of the law society of scotland

Transcription

VOLUME 47 NO 6 JUNE 2002
THE
JOURNAL
O F T H E L AW SOC I E T Y O F S C OT L A N D
THE FUTURE IN
YO U R H A N D S :
LOOK FOR NEW PERSPECTIVES
FAC U LT Y O F A DVO C AT E S :
DEAN WRITES OF
CHANGING TIMES
Q UA L I F Y I N G I N
N E W YO R K :
A PERSONAL ACCOUNT
Contents
18
Opinion
Margaret Scanlan argues against an English judgment which
states that mothers make better parents.
19
JUNE 2002
VOLUME 47
NO 6
Faculty of Advocates
Dean Colin Campbell QC warns against complacency.
Regulars
22
The Future in your Hands
5
President’s Report
7
News
14
People
16
Letters
35
Information Technology
43
Website Reviews
44
Criminal Court
46
Risk Management
49
Professional Practice
50
Europe
Conference
52
Plain Speaking
Images from the Society’s joint conference with their
Northern Ireland counterparts at St Andrews last month.
53
Books
54
Notifications
Mark Powers presents a visual of how things could
be if we change our conventional ways of running firms.
28
MDPs
Despite Nova, John Elliot argues in favour of client choice.
30
Qualifying in New York
Karyn Watt on fullfilling a personal ambition.
32
Budget
Alan Barr’s guide to avoiding the traps.
38
41
Case Management
Members
of the Periodical
Publishers Association
After a hesitant start firms seem to be embracing technology.
e: journal@connectcommunications.co.uk
3
June 2002 Volume 47 No 6
Journal
President
David Preston hopes to bring some of his sailing skills
to his tenure as President of the Society.There are more
analogies than you might imagine, in particular
you can’t sail straight into the wind.
IN last month’s Journal interview, I said I would
bring a gentle hand to the tiller during my
presidency. I enjoy sailing, which is partly why I live
and work in Oban. I also enjoy being a solicitor, so
managing the balance of work with sailing – and of
course my family and friends – is important.
Sailing provides some useful analogies, especially
for my work with the Society this year.
The Society has the basic requirements of a yacht:
enough water to keep it afloat; enough wind to keep it
moving, (not too much) and an experienced crew to
handle the winches, pull ropes, produce sustenance
and refreshments from the galley and do much of the
hard graft.
I chose to work in a profession based on core values, which
include independence and client confidentiality and thrives
on knowledge, experience and adaptability.
The Society’s work is comparable to sailing a boat to a
destination as directly and safely as possible, without
going aground.The direction steered is influenced by the
way the wind is blowing, the tides and the lay of the
shoreline. I have been involved with many of the issues
facing the profession as a practitioner and as Vice
President. I have worked closely with Martin and
Douglas and as I take the helm for my watch, I know our
direction, the crew and the lay of the land without
having to stop, start from scratch or make radical or
unnecessary changes.
Navigation and preparation are essential. The land
doesn’t usually move, but tides change the distance
between the surface of the water (where we want to
be) and the hard bit below, (where we don’t) so we
must avoid going aground. The tide direction, strength
and influence can be predicted. The weather forecast
gives guidance on whether to set sail - if we have that
choice. On the journey, other factors come into play,
such as the local anomalies with the tide and wind as
well as other boats, bigger and smaller, sailing similar
courses.
As with work and life in general, we can’t always sail in
a straight line to our destination. You can’t sail straight
into the wind because the sails adopt the characteristics
of a flag – and flagpoles are noted for their lack of
forward motion. So we sail at an angle to the wind,
‘tacking’ or changing direction regularly but always
moving forwards in the right direction. Tacking is
strategically sensible to get as close as possible to our
destination, (although in my own sailing experience, the
First Mate has been known to forbid a tack which would
put the deck in the shade, requiring me to fetch her
jumper). Similarly the Society heeds the demands of its
members, and considers the calls for “Change!” as well
as the calls for “No change!”
Tacking can be tricky: if underdone we revert to the flag
scenario; if overdone we go back and forward making
no real progress - going nowhere fast. If we are lucky, the
wind will blow in our direction and we can run with it.
That makes life easier as long as a weather eye is kept
on changing conditions.
So I hope to bring a gentle hand to the tiller for my
watch and use the experience as well as the plans in
progress to deal with what lies ahead whether it is
regulation, legal aid, legislation or some as yet unknown
challenge.
