Wednesday, 21 April 2010
Law Society of Scotland SGM rejects ABS
0 comments Posted by JusticeforScotland at Wednesday, April 21, 2010
The Scottish Law Agents Society's motion opposing the external ownership of Scottish law firms ('Tesco Law' or ABS) has been approved at a Special General Meeting of the Law Society of Scotland (LSS) in Edinburgh this morning, reversing the pro-ABS policy of the LSS. A proposed 'ABS lite' amended motion by McGrigors was rejected by Scottish solicitors. 1,817 votes were cast against ABS, with 1,290 in favour.
Friday, 16 April 2010
Integrity safeguarded and due process of law respected at reconvened SGM
0 comments Posted by JusticeforScotland at Friday, April 16, 2010
The integrity and good reputation of the solicitor branch of Scotland's legal profession was safeguarded this morning when the reconvened Special General Meeting of the Law Society of Scotland (LSS) took place in Edinburgh.
Law Society SGM to meet at Sheraton Hotel in Edinburgh this morning
0 comments Posted by JusticeforScotland at Friday, April 16, 2010The adjourned Special General Meeting of the Law Society of Scotland (LSS), which had been formally called by the LSS to meet this morning at the Sheraton Hotel, 1 Festival Square, Edinburgh at 10am, is due to take place.
Notwithstanding, the LSS had subsequently purported to postpone this meeting, it is now clear any decision to postpone was ultra vires of the constitution of LSS, and contrary to established applicable law.
The Scottish Law Agents Society have kindly re-booked a room at the Sheraton and all members of the LSS are encouraged to attend in order to vote on the motion with respect to Alternative Business Structures.
Thursday, 15 April 2010
From: Ian S. Smart
Sent: Wednesday, 14 April, 2010 20:28:20
I'm writing to try and bring you up to date with the events of the last few days.
On Monday afternoon, the Society was contacted by four separate members to complain that wrong information had been given in the notice calling the reconvened SGM in relation to the inability to submit fresh proxies. They included one very prominent member of the Scottish Law Agents Society. We then reviewed the terms of the Constitution and concluded that the criticism made was a valid one. The constitution provides for proxies to be lodged no less than 48 hours before any meeting or adjourned meeting.despite it being on the basis that no new proxies could be submitted for an adjourned meeting that both we and SLAS had proceeded on (and since) 25th March. One of our correspondents in particular suggested that to proceed to a vote on Friday without allowing proxies would leave the result of any putative meeting open to challenge (by implication) in the Courts.
I am mortified that this error was made in the first place. I'd be happy to try and explain what happened (insofar as I understand it) at the Council Meeting. Nonetheless by mid-afternoon on Monday, it was clear an error had been made and needed rectified in some way.The problem was that this could not be done by the date of the originally scheduled meeting as a corrective notice issued even early on Tuesday would have given a maximum period of 24 hours for additional proxies to be collected and, in accordance with our archaic constitution, physically lodged at Drumsheugh Gardens. That, in turn, would inevitably have left us open to challenge that insufficient notice of correction had been given.
Accordingly, with great reluctance, Lorna, Jamie and I decided on Monday evening that we had no alternative but to postpone the reconvened meeting. We were aware of three things:-
1) That inevitably this would look incompetent and attract bad publicity.
2) That conspiracy theorists would suggest we were trying to renege on our undertaking that the original purpose of the adjournment was specifically not to gather extra proxies for the pro-ABS camp.
3) That the self-same sources might suggest an intention on our part to postpone the vote until after the Scottish Parliament Stage 1 debate.
There was little that could be done about the first of these but to head off the second Jamie, Cammie and I gave an undertaking to the profession that we would not accept, personally, any additional proxies. In relation to the third, I personally contacted the Minister to request he use his influence to ensure the debate not take place next week. Whether as a result of my efforts or otherwise, we are assured that the debate will not now take place until 28th April at the earliest.
