Update - Law Society statement on BBC documentary "Lawyers Behaving Badly"
Solicitors play a crucial role in our society and our economy, helping thousands of people and businesses with the widest spectrum of legal issues.
The evidence shows that the public have confidence in Scottish solicitors. In a major poll of Scottish public opinion by Ipsos MORI, 87% of people who had used a solicitor said they were happy with the service received. Over three-quarters said they had trust in the profession as a whole recognising that they work hard to help people deal with difficult situations. We do not take this position for granted.
We recognise the interest which BBC Scotland has shown in the whole system of regulation and appreciate its focus in ensuring strong systems are in place to protect clients in the relatively few occasions when things go wrong.
That is why we sought to be as helpful as possible to the production team over the last three months as they prepared their documentary. We provided a host of background information and ensured the non-solicitor Convener of our Regulatory Committee, Carole Ford, was available for an interview which lasted well over one hour.
Individual cases and recent reforms
In highlighting some of the most difficult and complicated cases, we do not believe the BBC gave sufficient weight to the major reforms to legal regulation in Scotland over recent years. Indeed the specific cases raised by the BBC all predated these reforms.
Since the system was overhauled in 2008, we have a clear system of co-regulation in Scotland, with different organisations undertaking different roles. You now have an independent and separate Scottish Legal Complaints Commission (SLCC) which receives complaints from the public and decides which should be admitted for investigation. We are surprised the BBC decided not to carry any interview with the SLCC as part of its documentary, given the critical role it now plays in the regulation system.
There is also a separate and independent discipline tribunal, involving solicitors and non-solicitors, to decide in serious cases of wrongdoing. The Law Society is responsible for setting standards, providing training and support and setting clear and robust tests for those wishing to enter the profession. We also proactively inspect firms, investigate conduct complaints passed to us by the SLCC and intervene in firms when there is a critical need to do so.
There is also clear oversight and control of our own regulatory work as well as redress for consumers whenever they think we get it wrong. Within the Law Society, every single regulatory sub-committee is made up of solicitors and non-solicitors from outwith the legal profession altogether in order to ensure the public interest features in each and every decision.
The SLCC has oversight powers for our own complaints handling and our Guarantee Fund and people can make a handling complaint to the SLCC if they are unhappy with how we have dealt with their case. People can also take an appeal directly to the independent discipline tribunal and ultimately take action against us to the Court of Session
Part of the broadcast focused on the issue of the criminal and civil legal aid registers. The BBC has raised concerns over a number of solicitors who have had findings of professional misconduct against them and are on the legal aid register.
In each of the cases mentioned, the Society did act properly, investigating the complaints thoroughly and taking action to the independent Scottish Solicitors' Discipline Tribunal. It is only because of the actions of the Society and our evidence gathering that the findings of misconduct were made against the solicitors involved. However, it is always a matter for the independent tribunal to decide what action is taken against a solicitor found guilty of misconduct, whether that be a fine, censure, restriction, suspension or strike off. In these cases, the tribunal chose not to strike off the solicitor concerned.
It is the Scottish Legal Aid Board and not the Law Society of Scotland which maintains the legal aid registers. Whilst the Board has the ability to remove a solicitor from the register, the Society has no such power other than through the civil legal aid quality assurance scheme where a poor service has been provided by the firm directly to clients.
In cases involving the abuse of legal aid money, we are dependent on the Board in making a conduct complaint through the Scottish Legal Complaints Commission for us to investigate and, where necessary, take to the discipline tribunal.
Regulation in England and Wales
We think it would be wrong to look at the system of regulation in England and Wales as a model to follow here in Scotland. There is much evidence to suggest the system there is more complicated, bureaucratic and expensive. The chair of the Legal Services Board in England and Wales even described that system as "over engineered and exceptionally complex".
The Scottish Government looked at that model when it reviewed the whole regulatory system in 2009 and ultimately rejected it. Indeed, so many concerns have been raised that the UK Ministry of Justice ran a public consultation on how the system in England and Wales could be simplified. We were surprised that the BBC made no mention of these concerns or the recent calls for reform.
The Scottish regulatory system
The regulation of solicitors in Scotland is similar to that in Ireland, north and south, and in many states and provinces in the USA and Canada. Other professions in Scotland, including accountants with ICAS, chartered surveyors and RICS and teachers and the General Teaching Council, operate to a similar system of regulation.
That is not to say the current system here in Scotland is perfect. It isn't and we have been working with government, consumer groups and the SLCC to review a series of possible reforms which we believe could help make the system of regulation even stronger. That should not detract though from the core of the system which is built around the public interest and protecting clients.
The Law Society of Scotland has been involved in the regulation of solicitors and has worked in the public interest for almost 65 years. We take our responsibilities extremely seriously and will continue to work hard to maintain the highest possible standards of professionalism from Scottish solicitors and ensure they remain the respected and trusted advisors of choice.
If you are a solicitor with any further questions on these matters, please contact the regulation team on 0131 476 8131.
If you are a member of the press or public, please contact the Law Society's communications team on 0131 226 8884 or 0131 476 8115.
15 January 2014