I chose to work in a profession based on core values,
which include independence and client confidentiality
and thrives on knowledge, experience and adaptability.
Change is a key to success provided we know whether
we are tacking towards our destination or fundamentally
changing direction and whether the change is out of
necessity or for comfort. It is, after all strategic ability
along with business knowledge which turns our
knowledge of the law and experience into success.
By the time you read this, the Council will have held an
‘away-day’ (or rather morning) in Edinburgh to discuss
the size and procedures of Council. Are changes
necessary? Would we rather sit in the sun for a while
and risk hitting the rocks or do we change now?
I will report on progress in the next Journal and would
be happy to hear your views.
5
Journal
News Inside
8
9
10
11
12
8
Case Reports Website
9
Conveyancing Roadshow
11
Investors in People
8
Medical Records
10
Mortgage Code Compliance
12
World Law Group
9
Paralegal President
10
Future Regulation of Mortgages
12
Benevolent Golf Day
Recognising service to children
SCOTTISH solicitor Stephen Cullen has been
named Volunteer of the Year by the National
Centre for Missing and Exploited Children in
Washington DC in recognition of the pro
bono work he does in tracing missing children.
He received the award at a ceremony in the
Great Hall at the US Department of Justice
following a Congressional breakfast at Capitol
Hill.
Stephen Cullen, who specialises in medical
malpractice and commercial litigation at US firm
Miles & Stockbridge LLP in Baltimore, Maryland,
is considered one of the leading experts in
handling international and inter-state child
abduction cases and has helped return home
more than 60 children since he began
volunteering five years ago.
The presentation citation said: “No single
attorney has been more willing or more reliable
than Stephen. Stephen’s legal talent has raised the
level of legal service and helped mould case law
in the area of Hague litigation in the US.
“Stephen Cullen is one of those rare and
precious individuals who is willing to turn his own
difficult personal experience into his greatest
strength by helping other parents experiencing
the same pain negotiate their way through the
difficult and frustrating legal maze regardless of
their ability to pay. Yet the hours he’s invested
helping these families adds up to thousands of
dollars in donated service.
“Stephen is dedicated to helping children
maintain a relationship with both parents. He is
able to be both passionate about the cause of
returning children and meticulous about the legal
process needed to get there.
“We accuse Stephen of using his Scottish brogue
to impress the judges but in reality we know that
Stephen speaks from both his heart and his head
and when he does so, judges listen.
“Judges are often hesitant to engage in these
delicate cases, especially in the federal courts that
are not used to dealing with family cases.
Stephen is able to help judges see what is
possible and present the legal basis enabling them
to do the right thing.
“For Stephen, it is not about winning or losing, it
is about ensuring that the family involved has a
chance to work out a solution so that the
children can know and love both parents.”
Stephen Cullen trained with Tods Murray,
Edinburgh and tutored in delict and taxation at
the University of Edinburgh before moving to
the US.
He told The Journal: “It’s nice that a Scottish
solicitor is being recognised. I saw an advert in the
Maryland equivalent of The Journal saying they
were looking for attorneys to handle cases
involving children and that there was no funding
provided in the US under legal aid.
“I responded to that. I was a school teacher in
Scotland, so have always had an interest in the
welfare of children and after doing one pro bono
case realised there was a desperate need for
people to help. Since then we’ve successfully
returned children all around the world, including
two in Scotland, and one where the parent had
been separated from their child for 15 years.
“We help both locate the children and once they
are located to bring the appropriate court
proceedings to return them.The plight of missing
children is one of the scourges of American
society.This work is very satisfying and gives me a
good reason to have gone to the Faculty of Law
at Edinburgh University all these years ago.
“It is a great thing to be able to go into court and
say I’m from Scotland. First and foremost I still
think of myself as a Scottish lawyer.”
7
Journal
News
Authors Wanted Case Reports now available online
The Society has a joint books
agreement with the publishers
Butterworths, the express purpose
of which is “to ensure that there
continues to be made available to
the Society’s members and the
legal profession in Scotland a
range of books and publications
on
Scots law and legal practice and
related subjects.”
The Society and Butterworths
would welcome suggested book
topics and authors willing to write
under the joint books programme.
