Letters on the Society as regulator only; testamentary capacity
LSS: regulator only?

In a letter to the Scottish Law Agents Society (“SLAS”) in 1999, Martyn Evans, director of the Scottish Consumer Council, stated that “if consumers are to be confident that the procedures are entirely fair,… the way forward should be to establish an independent body to deal with complaints about solicitors in Scotland”. The Law Society of Scotland, which at the time dealt with all complaints, both service and conduct based, was not independent of solicitors; no doubt unsuccessful complainers felt it was biased, representing the interests of those against whom their complaints had been made. 

Echoing Mr Evans's comments, in June 2007 the Scottish Legal Services Ombudsman, Jane Irvine, said: “Clients simply do not believe an institutional 'members' body can deal with consumer complaints fairly.” So the Scottish Parliament established the SLCC, operational in October 2008.

Ms Irvine noted that “in the year 2006-2007 the Law Society of Scotland received 3,623 complaints”. By comparison, in 2018-19 the SLCC received 1,326. Last year there were 1,036. Only 1,100 are predicted for 2020-21, and 1,200 for 2021-22. This despite the time limit for complaints having been trebled to three years.

The SLCC has an annual budget of around £4,000,000 and employs around 60 staff, taking more than 11 full working days to process each complaint, at a cost of £3,300. This is startlingly inefficient. 

The raison d’être of the SLCC is to address an alleged public perception that the Law Society cannot deal fairly with complaints against its own members. This concern would surely evaporate were solicitors no longer members. As regards representation of the profession, the task is already sufficiently accomplished by a plethora of diverse and active legal societies such as the Family Law Association and local faculties such as the Glasgow Bar Association. SLAS is our oldest purely representative national body, dating from 1883. It is still going strong and looks after its members well. 

However, the Law Society was far more efficient than the SLCC in processing complaints. The solution must be that it should revert to doing so, losing its representative role and retaining a solely regulatory function in order to address the mischief that Evans and Irvine identified. This would also remove the conflict of interest which, ironically, a society of lawyers presently has to try to accommodate. 

Andrew Stevenson, secretary, Scottish Law Agents Society

Testator capacity: the tricky cases

The article “Wills and executries: learning the hard way” (Journal, March 2021, 44), provides a timely reminder of the mental capacity minefield. Of course, in this regard, the Law Society of Scotland's Vulnerable Clients Guidance is immensely helpful.

The article cites the case of a client giving away his questionable mental state only during the small talk after he had given instructions for his will. This may not be all that uncommon. I had a number of such cases, in one of which the client, as he was departing, and à la the fictional Lieutenant Columbo, informed me that he was speaking in his capacity as “the president of Scotland”. Another that I remember well was, while taking his instructions, being alerted to my client's unhealthy mental state by his instruction to incorporate something vile and outrageous into his will.

However, it is necessary to remain mindful that, in this labyrinthine area of the law, testamentary capacity is valid during a lucid interval.

George Lawrence Allen, Edinburgh

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