Glasgow G1 2LW.

 

3. The Council of the Scottish Law Agents Society calls this meeting subject to the condition that, in the event of insufficient registrations having been received by 28th February 2018, the meeting may be cancelled.  This is out of consideration to those members and others who might otherwise travel to a meeting which will serve no purpose and to avoid unnecessary inconvenience to the members and officials of both Societies. The sufficiency or otherwise shall be determined at the discretion of the Council of the Scottish Law Agents Society.

 

 

 

 

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General Mon, 12 Feb 2018 10:46:35 +0000
<![CDATA[New Law Society Consultation on Change to Conflict of Interest Rules ]]> http://www.scottishlawagents.org.uk/news/new-law-society-consultation-change-conflict-interest-rules /node/3015 /node/3015#comments We would ask members to note that the Law Society of Scotland announced a consultation on proposed changes to the Conflict of Interest Rules. This was announced on 19th January 2018 and a response is due by the 16th of February 2018.

When such a short consultation period is proposed, one has to doubt whether there is any serious intention to receive a response.  Nevertheless, if members would wish SLAS to mention any particular matters in response to this consultation, then please advise the Secretary by email at Secretary@slas.co.uk.

Details of the proposed changes can be found within the consultation papers found on the Law Society’s website at https://www.lawscot.org.uk/media/359481/consultationpapersjan18.pdf

Members should consider these papers and ensure to submit a response before the 16th of February at conflictofinterestconsult@lawscot.org.uk

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Press Releases Thu, 08 Feb 2018 10:40:48 +0000
<![CDATA[Urgent Notice ]]> http://www.scottishlawagents.org.uk/news/urgent-notice /node/3014 /node/3014#comments We were recently informed of the Special General Meeting of the Law Society of Scotland to be held at 5.30pm on Thursday 25 January at Law Society of Scotland Atria One, 144 Edinburgh EH3 8EX.

We were informed also that electronic voting on two motions at that meeting would be open from 15th to 24 January 2018. However, from 15th to 18th January there was no information available as to what would be the relative motions or as to how to vote on them. Votes may be cast also in person at the meeting.

Then, shortly after 9 AM on 18th January we received an email with one link to the relevant motions and another link to access the electronic voting system.

When we followed the first link this led to the proposal that solicitors should be required to report upon suspicious activities of other solicitors (snoopers’ charter). There were, however, no voting arrangements available through the second link.

During the course of the morning of 18th January, however, these details changed. The first link became a link to the agenda for the meeting and the second link became an effective link to the voting system.

From my own inspection of the details of the motions, these appear now to be anodyne requirements to bring money laundering regulations into our practice rules. I do not now intend to register any vote

However, we are aware that there are moves afoot to bring in the snooper's charter referred to above and members are urgently advised to satisfy themselves as to what is happening at the SGM on 25th January 2018 and also as to what is going to happen at the Law Society AGM later this year.

Members are requested also to advise us of any difficulties they may encounter either in accessing relevant information or in casting their votes

 

Secretary

18th January 2018

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General Mon, 22 Jan 2018 15:47:31 +0000
<![CDATA[ LSS SGM - 25th January 2018]]> http://www.scottishlawagents.org.uk/news/lss-sgm-25th-january-2018 /node/3013 /node/3013#comments STOP PRESS  LSS  SGM

25TH January 2018

 

The SGM agenda will be sent out this Wednesday with the online electronic voting opening at noon that day till the following Wednesday. There are two motions on the agenda. The first relates to changes in LSS  incidental financial business rules due to a new EU insurance distribution directive. The second motion relates to changes in the practice rules in relation to complaints recording and the new anti money laundering regulations.

We are concerned that these new practice rules might impose a duty upon solicitors to snoop and report upon each other and that the terms of such a requirement may be inconsistent with confidentiality and privilege and mutual trust within the profession.

At present, we cannot confirm what precisely has to be voted upon but we shall update our website at www.slas.co.uk as soon as we reasonably can. We would ask members to watch for information and to be sure to lodge an electronic vote, if so advised. Otherwise, you may, at your own peril, simply ignore this development

MS 

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Press Releases Mon, 15 Jan 2018 13:00:17 +0000
<![CDATA[MARGARET SCANLAN OBE]]> http://www.scottishlawagents.org.uk/news/margaret-scanlan-obe /node/3012 /node/3012#comments We are sorry to record that Maggie Scanlan of Glasgow passed away on Saturday morning 6th January 2018 and we are sadly bereaved of a wonderful friend and colleague.  Many of us have fond memories of Maggie and many also have reason to remember her for her help and advice in the course of her professional career.