All suggestions should be sent to:
Jennifer Blair, Commissioning Editor
(Scotland), Butterworths,
4 Hill Street, Edinburgh
EH2 3JZ or DX ED 211
or
e-mail Jennifer at
jenniferblair@butterworths.co.uk
The Law Society of Scotland and LexisNexis
Butterworths Scotland have joined forces again, this time
to launch Scottish Case Reports Direct.This new service
is destined to be the premier Scottish online case
service, providing an archive of more than 5,000
important and interesting case
reports allied to an up-to-date
and accurate digest service.
Scottish Case Reports Direct
comprises all of the case
reports, commentaries, notes
and quantum reports which
appear in the Society’s highly
regarded Scottish Criminal Case
Reports and Scottish Civil Law
Repor ts, together with
Butterworths Scottish Case
Digests Online. Quick and easy-to-use search facilities
enable subscribers to find what they are looking for in a
fraction of the time it would take with the books.
A flexible subscription service is being offered - it is possible
to subscribe to the whole service or to each series singly.
Scottish Case Digests Online is provided free of charge to
subscribers who subscribe to both or to either one of the
criminal or civil reports. The reports contain hypertext
links to other reports in Scottish Case Reports Direct as
well as to Butterworths other major online case services
(All England Direct and The Law Reports).
The first online joint venture of Butterworths and the
Law Society of Scotland was of
course Laws of Scotland Online
(the electronic version of the
Stair Memorial Encyclopaedia).
From Laws of Scotland Online
there are thousands of
references to SCCR and SCLR
and these can be easily accessed
by hypertext links.Together with
Scottish Legislation Direct, these
three services provide an
impressive library of Scots law
online - Scots Law Direct.
Users of hard-copy SCCR and SCLR have frequently
asked that the cases be made available online and it is
expected that this new service will quickly establish itself
as essential for the profession.
Free trials of this new service are available by calling
LexisNexis Butterworths Scotland on 0845 608 1188 or
by visiting their website – www.butterworthsscotland.com.
Request for copies of medical records
The Judicial Procedure Committee have considered the question of
requests for copies of client’s medical records from the client’s general
practitioner. There has been concern about a lack of clarity in such
requests. The Committee feel that solicitors should give proper
specification of what records actually need to be copied for the particular
matter in hand, to avoid records which are irrelevant to the claim being
copied. It is appreciated that with some personal injury claims –
particularly those involving back injuries – a fuller history will be required
than for matters such as a broken limb. If records prior to an
accident/incident are required the period should be specified.
International Bar Association
conference – Durban,
October 2002
As reported in last month’s news pages, the International Bar Association
(IBA) – the world’s largest international lawyers organisation – will be
holding its annual conference in Durban, South Africa, in October this year.
The conference will bring together something in the region of 3,000
delegates and 800 speakers to discuss and debate a wide-range of
international legal issues, and over the five days of the programme there will
be 100 working sessions covering everything from international cartels to
access to justice. For further information and a copy of the preliminary
programme, see the IBA website (www.ibanet.org/Durban) or contact
Carol Nightingale at the Society (carolnightingale@lawscot.org.uk;
tel: 0131 476 8132; fax: 0131 225 4243). If you do decide to attend the
conference, we would be grateful if you could contact us in advance to let
us know so that you can be included in any activities organised by the
Society for Scottish delegates.
8
Journal
News
New Paralegal
President
Information from
the Registers
Kevin Brown has been appointed the first male
President in the ten year history of the Scottish
Paralegal Association.
A member of Dundas&Wilson’s licensing team, he
takes over the role of promoting the interests of
Scotland’s paralegals.
“It’s an honour to take over the presidency of SPA and
I’m looking forward to the tasks that lie ahead,” said
Kevin Brown.
“The role of the paralegal is becoming ever more
important in the legal sector and this is increasingly
being recognised by many firms throughout the
country.”
Conveyancing roadshow arrives in Perth
Following on from its highly successful
Roadshows in Inverness, Dundee,
Oban, Edinburgh and Dumfries the
Conveyancing Committee is
continuing its national circuit with a
fur ther Conveyancer s Question
Time, this time to be held in the AK
Bell Library in Perth. The free open
panel session will take place on 1 July
2002 at 5:30pm. Refreshments will
be available from 5pm.
Stimulating and enjoyable, we intend
to follow the format of previous
evenings. The two-hour session will
include a number of high calibre
speakers who will comment on
different topics affecting all Scottish
conveyancers. There will also be
plenty of time for questions and
debate.
