Footnotes
1. http://www.scotland.gov.uk/Resource/Doc/111789/0027239.pdf
2. Report on Competition in Professional Services, COM (2004) 83 final. Available at:http://europa.eu/scadplus/leg/en/lvb/l23015.htm
3. Report of the Review of the Regulatory Framework for Legal Services in England and Wales. Available at: http://www.legal-services-review.org.uk/content/report/report-chap.pdf
4. http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-07/sor1115-02.htm#Col3407
5. A super-complaint can be made to the OFT when a designated consumer body thinks that a feature, or combination of features, of a market is significantly harming consumers' interests. The Consumers' Association (which publishes " Which?") is such a designated body.
6. http://www.oft.gov.uk/shared_oft/super-complaints/oft946.pdf
7. http://www.scottish.parliament.uk/business/officialReports/meetingsParliament/or-07/sor1115-02.htm#Col3407
8. Ibid Cols 3414 and 3417 S3M-847
9. Regulation and business structures in the Scottish legal profession: Scottish Government policy statement on OFT response to Which? super-complaint.
10. Under the "cab-rank" rule an advocate is duty bound to accept instructions irrespective of personal preference, provided a reasonable fee is offered and an advocate is qualified and able to carry out the instructions.
11. Advocates are obliged to practise as sole practitioners by a rule which provides that "an advocate may not form a partnership with another advocate or any other person in connection with his or her practice". The Solicitors (Scotland) (Multi-Disciplinary Practices) Practice Rules 1991 provide that "a solicitor shall not form a legal relationship with a person or body who is not a solicitor with a view to their jointly offering professional services as a multidisciplinary practice to any person or body" (Solicitors (Scotland) (Multi-Disciplinary Practices) Practice Rules 1991, rule 4).
12. The Legal Profession and Legal Aid (Scotland) Act 2007 set up the Scottish Legal Complaints Commission as a gateway for all complaints.
13. There is an exception and this is any professionals granted rights under the provisions outlined at para 2.6.
14. The Research Working Group found that there were relatively low levels of competition in family law, debt, welfare, housing and consumer law, with supply problems in some areas - see paras 3.67-3.70 of their report (ibid).
15. www.scotland.gov.uk/Resource/Doc/111789/0027239.pdf, chapter 3.
16. http://www.advocates.org.uk/profession/services.html.
17. See, for example, definitions of legal services in Australia. In New South Wales, legal services are defined in the Legal Profession Act 2007, as amended, as "work done, or business transacted, in the capacity of a solicitor" ( http://www.parliament.nsw.gov.au). In Queensland, the Legal Profession Act 2007 defines legal services as "work done, or business transacted, in the ordinary course of legal practice" ( www.legislation.qld.gov.au/legisltn/current/l/legalproa07.pdf).
18. Such advice is not subject to statutory regulation, but the Government has supported measures to develop standards of good practice, such as the Homepoint scheme, which can provide reassurance to funders, the public and referral agencies.
19. Section 12 of the LSA 2007 (which does not extend to Scotland) states:
(a) (3) In this Act "legal activity" means-
(b) an activity which is a reserved legal activity within the meaning of this Act as originally enacted, and
(c) any other activity which consists of one or both of the following-
(i) the provision of legal advice or assistance in connection with the
(ii) application of the law or with any form of resolution of legal
(iii) disputes;
(iv) (ii) the provision of representation in connection with any matter
(v) concerning the application of the law or any form of resolution
(vi) of legal disputes.
(d) (4) But "legal activity" does not include any activity of a judicial or quasi-judicial nature (including acting as a mediator).
(e) (5) For the purposes of subsection (3) "legal dispute" includes a dispute as to any matter of fact the resolution of which is relevant to determining the nature of any person's legal rights or liabilities.
20. The restriction is in section 32(1)(c) of the Solicitors (Scotland) Act 1980.
21. This "back door" method is possible as section 61 of the Legal Profession and Legal Aid (Scotland) Act 2007 amends section 32(2) so that section 32(1) does not apply to a member of a body which has made a successful application under section 25 of the 1990 Act for rights acquired under section 27 of that Act.