We also felt the reconvened meeting should take place at the earliest possible date. In pursuit of that it was arranged for 21st April.
Unfortunately today certain elements associated with the law agents have sought to suggest that it was not competent for us to reschedule the meeting. I will return to this later.
The second major development on Monday was the meeting of the Council of SLAS. It is now, I think, an open secret that the deal/compromise or whatever one wishes to call it proposed between SLAS and the pro-ABS forces was essentially as outlined in the McGrigors amendment circulated with the papers for the reconvened SGM.
I regret to say that despite earlier indications to the potential contrary, the SLAS Council decided on Monday that they could not agree to this and wished to press their outright opposition to ABS to a vote. I think I am entitled to say that there were quite strong disagreements internally within SLAS as to the wisdom of this course and I regret that in the aftermath of that meeting Michael Scanlan has resigned as President of SLAS. I am at a loss to know precisely how now to interpret the position of SLAS as it has been suggested to me that they are still prepared to compromise but only after they have passed their motion! Quite how and when any compromise is then to be reached and endorsed in any sort of timescale that might influence the Government is a complete mystery. It is undoubtedly the case however that SLAS hold sufficient proxies to do this if they want.
Whether as a result of the SLAS Council being now dominated by more intemperate heads or whatever, in the course of today, SLAS have suggested that it was incompetent to postpone the reconvened SGM and that we were somehow instead obliged to proceed with a meeting that had been, by common consent, called incompetently. Michael Sheridan, their secretary has written today threatening to go ahead with a "Special General Meeting" of the Law Society at the Sheraton on Friday, even if none of the Officers or staff of the Society are in attendance. Whether they intended or intend to proceed to a vote at this event is unclear. We were in no doubt that rescheduling the meeting was competent but we were conscious that in light of the difficulties already arisen from our own error, we were in an awkward position to simply assert that. We have accordingly taken Counsel's opinion in the course of the day and that has, indeed, confirmed our view. We have written back indicating that whatever might or might not take place at the Sheraton on Friday it will not be regarded by us as a General Meeting of the Law Society. I'm hoping however that people might calm down over this overnight, not least because the same opinion confirms that the meeting on the 21st is validly constituted and at least part of the concern here is maintained to be a fear by the Law Agents that this might not be the case and accordingly any vote taken then would be invalid.
You'll gather that this matter is rather taking over my life at the moment. I am sorry if I've not been able to keep everybody as fully advised as would have been ideal but I had high hopes that I might have been writing to you on Tuesday announcing we had a done deal. The most depressing thing of all is that we are conducting this debate as if we were the only players. Nobody in Government has ever repudiated the "no change is not an option" statement. In all of this that is simply being ignored. The real danger is that if we continue to speak with a divided voice then the Government will, at some point, simply ignore us altogether and get on with doing what they want. I'm not sure how that serves anybody's agenda.
Ian
Friday, 9 April 2010
John McGovern on how the Council of the Law Society is failing its members
0 comments Posted by JusticeforScotland at Friday, April 09, 2010
As I paid my eagerly anticipated weekly visit to HM Prison Barlinnie the other day, and waited for those accused I was due to consult with being brought from their cells to the agents’ interview area, I couldn’t stop fretting about the ridiculous position in which this Law Society of ours has placed our great profession.
The first accused I was due to consult with was remanded in custody pending sentence on charges of breach of the peace and police assault, both committed whilst on bail. Never having been fined more than £1000 before, and never having previously served two years imprisonment, it occurred to me that this accused, my client, could in a year or so, be my business rival: a legal service provider. Incredible, but the Legal Services Bill, which the LSS has negotiated for our profession, contains nothing which will prevent such a situation arising. Nothing.