The Panel members are well known
for their grasp of their subject and
their ability to communicate with a
touch of humour. We have high
hopes that the event will be as
stimulating and enjoyable an
experience as the previous
Roadshows. It is proposed that Roddy
Paisley, Professor of Commercial
Property at Aberdeen University, will
talk about recent legislation and Bills
current or about to be put to the
Scottish Parliament. Paul Carnan, sole
practitioner in Glasgow, will briefly
discuss the CML Lenders’ Handbook
and the importance of being aware of
its provisions. He will also report to
the meeting about the Committee’s
annual meeting with the CML.
Professor Stewart Brymer, the
Committee’s Convener, will discuss
the work of the Committee and this
will be your opportunity to let him
know which issues you feel the
Committee should be considering in
greater depth. Alistair Rennie, Deputy
Keeper, will discuss e-commerce,
recent developments at the Registers
of Scotland and possibly the review of
the 1979 Act. There will be a further
opportunity for questions before we
close the session.
If you have any questions you would
like to put to the Panel at the
meeting on 1 July I would be grateful
if you would e-mail these to me in
advance. I would also be grateful if
you would e-mail my secretary
Sharon McFarlane at the Society at
sharonmcfarlane@lawscot.org.uk to
confirm that you intend to be at the
Roadshow. We need to keep an eye
on numbers to ensure that
everyone can be accommodated.
Linsey J Lewin
Conveyancing Committee Secretary
turnaround times
The current average turnaround
times in working days from the
Registers of Scotland are
as follows:
Sasine Writs
13 working days
with a maximum of 17 days
for the latest County
Unattached Dealings with Whole*
13 working days
with a maximum of 25 days
for the latest County
* An unattached Dealing with whole
is a Dealing which is not dependent
on the processing of a prior
First Registration, Transfer of Part or
Dealing with Whole for its
completion.
The published Agency turnaround
times for the Land Register is an
attempt to capture the elapsed
time that an application is in the
Keeper’s hands and is capable of
being processed by his staff.The
only period of time not included in
the turnaround time measurement
is that time where a requisition has
been raised with the submitting
agent.Turnaround times are
calculated at the point where the
finished Land Certificate is
despatched to the Agent. For
obvious reasons Saturdays and
Sundays are not included in the
measurement taken.
The turnaround time in the Sasine
Register is purely the elapsed time
(once again without Saturdays and
Sundays) as writs which are
withdrawn during the recording
process are excluded from the
turnaround time calculation.
Property enquiry
certificates
The Conveyancing Committee recently considered correspondence sent
to it by the Commissioner for Local Administration in Scotland. This
concerned council house sales and whether or not property enquiry
certificates should be obtained in these transactions.
The Committee’s view is that if a loan is being obtained over a property,
a property enquiry certificate should be obtained unless there is a specific
waiver from the lender. This in the Committee’s view applies to all
conveyances whether of council houses or private dwellings.
The latest in the round of faculty visits saw Martin McAllister and David
Preston and the Society’s Client Relations Director Philip Yelland visit Shetland.
9
Journal
News
Obituary
BRIAN DEREK BLASS,
(retired solicitor), Pavenham,
Bedfordshire
On 5th May 2002, Brian Derek
Blass, former partner of the firm
Robertson, Neilson & Co,
Glasgow, and latterly Denton,
Wilde Sapte, Milton Keynes.
Accounting for Commission arising from Incidental
Investment Business and from Introductions
The Society’s new incidental investment business regime imposes particular requirements on firms licensed for
incidental investment business in relation to the accounting of commission to clients. A firm licensed for
incidental investment business has one of two options with regard to the accounting for such commission.
The first option is that the firm directly accounts for any commission to the client by giving the client any
commission received from a financial services adviser or company. The second option is that any commission is
retained by the firm but only through offsetting of such commission against a firm’s professional fees.
Furthermore, the client must agree in writing in advance to such offsetting of commission.
AGE: 46
ADMITTED: 1979
A firm, whether it is licensed for incidental investment business or not (excluding those firms which are
authorised by the FSA) which makes an introduction to an independent financial adviser must also account for
any commission arising from such an introduction. The introductory commission must be used to offset the
professional fees of the firm making the introduction to the independent financial adviser.
Sheriffs’
Association
Mortgage Code Compliance Board (MCCB) Training Requirements
At the recent AGM, the following
were elected as office bearers.