We will publish a tribute to Maggie in our next Gazette and if you have a reminiscence to include then please send this to secretary@slas.co.uk or otherwise to the secretary.

MS

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General Mon, 08 Jan 2018 10:58:54 +0000
<![CDATA[Scale Fees]]> http://www.scottishlawagents.org.uk/news/scale-fees /node/3011 /node/3011#comments Of course the return to scale fees is widely regarded among the legal profession and elsewhere as being unlikely, infeasible and unattractive. That leads us to consider the alternatives. If law firms are compelled to compete on prices, how do they go about it and does that operate in the public interest ?
Nowadays when prospective clients email around firms for quotations of conveyancing costs and when competition for ever cheaper deals is the way of the world in many if not all markets and when the term “bucket shop conveyancing” has come into use, practitioners may well be inclined to look for ways of reducing costs to clients. The following have been noticed.

1. Increased volume of clients.

If more clients are paying fees to the firm then it follows that the fees charged to individual clients may be reduced. If these reductions bring in even more clients then, of course, the fees can be reduced even more, and so on. One way to stimulate volume is to make special arrangements with estate agents and other agencies so that they will effectively push clients in your direction. The arrangement may well be that you will direct all your estate agency requirements to a particular agent and that agent, in turn, will direct his “solicitor free” business to yourself. Of course, some awkward customers might wish to instruct a particular solicitor, possibly one previously associated with that customer’s family or a solicitor of whom that customer has heard other people speak highly. Such reluctance can often be overcome by the inducement of “a special deal” or perhaps an insinuation that failure to use the appropriate solicitor might in some way hamper the business in hand. It is beyond the scope of this note to explore all the ways and means ofsuch other agencies. Such arrangements were previously regarded as bad form, under the description of touting but they are now practised quite openly and make obvious, good commercial sense, at least in the short term. On the longer term it may hand economic influence and a degree of control over the law firms to outside agencies and, of course, fashions might change again and this might be challenged as being unprofessional conduct. The question as to whether or not it is a fair way to run business does not appear to arise at lest currently. However, as Mr Fallon pointed out recently, what is all right one day might not be acceptable another day.

2. Systemisation of unqualified staff

Of course, certain essential elements of the conveyancing transaction constitute reserved work in terms of the Solicitors (Scotland) Act 1980 and can only be carried out, in consideration of fees, by qualified solicitors. However, if we have stimulated our clientele as suggested in 1 above then it follows that we might need more solicitors to carry out these reserved services. This would involve the payment of professional salaries. A way round this is to engage and train a number of non qualified persons and design a system of operation which enables a routine transaction to be carried out without the direct involvement of a solicitor but which will highlight any circumstances out of the ordinary which might require the attention of a solicitor who will, in any case, sign off any necessary papers required for the completion of the reserved work. While it might frustrate some clients not to meet and talk with a solicitor during the transaction, the lure of cheaper fees is likely to be sufficient compensation. The main downside here is the risk of allowing reserved work and work associated with reserved work to be carried out by persons who do not have a background of having studied and obtained relevant qualifications in the law and practice of property, contract and conveyancing. This risk affects the interests of the client and of the law practice and of the insurance which supports the whole legal profession and also of the public in having the property registers accurately updated.

