The Scottish Government

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Linda Nicholson
The Research Shop

ISBN 978 0 7559 7693 5 (Web only publication)

This document is also available in pdf format (572k)

CONTENTS

ACKNOWLEDGEMENTS

1 EXECUTIVE SUMMARY

2 THE CONSULTATION PROCESS

3 ALTERNATIVE BUSINESS STRUCTURES
Summary
Q1: Do you agree that alternate business structures ( ABS) should be permitted for the provision of legal services by solicitors in Scotland?
Q2: Are there any of the 3 business structures described which should not be permitted?
Q3: Are there any of these 3 business structures which should be permitted but which you feel would require additional safeguards?
Q4: Should there be any change to the present arrangements for regulating licensed conveyancers and executry practitioners, or those with rights of audience, as described in paragraphs 2.5 to 2.9 (of the consultation document)?

4 WHO WILL BE AFFECTED BY THE BILL?
Summary
Q5: Should the areas of business reserved to legal professionals as described remain as now?
Q6: Do you support the proposals that the bill should focus on the regulation of legal professionals and businesses where legal professionals are involved in the provision of legal services to third parties (for the reasons given in paragraph 3.8)?
Q7: Do you agree that (subject to the issues discussed in chapters 7 and 8 of the consultation document), the arrangements for regulation of solicitors and advocates in traditional forms of practice should remain as they are now?
Q8: Do you think that provisions to allow applications for confirmation rights, as described, should be included in the bill?

5 PRINCIPLES OF REGULATION
Summary
Q9: Do you agree that there should be a statement of regulatory objectives for providing legal services in ABS as proposed?
Q10: Do you agree that regulatory objectives should be supplemented by considerations which should guide the actions of regulators, as proposed?
Q11: Do you agree that there should be a statement of professional principles for those providing legal services in ABS as proposed?
Q12: Are there any amendments which should be made to the government's proposed listings of regulatory objectives, considerations which should guide the actions of regulators, or statement of professional principles for those providing legal services?
Q13: Do you agree that it should be possible for regulators to grant conditions of licence or to refuse a licence to operate an ABS where there is demonstrable evidence of a risk to access to justice?
Q14: Do you have any other suggestions as to how the regulatory objective of promoting access to justice can best be achieved?

6 THE REGULATORY APPROACH
Summary
Q15: Do you agree that ABS should be regulated at the entity level, with individual professionals regulated by their own professional bodies, as set out above?
Q16: Do you agree with our proposals for defining the ABS?
Q17: Do you agree with our proposals for dealing with regulatory conflict as set out?
Q18: Do you have any views on how the legal professional privilege should be protected in an ABS?
Q19: Do you have any views on the setting up of some form of advisory panel to advise ministers on applications as described?
Q20: Do you agree that ministers, with the agreement of the lord president, should authorise ABS regulators as proposed?
Q21: Do you agree that the bill should set out the criteria for authorisation of ABS regulators, and that these criteria should relate to organisational capacity, independence, and an appropriate regulatory scheme?

7 OWNERSHIP OF LEGAL SERVICES
Summary
Q22: Do you agree that there should be a "fit to own" test specified by the ABS regulator which should apply to anyone owning or acting as a principal in ABS as proposed?
Q23: Do you agree with the details of the test as proposed?
Q24: Do you agree that the proposals provide sufficient safeguards to ensure that professional principles are not compromised in ABS which are externally owned?
Q25: Do you have any views on the proposals for a head of legal services and head of practice or, alternatively, a practice committee for ensuring ethical and practice standards in ABS owned by non-legal owners?

8 LAW SOCIETY OF SCOTLAND
Summary
Q26: Should changes be made to the society's governance arrangements, for example, in relation to the size of the council, frequency of meetings and decision making powers?
Q27: Do you agree that there should be significant non-lawyer membership on the council of the society?
Q28: Should the representation and regulatory roles of the society be split as proposed by the office of fair trading?
Q29: Should the guarantee fund or an equivalent provision be required for ABS?
Q30: Should the liability under the guarantee fund be capped, either for individual claims, or the overall liability?
Q31: Are there any particular provisions which are required in relation to professional indemnity insurance for ABS, beyond what is set out?

9 THE FACULTY OF ADVOCATES
Summary
Q32: Do you agree that the faculty should not be required to allow its members to form partnerships or participate in ABS, provided that those wishing to do so can easily become solicitor advocates?
Q33: Do you believe that the regulatory framework of the faculty should be organised into a code set out in law?
Q34: Do you believe that the regulatory framework of the faculty described in paragraphs 8.1 to 8.10 (of the consultation document) should be changed in any respect?

10 REGULATION OF CLAIMS MANAGEMENT
Summary
Q35: Do you consider that regulation of claims management companies operating in Scotland is necessary?
Q36: If you think that regulation is necessary, which option do you favour?
Q37: Are you aware of any issues in Scotland with "no win, no fee" arrangements where the cost to the client was greater than the award?
Q38: Are you aware of any poor practices by claims management companies in Scotland, for example: questionable advertising, and/or practices such as cold calling, market stalls, or approaching people in hospital in Scotland, and/or inappropriate pressure to settle a claim?

ANNEX 1: VOLUME OF RESPONSE TO EACH CONSULTATION QUESTION

ANNEX 2: LIST OF ORGANISATIONS RESPONDING TO THE CONSULTATION

The views expressed in this report are those of the researcher and
do not necessarily represent those of the Department or Scottish Ministers.

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