President
Sheriff RJD Scott
Vice President
Sheriff BA Lockhart
Secretary
Sheriff H Matthews QC
Rate of interest
on landed
securities
The Commissioners on the rate
of interest on Landed Securities
in Scotland have resolved that the
rate of interest on such First
Class Landed Securities shall be
51/4% per annum for the six
months from and after the term
of Whitsunday (28 May) 2002.
The MCCB’s fitness and competence requirements provide that any adviser undertaking mortgage advice must have
completed either the Certificate in Mortgage Advice & Practice (CeMAP), or be FPC or CeFA qualified and have
passed either the CeMAP “Bridge Paper” of the Mortgage Advice Qualification (MAQ) by 31st December 2002.
Advisers who do not meet this requirement by 31st December will, under the MCCB rules no longer be able to
advise on mortgages except under supervision by a qualified adviser. Further details of the above examination
requirements are obtainable from the MCCB, University Court, Stafford. ST18 OGN, telephone 01785 218200. The
MCCB’s website is www.mortgagecode.org.uk
The Future Regulation of Mortgages
In December 2001, the Economic Secretary to the Treasury announced that the Financial Services Authority
(FSA) would have future responsibility for regulating mortgage business, including mortgage advice, whether
carried on by intermediaries or lenders. The Treasury has now advised the Society that the start date for the
future regulation of mortgages by the FSA is now envisaged to be in the second quarter of 2004.
The Financial Services & Markets Act 2000 Part XX provides that a member of a professional body designated
by the Government (which the Society is) may carry on regulated activities without being authorised by the
Financial Services Authority. The Government proposes to apply the Part XX regime to the activities of
mortgage advice and arranging in the same way as it currently applies to the activities of investment advice and
arranging. This means that professionals will be able to carry on the new activity or mortgage arranging under
the Part XX regime and will also be able to carry on the new activity of mortgage advice without requiring
authorisation from the FSA.
Financial Services
Authority –
clarification of
approach to waivers
The Financial Services Authority
(FSA) in recent correspondence
with the London Investment
Bankers Association has clarified
the FSA approach to waivers. The
FSA has pointed out that, where
firms apply to the FSA for a waiver
in respect of Conduct of Business
Rules, and where such firms have
demonstrated that such a waiver
would meet the criteria set out in
Section 148 of the Financial
Services & Markets Act 2000, the
FSA would be pre-disposed to
agreeing to such waiver request.
10
Paris prize winner
AEA LAW were pleased to once again sponsor the prize of a week-end
to Paris at the Glasgow School of Law Graduate Ball held recently at the
Moat House Hotel, Glasgow.
Irene Belton, Director of AEA LAW, is pictured presenting the lucky
winner, Barry Edgar, with his prize.
Journal
News
Investing in people
Peddie Smith Maloco have become one of the first legal
firms to have been awarded their second accreditation
by Investors in People.
Michael Maloco Estate Agency Partner at Peddie Smith
Maloco commented:“Unfortunately, many legal practices
have the reputation for being bureaucratic and having
poor internal communication between partners and
other levels of staff. At Peddie Smith Maloco we
passionately believe in approachability and not having
any barriers, particularly between the partners and the
rest of the staff. We have the belief that a happy,
enjoyable place to work is a productive one.”
LDU on the move
The Legal Defence Union Limited
have announced the appointment
of Ian Ferguson of Mitchells
Roberton as their Business
Development Manager. This is a
part-time interim appointment
whilst the Union for the first time
seeks to recruit a Chief
Executive. The Chairman, Jim
McCann, has commented: “The
Union was founded in 1987
primarily to promote and defend
the interests of solicitors in
Scotland. The Board wish to
enhance and develop the Union’s
role in assisting and supporting
solicitors in all aspects of their
professional and business life. Ian
has produced a Business Plan
which the Board have wholeheartedly endorsed and he has
been charged with the duty of a
speedy commencement of its
implementation.
Ian can be contacted care of his
firm at Mitchells Roberton,
George House, 36 North Hanover
Street, Glasgow G1 2AD –
Telephone 0141 552 3422
e-mail icf@mitchells-roberton.co.uk.
The web site is www.ldu.org.uk.
11
Journal
News
Benevolent
golf day
The Scottish Solicitors’
Benevolent Fund Golf Outing will
be held at Kinross on Tuesday
13th August 2002. The format is
stableford with the competition
being run as an individual and
team tournament.
