The Which? super-complaint: ‘inaccurate’ and ‘unhelpful’

The Law Society of Scotland has been involved closely in the review and reform of the legal profession in Scotland. It is therefore disappointing that Which? did not contact the society or engage on the important issues raised by the consumer watchdog’s super-complaint of legal rules in Scotland working against consumer interests.

There are some fundamental errors in the super-complaint. For example, it states that both the Law Society of Scotland and the Faculty of Advocates, as the professional bodies for solicitors and advocates respectively, are “self-regulating”.

This is based on an outmoded perception of the legal profession that does not reflect the co-regulatory aspects that apply today. In many areas, for example immigration and asylum law, the Law Society co-regulates with bodies such as the Office of the Immigration Services Commissioner, the Department of Trade and Industry and the Office of Fair Trading.

Furthermore, Which? seems to ignore the Legal Profession and Legal Aid (Scotland) Act 2007. This establishes the Scottish Legal Complaints Commission, which is due to open next year. Instead, aspects of the complaint seek to simply trace onto Scotland parts of the Report into the Regulation of the Legal Services Market in England and Wales by Sir David Clementi and the current Legal Services Bill.

It is almost as if the Scottish Executive Research Working Party into the legal services market in Scotland and the investigations by the Justice 1 and Justice 2 Committees of the Scottish Parliament, which resulted in the Legal Profession and Legal Aid (Scotland) Act 2007, never existed, or only had a tangential effect.

Other more fundamental inaccuracies include the statement: “Lawyers are prohibited from working with non-lawyers.” This is simply not true. Many firms of solicitors employ surveyors, accountants, financial advisers and more. It omits to make clear that the restriction on solicitors sharing profits with non-qualified persons is in statute, not in the Law Society of Scotland’s rules.

Furthermore, the complaint states that the “High Court of Justice” would appear to have some role in Scotland. Unfortunately for the author of the super-complaint, the High Court of Judicature has no writ in Scotland. Such an elementary mistake and confusion between the English High Court and the Scottish High Court of Justiciary is regrettable.

The nub of the super-complaint is “concerned with the regulatory restrictions that inhibit lawyers in private practice from adopting alternative business structures and which prevent consumers obtaining direct access to advocates”. However, the issue of alternative business structures is one that the society is considering carefully.

The Legal Services Bill contains provisions regarding alternative business structures that will not apply directly in Scotland. The regulatory mechanism proposed in the Legal Services Bill is untried and untested and it is premature to suppose that this structure will actually operate in the consumer’s favour or will produce the desired results.

Yet another failure in the understanding of Which? comes at paragraph 85, which states that all that needs to be changed is the profession’s rules. This ignores the legislative prohibition.

As one of the few jurisdictions in Europe that took up EU Competition Commissioner Mario Monti’s challenge on competition compliance of its rules, the society is confident that its rules do not unduly limit Scottish solicitors in providing a service to their clients. Scottish solicitors can advertise freely and there is no restriction on fee charging.

Furthermore, the solutions Option i and Option ii at paragraphs 90 and 92 attempt, without any research or proper evidence base, to simply apply English solutions that have no place in the Scottish legal system.

It is disappointing that an organisation such as the Consumers Association can produce such a poorly written document that does not contribute in a meaningful way to the debate on such an important topic as the legal services market in Scotland.