So, I thought, let me see. The next file for the next accused: domestic assault. Serving six months imprisonment, following upon last year’s convictions on indictment for domestic assault which resulted in an eighteen month sentence, following upon convictions in 2008 which resulted in the Sheriff imposing a probation order. This violent thug, too, could be my business rival this time next year: never done two years and never been fined more than £1000. Got the picture? Or will I go on? Well, I will a bit. Because when crime gets serious, you see, the heavies don’t do any time. Nor do they get fined. In fact, who are the heavies? I don’t think the Law Society knows. But that doesn’t matter. As long as the Law Society can regulate the new ABS businesses, and thereby stay in business itself, it’s fine.
In December last year, I wrote an article which, inter alia, highlighted that s.92 of the Legal Services Bill removed this profession’s independence and ceded it to the Government. The Government, under s92, had the power to set the criteria for the appointment of non-solicitor members to our representative Law Society Council. Significantly, s.92 also allowed the Government to set the proportion (without any limit) of non-solicitor members to Council. For months, on websites, in press releases and debates, the Law Society argued there was no problem with s.92. Indeed, at a meeting I attended with LSS office bearers, the LSS attempted to diffuse my concerns about s.92 by stating that they had a letter from the Cabinet Secretary stating that the proportion of non-solicitor members on the Council of the Law Society would always be set after consultation with the LSS.
A letter? From the Cabinet Secretary? Fine. No statutory safeguards? But a letter? Fine.
Well, not really. Because, the Cabinet Secretary might not be there forever. And what happens if another Government comes into power……
I think the LSS knew what I meant. Because in March, Fergus Ewing announced that s.92, or at least its Government control provisions, had gone. No more. Finito. The Law Society must have been embarrassed, you might think, having tried to reassure the profession that it was in control and nothing was wrong with s.92. Well, not exactly. The LSS was “delighted” at s.92 being removed. Go figure! Cos’ I can’t.
But I’ll try. You see, if the Government says “run”, the Law Society sprints; if the Government says “jump”, the Law Society leaps; if the Government says “the status quo is not an option, how is the Law Society going to survive post Tesco law?”, the Law Society says “if you look after us, we’ll deliver the profession’s independence to you”.
So there we are. Government control of our Council (formally removed, but ah hae ma doots) and external ownership of law firms. Smashin. Well done Law Society. As long as you’re ok.
And what has this hard working, decent, honest profession done to deserve losing its independence? Eh, nothing. Nothing at all. Well apart from allowing those with Government civil service agendas to penetrate and dominate our Council. And it’s still going on. Just ask SLAS. Or better still, see for yourself:
www.slas.co.uk/news_detail.php?newsID=724&slas=918ccb2bc091cdfda6d1b69d67a4bd4b
We’re paying for that. But for how much longer?
I read today among the Law Society’s “papers” dispatched to every member (10,500) that the “Glasgow Bar Association had requested a referendum on the nature and extent of the society’s role…”
Speaking of which, there was the motion to adjourn at the SGM a couple of weeks ago. The decent, honest, hard working solicitors who had been told by the Law Society two months previously, when they expressed their concerns about external ownership, to “bring it on” did just that.(In case you missed that, they were told by the Law Society to “bring it on”). Staring defeat in the face, The Law Society’s Standing Order book was literally produced from the back of the hall and a hand count later, proxies denied, and we’re all back on the train again. No vote.
Privately, past Presidents are aghast at what is going on. Privately, politicians are disbelieving. Publicly, other professions are looking and not laughing.
There is another way you know. Cheaper and more effective. Be it SLAS, the GBA, the WS Society, the RFPG….. All independent. All cheaper. All stronger. All together.
We deserve nothing less than mature, independent representation for all our sakes. Watching this Town Hall political soap opera that is the Law Society self destruct in front of us is not much fun. If you value an independent profession, you must vote “NO” in the dual functions referendum running 26th April through to 10th May.
Thursday, 8 April 2010
No mandate for ABS; members must be consulted on 'appropriate safeguards'
0 comments Posted by JusticeforScotland at Thursday, April 08, 2010
The result of the Alternative Business Structures (ABS) referendum has reaffirmed that the Council of the Law Society of Scotland (LSS) has lost the support of its membership to unconditionally promote and support ABS.
