Douglas Mill: No whitewash in the White House

Douglas Mill: No whitewash in the White House

Douglas Mill

Nixon said it in 1973 which I accept is well before most of you were born but those of a certain age will remember it as the beginning of the end for him. Cover up worse than the crime and all that. Well, I will deal with that in more detail next week. Today is about the SSDT consultation and the Law Society of Scotland’s response.

Before we get on to that, thanks to lots of you for the feedback on the last article – and well done those few who spotted the Shakespeare and Led Zeppelin references.

I set the scene a couple of weeks ago in relation to a case I agreed to run for an existing, retired client. Like the vast majority of retired and retiring solicitors, he did not appreciate that remaining on the roll means you are subject to prosecution. For most the misapprehension is no practising certificate: no regulation.

Not so and apparently LSS do not make that clear to the approximately, I understand 1,700 retentions they have at c.£110 per annum. Now a lot of them will need to stay on-career changes, maternity etc, but a fair proportion are retired and contributing to almost £200,000 of easy revenue. Fine if the danger is pointed out clearly.

Anyway, that is an aside. This is about where your professional body want to be when they prosecute you. As I said, I would not normally have looked at the responses had it not been for the saga my poor client was drawn into.

The background to the present SSDT Consultation is the decades-old formula of charges. This has become outmoded as it is based on a Table of Fees abolished in 2005. All fair and good and if anything an overdue reassessment. LSS commented as have a few others.

The problem arises in the LSS Additional Comments section wherein they say that in the (rare-about three per annum) event of SSDT finding in favour of the respondent solicitor, “…the starting point should be no order for expenses”. Double take time. Yes, that is their position. Let me quote again.

“The importance of ensuring that the Society can perform its regulatory functions free from financial consequences should its decisions be successfully challenged, is crucial to maintaining public confidence in the legal profession.”

So, suck it up unless you win a proof on the question of malice. Shades of the Crown Office and their tens of millions in damages.

Astonishing. Crucial?

Is it really? Do people on the Morningside Omnibus actually talk of little else.

What about the good old concept of moral hazard?

What about natural justice?

What about equality of arms?

What about accountability?

What about measuring this, because at three losses each year at c.£10k each, that makes a potential saving of £30k, which is about a devastating and budget-busting four-hundredth of the LSS turnover of almost £12,000,000. So, being fair to hard-pressed solicitors vindicating themselves is about £2.80 per solicitor. Not a large price to pay, surely? There but for the grace of God and all that.

Now all this would be fine coming from an external regulator, for instance the SLCC, but this is coming from the profession’s own.

And let me say, you will get no anti-SLCC rant from me. On behalf of clients I have recently dealt with, three of their case managers and found them very helpful and professional. Unlike their LSS counterparts of which more next week.

All this comes back to Section 1 of the Legal Aid and Solicitors (Scotland) Act 1949 amended through time. Good old interests of the profession and interests of the public in relation to the profession. Conflict of interest? Still tenable in a new Scotland with a parliament looking after the public and the SLCC as a gateway? Almost certainly not. Sad but realistic.

But that is only part of it. I have spoken to a number of solicitors – and indeed some Council members – and they had no idea this was new LSS policy. It is a profound change of principle even if the arithmetic is not eye watering. Who decided? Was it Council policy? Was it aired at an AGM?

Another troubling aspect of the LSS response is it actually mentions the case in which I was involved (badge of honour) and says: “We are aware of one matter that is currently before the Auditor of Court to determine how an award of expenses should be calculated for a non-solicitor representative.”

And that was dated May 2021 and the Auditor’s decision finding against LSS and saying in robust terms it was not a matter for him was dated 30/4/21. So, the response was unrevised and, to the best of my knowledge, nothing was intimated by LSS to the SSDT in the light of that.

The fourth concerning aspect of this farce is the LSS now desire that only solicitors should be able to appear. To ensure regulatory capture over respondents’ agents? Jobs for the boys? Looking after the profession? Or something which cuts across tribunal representation generally and smacks of protectionism. I’ll leave that to the Faculty of Advocates and the Competition and Markets Authority.

Next time quis custodiet.

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