By Ian Fraser

The Herald

October 30th, 2006

Society on collision course with politicians over ‘independent’ complaints body

DOUGLAS Mill, secretary and chief executive of the Law Society of Scotland, has the politicians of Holyrood and the civil servants of Victoria Quay firmly in his sights.

However, his tactics are about to change. It appears that the rather gentlemanly opening skirmishes are over and warfare is about to break out.

The issue that has precipitated hostilities is the “independent” complaints body MSPs are currently piecing together.

Mill and many solicitors believe it will undermine the Scottish legal profession and make it more difficult for Scottish clients to access a solicitor at relatively low cost. The Scottish Executive begs to differ, of course.

Mill concedes that entrusting the handling of “service” complaints against Scottish lawyers to an independent, government-funded body does makes sense, even though he thinks the society’s record is more than acceptable in this regard.

At present, the society handles both service and conduct complaints about solicitors, a system of self-regulation which has attracted fierce criticism.

“That (conceding that service complaints should be independently handled) is a big concession for us, but we are utterly pragmatic about it,” says Mill, speaking in the library of the society’s Victorian headquarters in Drumsheugh Gardens.

“Unlike the advocates, most solicitors are entirely happy with the idea that their professional body should no longer be responsible for handling service complaints. If we no longer have responsibility for service complaints, our members might even start to love us again, “ he jokes.

Mill’s concern is that the legislation, the Legal Profession and Legal Aid (Scotland) Bill, will give rise to a Frankenstein’s monster of a complaints handling body.

Not only does he believe that the proposed Scottish Legal Complaints Commission will be slow, rule-based, bureaucratic and expensive – his biggest fear is that it will not be properly independent, as appointments to it and pay levels for commissioners will be set by Scottish ministers.

It is partly for this reason that the eminent Queen’s Counsel, Lord Lester of Herne Hill, recently said the body as proposed will be incompatible with the European Convention on Human Rights.

Mill says: “The proposed body will cost about four or five times more than the current system – and it is inevitable firms will pass those costs onto clients.”

Mill does have one nuclear option up his sleeve. He told The Herald that the society will probably take Scottish ministers to court after the bill is enacted, if it is enacted in its present form.

Mill is particularly worked up by what he claims is the lack of understanding of the machinations of the law displayed by bureaucrats and politicians.

“The inability of civil servants to engage with the society, and their lack of trust in the society, has been stunning,” said Mill. He accuses them of “not understanding” how professional indemnity insurance and specifically the society’s “master policy” works. “Talking to them on these subjects is like having a dialogue with the deaf,” says Mill.

“The civil servants seem incapable of distinguishing between the master policy (which is negotiated annually on behalf of all solicitors with insurers by the insurance brokers Marsh) and the wholly separate guarantee fund, “ he adds. “They want to look at claims (against the master policy) and how these are handled. But they cannot do that. If they do try to do this, I believe the insurers and the Financial Services Authority will tell the Scottish Parliament to take a hike.”

He also believes the parliamentary time and the Justice 2 Committee time that has been allocated to piecing the bill together is inadequate, particularly in view of the number of amendments tabled. “It’s an absurdly short timescale, “ said Mill. “They have four 90minute sessions to deal with around 550 amendments.”

Mill further opines that the lack of a revising chamber at Holyrood, with powers to rein in the Executive, has made it possible for what he sees as a shoddy and ill-thought out piece of legislation that will undermine the independence of the legal profession to near the statute books.

The society also believes the Executive is being unrealistic in its proposed time frame for getting the new complaints-handling body up and running. “I don’t believe the new body will be ready to start handling service complaints before January 2009 at the earliest,” he says.

Another controversial subject which has divided the profession is that of alternative business structures (ABSs), proposed in the landmark Clementi report south of the border. One reform involves giving non-lawyers the ability to hold equity stakes in law firms, though only at present in England and Wales.

Mill cannot understand how such things would work in practice.

“I can see the business argument for ABSs. The problem is no-one has come up with any workable proposals as to how such things might be regulated. There is also the issue of why non-solicitor owners of law firms – for example fund managers, estate agents and tax planners – should be exposed to unlimited liability for the conduct of their solicitor colleagues. ABSs are totally inconsistent with the current collegiate approach to fidelity.

“There is not much of an appetite for ABSs in Scotland, apart from around six firms, “ he claims. “However if Westminster does introduce ABSs we acknowledge that we will be unable to hermetically seal Hadrian’s Wall.” Mill also alleges that “the potential for fraud would be infinite” if nonlawyers are to be allowed to own firms of solicitors.

Mill returns, finally, to his fears that reforms to complaints handling will jeopardise the very independence of the legal profession. “There is no modern democracy where the executive controls the legal profession,” he warns. “That sort of thing is more likely to happen in a place such as Zimbabwe than in a modern democracy.

“We do welcome change, but we want the new body to be workable, independent and accountable. That is a long way from what we appear to be getting.”

Some lawyers back Mill’s uncompromising stance. Douglas Connell, joint senior partner of leading private client firm Turcan Connell said: “While I am in favour of an independent complaints handling body, I think the notion that any law firm that has a service complaint made against them should be made to pay a levy of hundreds of pounds before a case is even heard, is iniquitous, indefensible and hugely open to abuse.”

However Kirk Murdoch, senior partner of McGrigors said: “The mood of the country is no longer in favour of independent regulation. The decision has already been taken on this, so in my view Douglas Mill is pushing water uphill.”

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