Douglas Mill: MENE, MENE, TEKEL, UPHARSIN
Very few of you will have tuned into the Roberton Report a couple of years ago. Even fewer will be aware that the Scottish government (after a lengthy and entirely understandable delay) is only now consulting on its recommendations. Even fewer will respond to the consultation. Why should you? How could it possibly affect you? Aren’t others interested in that? You’ve got a living to earn.
Bear with me. I get all that. Understandable, but sadly that is why the profession is where it is today. And whilst I have fumed about apathy and loss of collegiality, I have largely kept quiet. What right have I? I have not practised law since 1996. I have not even been on the Roll of Solicitors for about seven or eight years – of that, more in a follow-up article.
Many a time and oft have I borne insults to the profession with a patient shrug. As I have said previously, the autumn moon now lights my way. Set against that, however, is the fact that in the last 13 years I have acted for well over 130 legal firms and dozens of individual solicitors. So my ear is to the ground. Indeed, on one perverse view, the worse it gets for the profession, the better it gets for my business.
So what is this article about? Well not actually the government review – though more about that sometime soon – and I do encourage all solicitors to look into it and respond. No, about another review and one so arcane I would not expect any more than a dozen of you were even aware of it – an SSDT consultation last year.
Nor, actually, would I if I had not become caught up in the issues it raised. This time I have “skin in the game”, in modern parlance. This time I have an experience which the profession really needs to know about. This time the words “malicious prosecution” and “egregious” are not confined to the Crown Office and grubby MPs.
I will get to the point. The impressive and independent Scottish Solicitors’ Discipline Tribunal consulted earlier this year on the question of payment of expenses. Historically, and I mean since it and the Law Society were established, decades ago, anyone could appear on behalf of a respondent. You did not need a practising certificate or even to be on the roll.That was the law. Expenses virtually always followed success. No surprise there. And no issue as long as LSS won, as they usually did.
I teach ethics and keep tuned into SSDT annual reports. LSS lose on average three out of 40 cases each year – broadly eight per cent. And this wasn’t much of an issue really because representation was generally by LDU solicitors and back in the day, lots of firms held insurance to cover this. Sadly, and it is sad, representation is more of an issue than it was. Jim McCann is retired. Even Bill McCreath cannot go on forever. Outstanding solicitors such as Johnston Clark and David Burnside are still about, but affordable representation, which is essential for the high street profession is becoming problematic.
Which is the main reason I appeared for an existing solicitor client, whose retirement and business merger I assisted. We were assured in no uncertain terms as part of the preparation for the hearing – and this is critically important-that expenses would follow success.
And we won. Not through my forensic skills, but because LSS had a weak case. And we asked for the usual order for expenses. And that was not opposed. And it was granted. And the SSDT award was not appealed. And – this again is critical – I was asked by the independent LSS fiscal to submit my account. And I did, months after the hearing, and modest it was. And it was not paid. It was challenged. In a pejorative way implying a VAT fiddle.
And my client was forced to employ a law accountant. And another (significantly higher) account was submitted months later (this was all during the worst of Covid). And it was not paid. Because by now LSS had taken the position that no expenses were due as I was not on the roll – something known to them years before this farce unfolded. Good faith? Pull the other one. And they did not object to my acting. And they did not appeal expenses or try to reach a compromise solution. Douglas Mill is not getting a penny.
And my client was forced to go to the stress and expense of bringing a case to the Auditor of the Court of Session. And we won. And the auditor confirmed that the LSS representations to him were entirely wrong in law. And his clear decision was intimated to the parties. And still not paid. And my client was forced to go to the Court of Session again, this time to obtain a warrant for payment.
And only when this was intimated to LSS – i.e. “the sheriff officers are on their way if you don’t pay now” – did they pay. About 18 months after the hearing. One way to help the cashflow. I do wonder if what is essentially a decree for payment of a debt has ever passed against LSS in its history?
And LSS is not subject to FOI requests. And LSS has a self-lauded policy of transparency. And LSS have after several requests declined to identify those in regulation who made this series of embarrassing decisions. And that is at best hypocritical. The senior leadership team is involved. Some are solicitors and accordingly with professional duties.
And you may well think that is unprofessional. And you may well feel that is no way for a responsible regulator to act at the best of times never mind when it’s very future as a regulator is in very considerable doubt. And you may well feel that if you as a solicitor had acted like the body which judges your professional conduct, you would expect the professional misconduct complaint anytime. The Sharp Test defines the test of professional misconduct: “conduct which is not of the standard which could reasonably be expected of a competent and reputable solicitor”. And you may well think it met. And you may well be embarrassed to be a member of a profession which treats observing the law like Boris Johnson.
I, of course, could not possibly comment.
And, as matters are not wholly resolved, I won’t. But my next article will deal with the LSS response to the SSDT consultation in the context of this case. Because you need to know what is being said in your name.
The Law Society of Scotland declined to comment.