A Letter to the Editor of Scotland on Sunday 10 June 2012

I have been referred to in the Scotland on Sunday today. As there are a number of material inaccuracies in the article, and as there may be readers who come to this blog with the wrong impression, I reproduce below my response to it, which has been emailed to the Editor and posted as a comment on the Scotland on Sunday website.

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Dear Sir,

I refer to the article published in your newspaper today under the headline “Ten-year ban for solicitor who failed to pass on Scottish miners’ compensation”.

I wish to point out a number of inaccuracies in the article and trust that the appropriate corrections will be made to the online edition, and that a suitable correction notice will be placed in your newspaper.

First of all, the headline is incorrect. The sanction imposed, and I will refer to this again below, was not a “ban” but a restriction on working as a principal in a law firm ie a Partner. I am entitled to work as an employed solicitor with Law Society approval and under supervision by the firm for whom I work.

The reference to failing to pass on compensation implies dishonesty, and that any funds not passed on were kept by me.

It was accepted at the Tribunal by the Law Society and by the Tribunal that there was “no question of dishonesty”, and that “every penny of clients’ funds had been accounted for”.

Dealing with the specifics of the article, as referred to above, I have not been “barred from the profession”. I am permitted to work as an employed solicitor with Law Society approval and under supervision.

The fifth paragraph of the article repeats that I will not be permitted to work as a solicitor. Again, that is wrong. The statement that I will be allowed to work as a “legal assistant” implies that that is not a solicitor. As mentioned, that is not the case.

In the eleventh paragraph, reference is made to a “fine” having been imposed on the firm, contributing to the problems. That is incorrect and no such statement was made regarding a “fine”. Reference to a “fine” implies some form of wrongdoing. There was no such “fine”.

Your quote from Mrs Hunter is based on an inaccurate premise, as I am allowed to continue to practise, as referred to above. The accusation of “faking a fire alarm” is untrue.

As regards details of individual cases, client confidentiality prevents me making any specific comment.

I regret that there were cases where for the reasons explained at the hearing, clients’ affairs were not progressed as well as they should have been, and I apologise for that. However, over the time my firm operated, we had many thousands of satisfied clients, on whose behalf we had obtained justice. That does not excuse even one lapse, but I mention it for purposes of perspective.

I am posting this as a comment on your online piece, as well as emailing it to you.

I look forward to hearing from you as soon as possible.

 

Yours sincerely,

 

 

Paul McConville

 

Esto Law – Part 2 – Now Up And Running – Is It A Good Idea?

 

 

In response to my previous post regarding this matter, which I am very grateful to Steven Raeburn of the Firm Magazine for placing on its website also, I received a comment from John Scott, one of the principals of Esto Law.

He indicated a willingness to engage by answering any queries I might have in connection with the matter, and also later on came back to me to tell me that the website, http://www.estolaw.co.uk, was now up and running.

Very professional it looks too!

As I replied to Mr Scott, I suspect questions about the issue would best come from those, such as the Glasgow Bar Association, who are directly affected by the creation of this new entity.

I do want to offer a couple of thoughts regarding the contents of the site. I am sure that, if I have at all misunderstood the position, I will be corrected.

The “Mission Statement, if you will, for Esto Law runs as follows:-

“ESTO has been created by experienced criminal practitioners as an innovative service designed to assist hard pressed and overworked criminal lawyers when their clients face police station interviews as detailed in the ACPOS Manual. ESTO, unlike the traditional firm model, is designed for the sole purpose of assisting you with your representation of your client. Esto’s work in representing your client on your behalf begins and ends in the police station.”

(NB I have left in place the links in the various matters I quote from the site.)

On the face of that, who could have an issue? Having a firm cover the police station interviews without any risk of your client being “stolen”? Great – the hard pressed criminal sole practitioner can sleep soundly in his bed, rather than turning fitfully waiting for a post-Cadder type interview to jolt him from his slumbers.

Indeed, the site itself says:-

“ESTO aims to reduce not just the demands on your valuable time but to remove the constant worry of a telephone call requiring your immediate attendance at a police station.”

The next section of the site details how it would work in practice, saying:-

“Signing up is easy. All we need are basic details and a single, annual payment, currently just one percent of your firm’s criminal legal assistance fee income in the last year, according to the SLAB Annual Report. Solicitor advocate fees, VAT and outlays aren’t taken into account.”

There is also a link to the draft service contract to be entered into with a Client Firm.

From my discussions already with some criminal practitioners, the fee being sought, namely 1% of the Client Firm’s Criminal Legal Assistance fees for the previous year, seems to many to be grossly excessive. “A liberty” as one described it to me.

Indeed, the website suggests that this 1% deal may be the “introductory” rate, which would suggest an increase after a certain time has passed.

I assume that the wise folk of Esto Law have worked out how to charge a fee to a new firm, who d not have an income from the previous year – one assumes that the work is not being done for nothing!

