Opinion: Douglas Mill – quis custodiet ipsos custodes?

Opinion: Douglas Mill – quis custodiet ipsos custodes?

Douglas Mill

It was Juvenal. Or Plato. Or Socrates depending on your search engine. And, yes, it was a long, long time ago. But the principles remain the same. The checks and balances. The openness. The accountability. Scottish solicitors are accountable to the Law Society of Scotland. To whom are they the Law Society of Scotland accountable? Who guards your guards?

The judges of your ethics. Your morals. Your professionalism. The way you act. Theirs must be the high moral ground. Unblemished by any accusations of bias or vendetta, or concealment, or just plain stonewalling.

Continuing with the Roman theme, like Mark Anthony (who actually was praising Caesar and not burying him), I am here to speak of what I know, and what I do know is my client, in the tribunal matter I have written about in SLN on two previous occasions about, has not, to the obvious annoyance of LSS, gone away.

My client had considerable concerns regarding the challenge by the LSS against the award of expenses in his favour by SSDT so he wrote to them voicing those concerns and asking who in the Society made those decisions. He is tenacious and persistent – as indeed solicitors should be.

He informs me his correspondence with various officers of the LSS is akin to a dialogue with a brick wall.

He does now know that the regulation department were involved and that LSS have started to use the expression “good faith” in their replies to him, presumably because someone has now advised them that they will not enjoy the protection of their statutory indemnity from damages, nor their own PI cover unless they can show their actings are bona fides. Which will be interesting. Very interesting.

What is also interesting is that they have all point blank refused to identify those others who were involved (nine times of asking by him, 12 if you count the number of times I also have asked), or to provide copies of relevant minutes, or to answer the explicit question as to whether the chief executive and/or the board were complicit. Checks and balances? Aye, right.

Clearly and understandably, this has resulted in him losing any faith at all that he will get answers to his reasonable and frequently asked questions. The cover up, for that in his opinion is what this is, is now as, if not more, serious than his original concerns. Shades of Watergate!

It would seem that the much-trumpeted LSS values of openness, transparency, integrity and honesty are, at least in his view, a total joke. So, to whom does he turn now? Who guards his guards?

Let’s examine his options.

  1. If the issue he has concerns about involves conduct and the person whose conduct is in question is a solicitor, then he has to complain initially to the SLCC. They have no power to investigate alleged misconduct, so they MUST refer it to the… regulation department at LSS. But hang on a minute, wasn’t it the regulation department who were involved in the first place?

  2. If the complaint concerns the conduct of a non solicitor employee of LSS, he was told that any complaint must be addressed to the chief executive or the president – but LSS refuses to confirm whether or not either of those parties are involved in the matter he wishes to complain about. Not much confidence either in that process then.

  3. His third option is just to lodge a generic complaint against persons or persons unknown who may or may not be solicitors. What then? If any of such persons are solicitors presumably LSS must then refer the complaint to SLCC, but again, hang on a minute, they then must then send it back to LSS. If any such person is not a solicitor then Option 2 applies.

So, by whatever route, his complaints disappear into the maw that is the regulation department, where it will be initially investigated by person or persons unknown, who themselves may be the object of the complaint, or at least report to that person. Or persons. Marking your own homework? I don’t think so! Auctor in rem suam, as they used to say.

And then, what if the complaint involves a solicitor; who then decides if it is worthy of prosecution? Initially, a committee who then pass it to an external fiscal, an experienced solicitor, who you may think has the final say. Not so. If a fiscal advised not once but twice not to to prosecute, but was then given an explicit instruction to do so, it runs.

You may not be aware that there is now a very real possibility that the society is going to do away with external fiscals, so all prosecutions will be “in house”. A cost saving exercise, I am told. So how does that make sense if LSS only lose possibly three prosecutions each year, and their avowed intention is to seek the removal of the Tribunal’s statutory I repeat, statutory, ability to award expenses as they think fit, which almost invariably means “expenses follow success”? Most of these fiscals are experienced and independent, and are a real strength in the current system. Without them – goodbye to any vestige of checks and balances.

Based on my client’s experience, questions must be raised as to whether the governance model is fit for purpose.

And as my client has observed, if you, as a complaints partner, having knowledge of a matter causing a client very real concerns which have been explicitly articulated to you, then refuse to engage with that client, point blank refuse to reveal the identity of any member of staff potentially involved in wrong doing, and further refuse to provide copies of relevant paperwork, then the regulation department would be the first to complain about your conduct and have you (quite rightly) hauled before a tribunal on a charge of professional misconduct.

So, what other remedies are left for my client? The involvement of an MSP? The justice secretary/ the minister of community safety? The committee reviewing the regulatory role of LSS? The fourth estate?

And all this because some in authority have the arrogance to act as though the rules which they promulgated, and which set the standard for the profession, should not apply to them. Maybe they haven’t read the first paragraph of their own website.

“We have an overarching objective of leading legal excellence, and strive to excel and to be a world-class professional body, understanding and serving the needs of our members and the public. As part of our regulatory duties, we set and uphold standards to ensure the provision of excellent legal services and ensure the public can have confidence in Scotland’s legal profession.”

Maybe there is still a bit more striving and upholding to be done.

If nothing else, this sad, unprovoked, saga indicates two things. First, the Scottish government review should be removing LSS immunity from freedom of information requests. And second, there can be little argument, on the facts of my client’s experience, that the sooner these matters are handed over to an independent and impartial body, the better.

The Scottish government genuinely want to get responses from high street solicitors. Many now wonder if LSS are responding as the voice of these traduced and hard working professionals, or simply with self preservation in mind.

It is not just for others. You should be responding to the Scottish government consultation using this link. Now. Or don’t complain!

Next time Caesar’s wife and the Fifth Labour of Hercules.

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