22. In England and Wales, probate rights are granted under the provisions of section 55 of the Courts and Legal Services Act 1990.
23. See Regulation - Less is More: Reducing Burdens, Improving Outcomes, annex B, p51. The five principles of good regulation were identified by the Better Regulation Task Force (an independent group established in 1997 to advise the UK Government) against which the appropriateness and effectiveness of any type of regulation should be tested.
24. Section 1(2).
25. http://www.advocates.org.uk/downloads/guidetoconduct_5thedition.pdf.
26. http://www.opsi.gov.uk/acts/acts2007/ukpga_20070029_en_2#pt1-l1g1- part 1.
27. See Code of Conduct for Scottish Solicitors 2002 on the Society's website, www.lawscot.org.uk
28. Guide to the Professional Conduct of Advocates, 5th edition, op.cit. chapter 2.
29. http://www.scotland.gov.uk/News/Releases/2008/11/07110142.
30. These include:
a Bill to modernise and reform the law of arbitration in Scotland;
Wide-ranging reforms to summary criminal justice;
Following the final reports, responding to the Civil Courts Review led by Lord Gill, and the work of the Administrative Justice Steering Group chaired by Lord Philip;
consideration of proposals in the Business Expert and Law Forum report, including a strategy to promote Scotland as a centre of excellence in dispute resolution;
31. Such firms are the core of the profession, offering personal and accessible services to local communities across Scotland - although, as the Society notes, the trend towards consolidation of practices is already evident in some areas. See page 12 of the Society's policy paper.
32. As outlined in the Society's policy paper at page 12.
33. Rule 4 of the Solicitors (Scotland) Practice Rules 1991.
34. Solicitors (Scotland) (Multi-Disciplinary Practices) Practice Rules 1991.
35. Solicitors (Scotland) Act 1980 section 2.
36. http://www.lawscot.co.uk/Members_Information/council_info/opofcouncil.aspx.
37. Council of the Law Society of Scotland Act 2003 (asp 14).
38. Entitled: " Reforming Complaints Handling, Building Consumer Confidence: Regulation of the Legal Profession in Scotland".
39. Formerly the Scottish Consumer Council.
40. The General Medical Council ( GMC) is the regulatory body and the British Medical Association BMA acts as trade union and professional representative body.
41. Provisions for the Guarantee Fund are found in section 43 of the Solicitors (Scotland) Act 1980.
42. Provisions for solicitors' professional indemnity are found in section 44 of the Solicitors (Scotland) Act 1980.
43. The Guide to the Professional Conduct of Advocates, 5th edition (op. Cit.) paras 1.1.2 - 1.1.4.
44. http://www.advocates.org.uk/downloads/disciplinaryrules2008.pdf
45. As with the Society, CFS favour up to 75% non-advocate membership of the Faculty of Advocates' Council.
46. The Guide to the Professional Conduct of Advocates, paragraph 1.2.5
47. http://www.advocates.org.uk/news/news.html
48. See Lord Inglis in Batchelor v Patterson & Mackersy (1876) 3R. 914, discussed in the Guide to the Professional Conduct of Advocates, 5th edition, Chapter 1.
49. There is anecdotal evidence that even when a firm employed a solicitor, sometimes when a case was being dealt with by a non-lawyer, there was no legal opinion until this late stage.
50. See No win, no fee, no chance, Sandbach J, Citizens Advice, December 2004.
51. Better routes to redress, Better Regulation Task Force, 2004.
52. The regulator is the Secretary of State and the Ministry of Justice has a small team to deal with regulatory policy.
53. Claims management regulation: impact of regulation: one year assessment, Mark Boleat, Ministry of Justice, April 2008, pp 8-9.
54. Now CFS.
55. For example, the Scottish Consumer Council (now CFS) has written: "In principle, we believe that speculative fee arrangements may provide a useful means of increasing access to justice in some cases for those who are ineligible for legal aid and do not have access to other means of funding, such as a trade union or legal expenses insurance."