The contract runs for 12 months. Whilst Esto can terminate it on 28 days notice, the Client Firm cannot do so, unless (a) there is an insolvency event (to adopt the language of the SPL Rule Book) or (b) “if the provisions for payment in terms of the Legal Aid Act Regulations or provisions regarding payment materially change following the commencement of this Agreement”.

 

One can see the potential for arguments about whether SLAB changes to the Legal Aid system qualify as material.

 

The cost of the agreement is, as I have mentioned, 1% of the Criminal Legal Assistance income of the solicitor. This applies whether or not the Client Firm decides that there will be certain offences, or categories of offence, where they still wish to see the client themselves. There is no discount for restricting what Esto are to do.

 

If we take as an average fee income of £100,000 per partner/fee earner in exclusively criminal practices, then, for £1,000 per year per person (or £20 per week) there is cover avoiding those late night calls.

 

Is it worth it to a firm turning over £100,000 in Criminal Legal Aid to pay £1,000 plus Vat for the service? It is obviously up to the individuals, but already some to whom I have spoken clearly do not see that as worthwhile.

 

In addition, and this is not to lay any accusation at the door of Esto, criminal clients can be fickle and, if they feel they are being taken for granted by their solicitor, especially if remanded in custody awaiting trial, some might feel that if their lawyer wants to stay in bed, they will instruct a solicitor who is prepared to see them. Esto’s terms are designed to prevent them taking on the client. But it would not stop the Client Firm potentially losing the client.

 

In terms of fees, the total sum paid by SLAB in fees for Criminal Legal Assistance, in the last annual report, was in excess of £81 million. If every firm in Scotland signed on with Esto, then this would give them over £800,000 of fees even before any of the Advice and Assistance fees mentioned below. Of course that will not happen, but one suspects that they are looking at a substantial number of the relevant firms signing up. A base income in the hundreds of thousands of pounds would (a) greatly reward the Directors and staff for the prescience and (b) guarantee, one assumes, a top level service.

 

Esto too will be paid a fee under Legal Advice and Assistance, if the client is eligible, for each attendance, as per their contract. That too has the potential for squabbling where an Advice and Assistance fee might be subsumed into the full Criminal Leal Aid fee. In addition, if ABWOR (Assistance By Way of Representation) is required by the Client Firm, how would a prior grant of Advice and Assistance cover in respect of Esto Law affect that?

 

It is here that we come back to the crux of the issue. It would not be unreasonable to assume that these practical issues have been discussed, whether in the context of the new venture or generally, with SLAB. If this was taking place when the Directors of Esto Law were wearing their Law Society Negotiating hats, then that might appear to some to suggest a conflict of interest.

 

It might simply be that these men, with their great understanding of the Criminal Legal Aid landscape post-Cadder, have seen the way in which an innovation can (a) help the hard pressed practitioner and (b) make them some money. What, one might ask, is wrong with that? Surely innovation and novel ways of dealing with new problems should be welcomed?

 

The answer may be nothing, but as more than one commentator has said today, as well as doing the right thing, it is important in law to be seen to be doing the right thing. Now that, as mentioned, the GBA for example have raised specific questions, I would not propose to trouble John Scott for example with queries arising from this blog, but, as I mentioned at the start, I am happy to be corrected if guilty of any misunderstandings.

 

In one view, this is a business launch to match the creation of New Coke – a dramatic change which sickened the propective customers.

What Is Esto Law? And Why is the Glasgow Bar Common Room Seething?

John McGovern is one of the hardest working and best lawyers at the Glasgow criminal Bar.

He is also a prolific Twitterer. On Saturday, he tweeted the following:-

 

Ain’t seen an angrier Bar Common Room than Glasgow Sheriff Court yesterday. What you got to say about this one @lawscot? Your Esto position?

 

What had upset him?

On 10^th October 2011 a company called Place D’Or 712 Ltd was formed, with its Registered Office care of Peterkins Solicitors in Aberdeen.

On 7^th November the company changed its name to Esto Law Ltd. On 24^th November the Registered Office was changed to 1 George Square, Glasgow.

On the same day, 24^th November, seven directors were appointed. These were Ken Dalling, Vincent McGovern, John Scott, Ian Bryce, Neil Robertson, John Keenan and Stuart Munro. They are all solicitors. More than this however, the first four were, until the recent resignations of Ian Bryce and Ken Dalling, members of the Law Society of Scotland Legal Aid Negotiating Team.

The system of Criminal Legal Aid has suffered what some practitioners have described as “death by a thousand cuts” over recent years. The rates of pay are being eroded – more work is expected for less pay.