Likewise, to suggest 'ABS wins by a whisker' was inhabile with the fact 50.27% of members voting were only in favour of ABS "as long as there are appropriate safeguards to protect the core values of the legal profession ..." . That conditional support currently carries little weight when the Scottish Parliament's Justice Committee has itself expressed doubt over the appropriateness of safeguards in the Bill as drafted.
Wednesday, 7 April 2010
Don't let Scotland regress: comment on the dearth of family law legal aid practitioners
0 comments Posted by JusticeforScotland at Wednesday, April 07, 2010
The Herald’s report (6 and 7 April) that almost one third of specialist family lawyers in Scotland no longer undertake civil legal aid cases is disturbing. In many developing countries, legal aid is so poorly financed that even capital cases are defended by the most inexperienced and often incompetent of practitioners, with life and death consequences.
As Scotland’s proud legal system looks down a regressive road, we have a simple choice. Do we believe in the equality of arms between opponents as a matter of justice? Or should the quality of representation be based upon your personal wealth and who you happen to be?
If the former, then we must review our legal aid system and Robert Brown MSP’s call for an inquiry is to be welcomed. If the latter, we should embrace ‘Tesco Law’, and its drivers of choice based upon individual wealth and status. But what kind of Scotland would we create?
The value of an independent Scottish legal system
0 comments Posted by JusticeforScotland at Wednesday, April 07, 2010
Aberdeen solicitor, Catriona Walker's response to Fergus Ewing MSP (published in The Herald today):
Tuesday, 6 April 2010
Scottish big four threaten to defect to England
0 comments Posted by JusticeforScotland at Tuesday, April 06, 2010
The Lawyer newspaper reports that Scotland's 'big four law firms' will defect to England if they don't get their way over 'Tesco Law': the story is reproduced below.
"The Scottish legal market is facing crisis, with an industry-wide argument over the introduction of alternative business structures (ABSs) having the potential to drive the big four firms south of the border for good.
Dundas & Wilson, Mclay Murray & Spens, McGrigors and Shepherd & Wedderburn (S&W) are considering having their lawyers register with the Solicitors Regulation Authority (SRA) rather than the Scottish Law Society in reaction to the Scottish Law Agents Society’s (SLAS) attempt to ban the introduction of ABSs.
While the firms would not physically leave their Scottish headquarters, they would shift to a model whereby the bulk of their lawyers would be regulated by the SRA, with those in Scotland practising as registered foreign lawyers. This would mean the Law Society of Scotland (LSS) would have a vastly reduced revenue, with practising certificate fees going to the English Law Society, while the master insurance policy used by the entire profession in Scotland may be rendered unviable.
Dundas managing partner Alan Campbell said: “If we feel that we’re trading at a disadvantage to our competitors and they’re pan-UK, then we’d need to look at every option to make sure we’re on a level playing field. If that involves being regulated by the SRA, that’s something we’d do.
His counterparts at the other big four firms agree. McGrigors managing partner Richard Masters said: “It’s unpalatable and not a position we’d want to find ourselves in, but if [ABSs] take off and we’re in a non-competitive position we’d have to consider it.
The LSS has been successful in lobbying the Scottish government to alter some parts of the draft Legal Services Bill, but there are concerns that it would lose its negotiating position if it was forced to oppose ABSs, which is what the SLAS wants. As it is a government bill that has been some years in the making, it is likely that the Scottish government would press ahead with enacting it without the support of the sector.
The big commercial firms are a big part of the Scottish economy and the government doesn’t want to hamper them,” said LSS president Ian Smart.
S&W chief executive Patrick Andrews added: “The profession is in a perilous position because it’s difficult to see how it can maintain credibility in its dialogue with the politicians. The risk is that [the politicians] will steam on and do what they want and the profession is left watching.”