3. Minimise the technical work

While it was once upon a time sufficient evidence of transfer of ownership for the seller to hand the purchaser a clod of earth taken from the property, in more recent times, since 1617, this operation has depended on relative paperwork. The study of the paperwork associated with a particular property and the drawing up of the document required to transfer its ownership can sometimes be quite complicated. What if a particular owner has died, gone mad or disappeared? What if there are conditions associated with the ownership? What if the keeper of the Land Register has made subtle changes in the Register affecting the ownership of that property but without telling the owner about these changes? What if the previous owner is or has been subject to insolvency so that his apparent legitimate ownership and therefore your client’s subsequent ownership might be subject to cancellation by the previous owner’s creditors? What if some previous owner of the property has carried out alterations to the property without local authority planning permission or building consent? Resolving these issues can be time consuming and involve the use of solicitors, two factors which conflict with the objective of turning over suitable volumes of fees. Not all, but some of these issues can be solved with the use of insurance indemnity. I have very little experience of this operation and what follow is largely guess work. The insurance indemnity appears to operate on the basis that so few transactions are actually turned belly up by these issues that the insurers find it worthwhile, in exchange for a regular inflow of premiums, to meet the financial consequences of such an event. This does not appear to me to address the uninsurable but significant adverse consequences of the collapse of a purchase/sale transaction, a circumstance which is likely to cause considerable inconvenience to those involved. However, like being shot by a terrorist, it is never likely to happen to any particular individual and so it should mostly be ok. A downside is that errors and omissions which have no immediate financial consequences may become embedded in the system and create risks for future clients and conveyancers.

4. Avoid Unnecessary Searches

Traditionally, when a client purchased a residential property, searches were required at two stages. In the first place, when the initial contract was entered and the purchaser is called upon to enter a legal obligation to purchase the property, it was thought to be necessary to carry out searches against the ownership title, the conditions of that title, the existence of mortgages and also the solvency of the owner. Such searches would provide early warning of any unpleasant incidents that would disturb the transaction if not uncovered until a later stage and which might then be resolved in time for that settlement. The second occasion on which such searches are required arises at the time of the settlement of the transaction and payment of the purchase price. Things might have changed since the searches were carried out at the contract stage and those initial searches now have to be updated. That means two lots of searches. The modern logic is, however, to borrow from methods observed to operate south of the border. What if we do not bother with an initial contract? Then we do not need initial searches. This results in an immediate reduction of transaction expenses. This also means, unfortunately, that nobody can know until the very last minute whether the transaction is going to proceed or whether the searches might reveal something which either prevents or postpones the transaction but, again, just as the assassin’s blade is unlikely to find any particular individual, we can assume that it will not happen in any particular transaction. This is a strategy which works well, most of the time, and which certainly reduces the cost of conveyancing.

The obvious downside is that something might go wrong at the last minute when the searches are carried out. The seller might transpire to be subject to an insolvency and have no legal power to sell the property or there may be a second mortgage over the property and no arrangements in hand for that mortgage to be discharged in time for the present transaction to settle, to mention only two of a very wide range of possibilities. If the Searches had been carried out at the outset then these matters might have been addressed in time for the transaction to proceed. Also, if the selling solicitor “Knew his client” then he would have known long in advance about such difficulties. There is also an important issue of public interest. The removal of the initial contract from the process potentially destabilises the market so that the practices of gazumping and gazundering which were traditionally always associated with the English market, now become possible in the Scottish market also. Apart from individual inconvenience, the effect of gazumping and gazundering is sometimes seen as causing fluctuations in property prices to gather momentum, leading to high values, high mortgages followed by negative equity and repossessions etc. The Scottish market, stabilised by the principal of contract was generally proof against these incidents. But these are matters of public interest and hardly relevant to the interests of an individual purchaser who seeks simply to have his conveyancing costs reduced to the minimum. The question is whether the solicitor has a duty to the public interest. What is the answer ?

I hope that it is clear that much of the foregoing is based on subjective opinion and is not intended to be dogmatic in any way. Other views are welcome for publication on this website.

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General Fri, 03 Nov 2017 16:27:07 +0000
<![CDATA[Christmas Party 2016 Recap]]> http://www.scottishlawagents.org.uk/news/christmas-party-2016-recap /node/3008 /node/3008#comments  

 

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General Fri, 04 Aug 2017 09:42:53 +0100
<![CDATA[THE GAZETTE: APOLOGY AND EXPLANATION]]> http://www.scottishlawagents.org.uk/news/gazette-apology-and-explanation /node/3007 /node/3007#comments THE GAZETTE: APOLOGY AND EXPLANATION

 