The Glasgow Bar Association reacted furiously when the Scottish Legal Aid Board cut the money paid for criminal defence work in JP Courts. Glasgow JP Court, being extraordinarily busy, has a number of Stipendiary Magistrates sitting, whose powers of sentencing equate to those of a Sheriff in summary proceedings. However, the cut of pay disproportionately affected solicitors who worked in Glasgow JP Court. Some complained that they had been sold down the river by the Law Society Negotiating Team who had, in the eyes of many, failed to stand up for the Society’s members in Glasgow. The Glasgow Bar Association has also felt marginalized, as it has perceived itself to have been denied representation on the Negotiating Team since 2008.

In addition, the cut in fees for the Stipendiary JP courts was, in fact, suggested by the Negotiating Team to SLAB, without consultation with the GBA, or indeed any Glasgow criminal solicitor. Many viewed this as the Negotiating Team being happy to sacrifice interests of the GBA membership in favour of the wider Law Society membership. Whilst that, per se, might not be unreasonable, the very least the GBA could have expected would have been consultation, rather than a fait accompli. John McGovern, at the time the head of the GBA, voiced his concerns about the issue in the Firm magazine. The perception was not that this was a decision made to balance interests of members across Scotland, but to” punish” the GBA for its impertinence.

The massive upheaval which occurred after the Supreme Court’s decision in the Cadder case allowed SLAB to further shift the goal posts. Significant and onerous changes were brought about to the Duty Solicitor scheme, following the decision that the practice of questioning suspects in police stations without the suspect having had the opportunity of speaking to a solicitor was illegal and evidence obtained in that way was inadmissible.

The bulk of the criminal solicitors in Scotland boycotted the original “new” Duty Plans. This brought concern that SLAB would use this opportunity to give significantly more work to the Public Defence Solicitors Office. Whilst there were some changes made to the scheme, these fell far short of what many solicitors wanted, but the Law Society Negotiating Team hailed the changes as a good deal. There were more than a few rumblings of discontent.

The criminal Bar fears the action that SLAB might take, without intervention by the Law Society as far as some are concerned, will make it even harder to carry out this work. Many are concerned that ultimately SLAB wants to make the role of the PDSO mandatory if a client wishes to receive criminal Legal Aid. Alternatively, following the model of Legal Aid in England, there are fears of “franchising”.

That then leads us to the news which broke on Friday. Four members, or recent members, of the Law Society Negotiating Team, along with three others, had set up this new company, Esto Law Ltd. It does not appear that any of them are leaving their existing firms for the new entity.

Why would solicitors from Glasgow, Livingston, Edinburgh, Wishaw and Stirling combine to form a practice based in Glasgow?

The concern I have heard expressed is that this is the first step to there being a criminal Legal Aid franchise in central Scotland. The people in the Law Society who would have the best idea of the SLAB plans are the Negotiating Team. It seems unlikely that they would have formed the new entity on a whim, or a wing and a prayer.

Long standing criminal practitioners, like John McGovern, are clearly very concerned for their livelihoods, but more so for the ability of the profession to carry out its vital role in the criminal justice system.

Criminal Legal Aid work is not popular outside its practitioners. The public see the “guilty” being defended. They ask how lawyers can defend “people they know are guilty”. The police, some of them, feel that the defence lawyers are simply “getting the criminals off”.  From time to time, and clearly unjustly, defence solicitors get the feeling that they are seen as nothing but nuisances by the Bench.

But they do a vital job, testing the Crown case and representing and assisting some of the most disadvantaged in our country. Many “criminals” become so as a result of problems such as drug abuse etc. That is not to excuse them, but it is a fact, and if the cycle of offending is to be broken then ironically the ability of criminal defence lawyers to put across their client’s position clearly, and to explain what is happening to the client, plays an important role in that.

When the team negotiating with SLAB as to the future goes off and, almost in its entirety, sets up a new company, outside the geographical areas where many of them are based, is it unreasonable to be concerned?

Civil servants and politicians now face restrictions on jumping from government straight into an industry position related to the area of their responsibilities. The creation of Esto Law looks as if it falls into that category too.

There may be nothing in this at all, but so far, as I understand it, the Law Society has made no comment, and nor have the solicitors in question, although a PR offensive is expected imminently.

To make it worse, Mr Bryce is standing for election as the Vice President of the Law Society, and if successful, will by convention become President the following year, without an election. Does a prospective President have an obligation to the profession not to be seen, even incorrectly, to be behaving in what some of the more polite lawyers have called a “sleekit” manner?

Mr Bryce stood down from the Committee citing his wish to spend more time with his family. Clearly this opportunity arose following that to take up a little of the free time he had created for himself.

Until there is a clear response, excellent lawyers like John McGovern, and solicitors across the Bar Common Rooms of Central Scotland, will be right to be angered by the lack of information, and concern as to the future.

 

 

 

The Coming Bonfire – Lessons from Guy Fawkes for the Scottish Legal Profession?