‘Tesco law’ threatens client protection
0 comments Posted by JusticeforScotland at Tuesday, April 06, 2010
Controversial new legislation to introduce so-called Tesco law to Scotland presents a real threat to consumer protection, according to one of the country’s most high-profile lawyers.
The Herald last week reported that Frank Maguire, senior partner at Thompsons, one of Glasgow’s largest firms, fears the new legislation would increase the risk of money-laundering and allow drug barons to expand their empires.
Monday, 5 April 2010
Bill threatens Scottish consumer protection
0 comments Posted by JusticeforScotland at Monday, April 05, 2010
The Minister for Community Safety, Fergus Ewing MSP, has claimed that the Legal Services (Scotland) Bill ('the bill') would not jeopardise a strong, independent, Scottish legal system (Letters, The Herald, 3 April 2010). However, that claim must be wrong as a matter of logic.
The bill would open up ownership of Scottish legal services to a worldwide market of investors and corporations, with consumer protection consisting of a risk-based licensing approach. Accordingly, notwithstanding how good the bill's proposed regulatory scheme claims to be, the fact it extends ownership and control of Scotland's legal services to a global market (of both legitimate and illegitimate interests) must mean the bill presents a real threat to Scottish consumer protection.
That risk is compounded by two incontrovertible facts. Firstly, any risk based regulatory system - no matter how good - accepts an element of harm and failure, and invariably detects serious consumer detriment after damage has been done. Just think of the current payment protection insurance scandal, or the various misselling of products scandals. Do we really want this approach for legal redress and justice within Scotland?
Second, businesses and investors are seriously high risk compared to legal firms. It's a cultural thing. Risk taking is associated with higher financial returns, and even if you go bust, insolvency law encourages you to rise from the ashes as a pheonix: whereas if solicitors take risks, they end up struck off, with no re-birth. And rightly so. So conceptionally, this approach to legal services is wrong in principle - and we're not even talking about how weak and unworkable the bill's regulatory scheme is.
Tellingly, neither European countries, nor the USA, are embracing the Scottish Government's deregulation of legal services model. Around the world, governments are tightening up their regulatory systems, so why are we acting so regressively in Scotland? Critics say solicitors have a 'monopoly' in Scotland, but it's a monopoly in the same way DVLA controls who can drive a car. And it's not true, as anyone can set up a body to provide representation in the courts under the Law Reform (Miscellenous Provisions) (Scotland) Act 1990.
The truth is the Scottish Government's bill is based upon a deregulation or 'free for all' model from 2004. This was three years before the financial services meltdown from deregulation; an approach which has since been discredited and abandoned around the world. Yet Fergus Ewing and his colleagues clutch onto this flawed model because England did so in 2007?
Mike
Friday, 2 April 2010
GBA response to 'proposals for change'
0 comments Posted by JusticeforScotland at Friday, April 02, 2010
Glasgow Bar Association response to the Law Society of Scotland's 'Proposals for Change' consultation document: Section 1 of the Solicitors (Scotland) Act 1980 states the "objects" of the Law Society of Scotland (the "LSS"). It is the view of the Glasgow Bar Association (the "GBA") that there is an irreconcilable conflict contained within s.1 of the Solicitors (Scotland) Act 1980 (the "Act"). That section legislates that it shall be "the object" of the Law Society of Scotland, inter alia, to "promote" the "interests of the solicitors' profession in Scotland" as well as "promoting the interests of the public in relation to that profession". It is impossible for the promotion of both interests to be mutually consistent, beneficial or indeed legitimate.
Thursday, 1 April 2010
The Royal Bank of Scotland were fined £28.6 million by the OFT yesterday for disclosing confidential customer information and breaching competition law. Last year Aon Limited were fined £5.25 million by the FSA for failing to take reasonable care to establish and maintain effective systems and controls to counter the risks of bribery and corruption.
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