We have to apologise for the late production of the June 2017 Gazette number 85/2 which is now scheduled to land on your desks by mid August. The first practical reason for this is quite simply absence due to illness on the part of key personnel.  However, we have also had some difficult material to deal with.  This relates to changes taking place in operations at the Land Register.  While many members advise that they are having difficulty with the registration of titles and difficulties also with titles which have previously been registered or recorded and while we have addressed these difficulties to the Law Society and to the Keeper, the response which we have received is that there are no such difficulties. We hope that that may be the case but the information which we have received indicates otherwise.  In particular we are advised that some existing, registered or recorded rights in land have been excluded from the register and that  a widespread amendment of existing titles has been carried out by the Keeper without reference to the affected proprietors. Again this might not give rise to any problems because the changes may be required simply to keep up with adjustments to the Ordnance Survey map. At the same time, some members are uneasy in principle about this development.  We deal with this matter in the current Gazette but clearly there is an onus on our profession to scrutinise closely any possible threat to the reliability of land registration.

 

MS

 

 

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General Thu, 03 Aug 2017 16:05:16 +0100
<![CDATA[Alternative Business Structures in 2017]]> http://www.scottishlawagents.org.uk/news/alternative-business-structures-2017 /node/3006 /node/3006#comments Alternative Business Structures in 2017

The Scottish Law Agents Society was formed in 1884 as the first national, representative and regulatory body for Scottish solicitors. It was a voluntary convention formalised by a Royal Charter of Queen Victoria, which was amended by Charter of George V and then updated by Charter of Queen Elizabeth II. Its immediate mission in 1884 was the creation of a compulsory society as the best means of securing proper standards of education, training and professional practice within the profession. That objective was achieved in 1949 with the statutory creation of the Law Society of Scotland. Some discerning members of the profession have maintained the existence of the voluntary society in order to provide the profession with a forum for discussion and opinion outwith the statutory shadow which hangs over the compulsory body. The wisdom of doing so may have been demonstrated by the following developments.

A new business profile has been presented to the legal profession in which the ownership of law firms would no longer be restricted to qualified lawyers, but could be extended to other professional persons, such as accountants and surveyors and even be shared with commercial institutions such as banks and supermarkets. This would supposedly provide lawyers with opportunities of offering a wider range of services, securing business from the clients of these joint professional owners and of access to financial services and borrowing from institutional investment part-owners and the facility of providing legal services at locations more convenient to the customers, for example, at supermarkets. More immediately, it would provide any large or medium sized Scottish firms, who happened to be suffering from financial discomfort with an opportunity to secure future borrowing in exchange for part-ownership of their businesses, thus making cash available to pay the capital accounts of retiring or outgoing partners and leaving the ongoing profession to manage as best they could with their new, commercial bedfellows.

More immediately still, it would present the practising solicitor with a challenging conflict of interests between the client who seeks to minimise his legal expenses and the investor and shareholding owners who are legally entitled to seek the maximisation of the profits to be derived from the fees paid by that client. If a solicitor’s practice is owned substantially by a bank or is part of a joint enterprise with firms of accountants or surveyors or whatever then how can that solicitor possibly advise independently on financial matters, asset valuation or property valuation? If the client turns out to be let down by any of these auxiliary professional services, then is his or her solicitor necessarily going to advise the client at the earliest opportunity as to any damage occasioned by such defective professional services? Might there be seen to be a temptation to seek a resolution which avoids the exposure of these deficiencies? It would certainly be in the financial interests of the solicitor to do so.

These changes were duly authorised by the Legal Services (Scotland) Act 2010. but have not yet reached the high street or the attention of the public, because of the difficulty in the creation of a regulatory framework. At the same time, our own Society continues to challenge the wisdom of the proposed changes in the interests of both the solicitors’ profession and of the public which it serves.

While this new regime appeared to be unacceptable in principle when it was initially proposed around 2008/2010, at least, at that time, there was an element of support within the profession. That was mainly centred upon the large firms, some of whom had particular balance sheet situations which could have been solved by the implementation of the legislation and the partial sale of these practices to financial interests outwith the profession. That time has now passed. The firms in question have mainly ceased to exist or become subject to non Scottish ownership. It is now difficult to envisage where there may be any significant support within the legal profession for the new regime. Nevertheless, the profession’s own statutory body appears intent on bringing it about and the Scottish government has indicated all along that this is being done at the instance of the legal profession. The original legislation is at least partially out of date due to other changes which have taken place in the meantime. .Accordingly, amending legislation may be required. That shall be something for our Council and membership to scrutinise and decide whether or not to challenge.