 

 

Austin Lafferty, Vice President of the Law Society of Scotland, and Walter Semple, Law Society Council member, last week used the electronic pages of The Firm to discuss the coming “ABS tsunami”.

The highly esteemed gentlemen fail to see eye to eye on the role of the Society in how the profession got to this point, but each acknowledges the struggles which lie ahead, with Mr Lafferty bluntly saying “the core workstreams of many firms will be decimated, with obvious consequences.”

Conveniently for the days after 5^th November, the blogger Guido Fawkes, normally one for hot-off-the-press political gossip, has written a piece about the role of the investment banks in the global financial crash, prompted by his having read the excellent and chilling “The Big Short” by Michael Lewis. Anyone wanting to understand the limitless greed and stupidity which brought the financial world to a halt should read Mr Lewis’ book.

Dealing with investment bankers, Guido, as a former investment banker himself, points out when the rot set in at the major institutions. He describes one of the problems as the fact “that investment banks were no longer partnerships; they were publicly listed companies, with shareholders who were not involved in day-to-day management. This has proved to be a disastrous form of capitalism, with owners who don’t know what the managers of their money are doing.”

Investment banking, till the early 1980’s, was carried out by partnerships made up of investment bankers. The capital in the firms, and the risks, were both the responsibility of the partners. As Guido says “the oldest and most experienced partners tended to have the most capital in the firm. This had a risk management effect greater than any Nobel Prize winning computer-calculated risk model, the old guy with the grey hair stood to lose everything when some testosterone charged 27 year-old trader bet the firm’s capital … The bosses’ desire to keep their retirement pots concentrated their minds”.

Stock market listing, and external ownership, such as that brought in by the Big Bang during the Thatcher years lead to a situation where the providers of the capital, and therefore those bearing the risk, were no longer in any control of that risk. Is it a coincidence that Collateralised Debt Obligations and the rest of the alphabet soup which made up the speculative “investments” at the root of the crash were financial instruments dreamed up by the corporate whizz kids on massive salaries, but who stood only to lose their jobs if they got it wrong, rather than everything they owned?

As Guido says “There is nothing moral in asymmetric markets where the risks are borne by others than those taking the risks.”

The Scottish legal profession faces an imminent and huge upheaval. As Mr Lafferty says, “The threat…is that the high street legal market will get hoovered up like the high street optical market has been, in which 80 per cent of the trade is owned by a tiny number of brand names.” As a profession, solicitors “need to be sales-savvy, market-alert, entrepreneurial” to avoid “having to watch as companies with increasingly bizarre names and brands try to elbow their less-qualified way into the market place. “

Mr Semple, expressing a concern going further than merely commercial and marketing matters, warns that “(The Law Society has) been presiding over a potential catastrophe for many solicitors in Scotland which was entirely avoidable. … The changes in the Legal Services legislation now require solicitors to act independently (rather than be independent)…This change will compromise the independence of solicitors who offer services to the public. External owners of legal service providers will not be directly bound by solicitors’ ethics. They will be motivated only by commercial interests.” (Emphasis added.)

I have no doubt that investment bankers, in the old days, were as a rule, as professional and ethical as solicitors. However, the passage of time, and the loosening of the direct connection between capital and risk, allowed corners to be cut, and edges to be shaved, all in the interest of profit. The creators of the wacky financial “instruments” described by Mr Lewis were not unethical either. But, as I mentioned above, is it coincidental that they were only created once the capital/risk link was broken, or at best severely stretched? Financial backers will want a dividend on their money – we are in a capitalist society after all, and pressures will inevitably increase on legal businesses under ABS to provide a good return on their investors’ capital. Over time, as with the investment banks, things are likely to slip.

Even although the ABS model to be applied here is not (yet) full flotation, the twin risks identified by Messrs Semple and Fawkes place the profession at great risk. The “liberalisation” of the financial markets too was intended to allow greater competition, and permit the investment banks to act outwith the hidebound old rules, whilst of course remaining true to their ethics, thus allowing them to increase their profitability, both for the banks themselves and their investors and backers. We can see, laid out in Mr Lewis’ book, and indeed on the news daily, where that led to.

Self-interest is a necessary human trait, and who could fault a partner at a big practice who sees the possibility of their business floating, with a huge windfall for the people lucky enough to be owners when the music stops? It seems inevitable that, as time progresses, the restrictions in place in the imminent ABS structure will fall away, as they are seen as being “anti-competitive” or still as leaving legal businesses at a “financial disadvantage” in raising capital, as compared with other professions. Full flotation will come in due time, even though there are probably only a handful of firms where, in reality, this will have any substantial direct effect. It is unlikely that, for example, even the best High Street one-man criminal practice will be able to have an IPO!

Mr Lafferty refers to the “ABS tsunami”. As we have tragically seen in real life, if a tsunami is already on its way towards you, then there is nothing which will stop it.