One difficulty in sustaining such opposition lies in the fact that, since 2010, successive generations of law students have been instructed at university that ABS, having been authorised by statute in 2010, already forms part of the provision of Scottish legal services. It is perhaps of less significance to academic lawyers than it is to practitioners that particular legislation, although enacted, is not yet in effect. That may be a function of the extent to which the profession has abrogated in favour of the universities its responsibilities to train and educate the future profession. Nevertheless, things may not be so bad. I attach below items recently received from prospective solicitors which show that somebody must be doing something right at University.
MS

SOLICITOR’S PROFESSION —A TRAINEE’S COMMENT

The profession of solicitor commanded respect within wider society. Solicitors were educated at a time when the majority of the public was illiterate, hence the term writer, and would dedicate a large portion of their lives to learning. They were collegiate. They were professionals.

Being a solicitor is now so far from what it used to be I struggle to see it as a profession any longer.

The need to compete, though healthy to a point, is damaging the quality and respectability of the profession. It is becoming a provider of legal services at the mercy of consumers. Charging by the hour or charging a fixed price for a particular service was the norm. Now you are only likely to find this type of feeing in private client practices.

Due to the collegiate nature of the profession there was an unwritten rule that one would not charge less that a particular amount for a particular job. Ensuring that a fair price was paid for the service. This meant that each firm would try and distinguish itself by the quality of work, rather than the price. The good firms would thrive, the bad, fail. This would naturally drive the standards of the profession higher as the solicitor tried to be a better practitioner than his rivals.

This practice was seen as anti-competitive and damaging to the consumer. And so it stopped and solicitors started finding new and imaginative ways to attract business. One such method is tendering.

Tendering involves a law firm bidding to potentials clients for business. It offers the services of its solicitors and support staff for a lower amount than the competition. It never knows the amount bid by its competitors and must therefore bid lower than it thinks the contract is actually worth to increase the chance of being the successful bidder, securing the lucrative contract.

At the end of the contract period the firm must tender once more. And here is where the problems arises: to be successful it must either offer the same work for less money, more work for the same money, or more work for less money. Either way the firm must devalue the service it provides in order to secure business or risk losing it to the competition. This is fine in the short term, but each time the firm tenders the result is more work and less money. This inevitably leads to the reduction of expenditure in order to maintain a profit. The biggest expenditure in a law firm is the wage of its solicitors. So it must reduce either the level of wage for new solicitors or the number of solicitors. This is happening right now in Scotland. Firms are squeezing out senior and associate level solicitors and replacing them with paralegals and trainees. Why have ten solicitors in a team when ten paralegals can do the work and have one solicitor supervise and sign their work?

In the diploma we are taught to think of the benefit of providing value added services to large clients and to be commercially aware, looking after the business of our clients. This is normalising a behaviour that is eroding the profession of solicitor. We are being conditioned to think solicitors are just an extension of the client’s business—members of staff who just happen to know the law, rather than legal agents who use their knowledge of the law, their ability to think critically, and a high standard of professionalism to represent their client’s interest against all others. This is symptomatic of the devaluation of the profession. And the worst part is, we are told that young solicitors feel the old solicitors who are against innovation and modernisation are the greatest danger to the profession. If the above is the innovation and modernisation they strive for, then the greatest threat to the profession is the solicitors who have forgotten what it means to be a solicitor; a member of one of the oldest professions in the country and an officer of court, not a provider of legal services.

Another trainee wrote : "How do we reconcile the duties we have towards other members of the profession with the fact that we are increasingly competing with each other for work? The legal profession seems to have become a business rather than a profession so how can the ethics and values associated with the profession, particularly those associated with relationships with other members of the profession be maintained?"

MS

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General Fri, 23 Jun 2017 11:12:19 +0100
<![CDATA[SLAS Christmas Party with Lord Gill]]> http://www.scottishlawagents.org.uk/news/slas-christmas-party-lord-gill /node/3005 /node/3005#comments As now widely advertised, the SLAS Christmas Party will feature, as well as the second edition of the law agent's home companion with choral signing by the Glasgow Laulau choir singing acapella, a talk by Sheriff Alf Vannet and classic songs by Kathleen Burgess- a short delivery by Lord Gill on the subject of the separation of powers. By coincidence, that is the very topic of a case currently being argued before a full panel of 11 Justices at the Supreme Court at Westminster. We cannot take credit for having arranged that juxtaposition of events, or at least some of them. This will be held at the Royal Faculty in Glasgow from 5:30pm on Thursday 15th December 2016 and, if you wish to attend then please contact the Secretary, Michael Sheridan by email at secretary@slas.co.uk or by telephone on 0141 332 3536. As the function includes hospitality, we require to close for bookings at 5pm on Monday 12th December 2016. Time is short and you should book your attendance now.

 

This event was duly delivered and is currently under construction as a prospective podcast.

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General Tue, 06 Dec 2016 16:52:38 +0000
<![CDATA[SLAS Christmas party 2016]]> http://www.scottishlawagents.org.uk/news/slas-christmas-party-2016 /node/3004 /node/3004#comments The Christmas party this year will be something completely different. We have so much talent on show that we are reluctant to let it all fade into memory. Instead we will present the programme as podcast which will be preserved for future presentation on our website and possibly beyond. The programme is shown in the attached brochure and, while this includes a contribution by the former Lord President, Lord Gill who is currently serving on the Supreme Court panel at Westminster, Lord Gill’s contribution will not be included in the podcast and the only opportunity to hear this will be by joining the live, studio audience at the Royal Faculty in Glasgow.

We had asked Lord Gill to address the question of the separation of the powers within the constitution before that issue was raised in the context of Brexit before the Supreme Court and, as a result, we are particularly interested to hear the comments of Lord Gill.

Members and guests attending the event will be invited to contribute to the podcastable outcome by responding, for example, to applause etc., prompts and by generally assisting the production of the programme. We shall convene a short rehearsal before the programme begins.

Sheriff Alf Vannet has delighted us in the past with his lively insight into the legal process and we have asked him on this occasion to address the long standing question as to who has the harder task and the greater intellect, the judge or the advocate – not that that is a guarantee as to where Sheriff Vannet’s remarks may take us on the night.

However, it is Christmas after all and we will include some classic Christmas and other music from the Finnish Glasgow Laulu Choir singing a cappella and from Kathleen Burgess who was trained at the now Royal Conservatoire of Glasgow.

The ticket price includes a finger buffet and refreshments and we hope that the Society’s membership will support the excellent value of this bold endeavour in large numbers.

Those interested in attending the event should have their applications with the Secretary by 5pm on Monday 12th December 2016.

This event was duly delivered and is currently under construction as a prospective podcast.

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Member News Mon, 21 Nov 2016 12:30:11 +0000
<![CDATA[Another Scam]]> http://www.scottishlawagents.org.uk/news/another-scam /node/3001 /node/3001#comments A member tells me today that he was due to settle a conveyancing sale transaction but the money did not arrive. It transpired that the money had been sent to received by and passed on from the wrong bank. It further transpired that, before settlement, an email had been issued by an interloper, bearing to have been sent by the selling solicitor and instructing the purchasing solicitor to direct the funds to a particular (wrong) bank. I understand that the interloping email was subject to spelling and grammatical deficiencies. Perhaps the lesson is that we cannot trust anything communicated by email and where financial transmissions are involved we always have to obtain confirmation. In this particular case, however, i gather that the interloping email included a apparent mandate by the selling client, set out on headed note paper.

Secretary

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General Wed, 15 Jun 2016 16:25:42 +0100
<![CDATA[SLAS AGM calling]]> http://www.scottishlawagents.org.uk/news/slas-agm-calling /node/3000 /node/3000#comments This is to remind members that the AGM takes place at 5:30pm on Thursday 16th June 2016 at the Royal Faculty of Procurators in Glasgow. If you propose to attend this meeting please telephone the Secretary beforehand 0141 332 3536 so that appropriate hospitality can be arranged.

Secretary 

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Press Releases Wed, 15 Jun 2016 16:20:21 +0100
<![CDATA[Scottish Law Agents Society extended meeting in the Royal Hotel, Oban ]]> http://www.scottishlawagents.org.uk/news/scottish-law-agents-society-extended-meeting-royal-hotel-oban /node/2996 /node/2996#comments SCOTTISH LAW AGENTS' SOCIETY Scottish Law Agents Society - Royal Hotel, Oban 18th February 2016 Agenda for Extended Meeting – from 10.30 AM

1. The regulation of solicitors. (Appendix A)*

Is the regulation of solicitors by a regulatory committee in which solicitors are excluded from the majority and from the chair and which is subject to the oversight of Scottish ministers consistent with the constitutional doctrine of the separation of powers or do these provisions enable parliament and the executive to have excessive control of the legal profession as part of the judicial function of the constitution?

2. Land Registration Problems. (Appendix B)*

Has the Keeper replaced the objective of the registration of landownership with the objective of the creation of a cadastral map of Scotland and, if so, does this prevent the registration of heritable rights and what is the legal basis for doing so.

3. Alternative Business Structures. (Appendix C)*

We are still in the strange position that the Scottish Parliament authorised the non solicitor ownership of legal practices about five years ago in the Legal Services (Scotland) Act 2010. At that time the change was driven mainly by a majority of the large Scottish firms, the policy of some of whom at least appeared to be driven by their own balance sheet considerations. The proposals have been stymied from the time being because the powers that be have been unable to promulgate appropriate regulations to meet legal requirements, as we predicted would be the case from the outset. New legislation is now planned to obviate these difficulties – on the basis that, if the law doesn’t work for us then we just write a new law.

4. Virtual SLAS Council. (Appendix D)*

A mechanism for the solicitors’ profession to consider and respond promptly to issues arising. When even litigation can be conducted on the internet a Society which cannot conduct business online may be subject to a fatal disadvantage.

*For full details see attached PDFs

Practicing sSolicitors and in particular solicitors in the Highlands and Islands area are invited to join the above meeting on giving at least 48 hours of their intention to do so. If you do not attend the meeting but have views or information relevant to the above topics or any suggestions as to what matters should properly be addressed by a solicitors’ representative body then please advise by email to secretary@slas.co.uk

M Sheridan,

Secretary

 

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General Wed, 03 Feb 2016 15:29:53 +0000
<![CDATA[SLAS Christmas Party 2015]]> http://www.scottishlawagents.org.uk/news/slas-christmas-party-2015 /node/2991 /node/2991#comments SLAS Christmas Party 2015

Glasgow Laulu Choir

Members are invited to join the SLAS Christmas party at the Royal Faculty of Procurators in Glasgow from 5.30pm on Thursday 17th December 2015. This is a chance to meet your colleagues in the relaxed atmosphere of the Faculty with suitable refreshments.

We shall be entertained by a presentation of classical Christmas songs by the Glasgow Laulu Choir singing a cappella.

There is no charge for admission but numbers are limted and it is essential that you register your attendance with the secretary by Friday 11th December 2015, email secretary@slas.co.uk

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General Mon, 07 Dec 2015 11:18:33 +0000
<![CDATA[Michael Scanlan]]> http://www.scottishlawagents.org.uk/news/michael-scanlan /node/2990 /node/2990#comments It is with great regret that we announce the death of our former President, Michael Scanlan, who passed away this afternoon 20th October 2015. Michael died peacefully in hosptal after an illness and his wife, Margaret, was with him at the time.

 

MS

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General Tue, 20 Oct 2015 16:17:33 +0100
<![CDATA[Report Fraud and Internet Crime]]> http://www.scottishlawagents.org.uk/news/report-fraud-and-internet-crime /node/2989 /node/2989#comments The Law Society of Scotland is interested in being made aware of email scams (and other similar issues) which are sent to members. Contact fincomp@lawscot.org.uk

 

This maintains their awareness of the issues affecting members and enables LSS to issue timely alerts where necessary.

 

However the firms which receive these can also report these directly on the Action Fraud website;

 

http://www.actionfraud.police.uk/report_fraud

 

Action Fraud is the UK's national fraud reporting centre run by the National Fraud Authority with support from partners such as the City of London Police. Email scams can be quickly reported by clicking on the Report Scams and Viruses button on the link provided and then sending the suspicious email to the City of London Police email address provided on the website.   

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General Tue, 20 Oct 2015 14:51:33 +0100