Entries are invited from Faculty,
Society and Association teams.
The cost per team of 4 is £180
inclusive of soup and rolls on
arrival, green fees, high teas and
contributions towards individual
and team prizes. OyezStraker
have agreed to sponsor this year’s
event which is hoped to raise at
least £2000 for the Fund.
Entry forms and further
information available from Ross
D. Ireland, Williamson & Henry,
13 St Mary Street,
Kirkcudbright.(DX 580813 , LP-1
Kirkcudbright) Tel No. 01557
330692 Fax 01557 331540
E-mail rdi3putt@fsmail.net
Meanwhile the Society’s golf teams
have recently been in competition
with teams from The Law Society
of England, the Northern Ireland
Law Society and the Irish Solicitors
Golf Club – with mixed success.
Both Irish sides were too strong
but the match with the English
resulted in an honourable half,
allowing the Scots to retain the
Golden Snail Trophy.
The Club has two further
international matches arranged for
September against solicitors from
Ontario and Holland. Games are
also scheduled with RICS and ICAS.
Anyone interested in joining the
Club and participating in matches
should contact Stephen
Williamson of Holmes Mackillop,
Johnstone.
World Law Group’s first Scottish conference
The largest-ever gathering of The World Law Group, an
international association of commercial lawyers, took
place in Glasgow at the start of June.
Hosted by McClure Naismith, the Group’s only Scottish
member, over 100 lawyers from 26 countries held a
series of business meetings over three days.This was the
first time the World Law Group convened in Scotland.
The World Law Group is a network of independent law
firms based in 30 countries representing most of the
world’s major commercial centres. Its main function is to
service the international needs of the Group’s clients.
Established in 1988, the Group comes together twice a
year to discuss current legal and client issues.
Recommended salary
rates for trainees
Effective from 1 June 2002 the
Society’s recommended rates of
remuneration for trainees are
increased to £10,600 for a first
year trainee and £14,250 for a
second year trainee.
This increase is in line with
inflation.
EDITORIAL OFFICE
PUBLISHERS
The Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh EH3 7YR
t: 0131 226 7411
f: 0131 225 2934
e: lawscot@lawscot.org.uk
w: www.lawscot.org.uk
Senior Partner Dr Kenneth Chrystie said: “The
conference was an opportunity to meet colleagues
from around the globe to share ideas and discuss issues.
We were delighted to host this event and to bring a
gathering of this prestigious nature to Glasgow. I am sure
that the appeal of the city played a part in encouraging
so many members to attend and the arrangements
certainly ensured that there was time to sample Scottish
hospitality.”
Danish Bar Conference
The Danish Bar and Law Society is hosting a conference “Lawyers and
Democracy” on the 12th and 13th of September in Copenhagen.
Further information and registration can be obtained on
www.lawyer-conference.com or contact Inger Hoedt-Rasmussen,
ihr@advocom.dk or info@lawyer-conference.com
Employment Tribunals Chairman
The Lord President has announced that with effect from 5 June 2002,
the new Chairman of the Employment Tribunals (Scotland) is
Reginald G Christie.
Deputy Editor
Roger Mackenzie
t: 0141 560 3018
e: roger@connectcommunications.co.uk
Editor
David G. Cameron
Connect Communications,
Studio 2001, Mile End,
Paisley PA1 1JS
t: 0141 561 0300
f: 0141 561 0400
President: Martin McAllister
Vice-President: David Preston
Secretary: Douglas Mill
The Liberal Democrat Shadow Foreign Secretary the
Rt Hon W Menzies Campbell addressed the Group
on Scotland’s new role in Europe following
independence.
Review Editor
Alistair Bonnington
e: alistair.bonnington@bbc.co.uk
w: www.connectcommunications.co.uk
Design Editor
Gillian Park
t: 0141 560 3020
e: gillian@connectcommunications.co.uk
Chief Sub-Editor
Eric Wishart
ADVERTISING
Jacquie Burrows
e: jacquie@connectcommunications.co.uk
Julie Twaddell
t: 0141 560 3027
f: 0141 561 0400
e: julie@connectcommunications.co.uk
Disclaimers
The views expressed in the Journal of the Law Society of Scotland are those of invited contributors and not necessarily those of the Law Society of Scotland.The Law Society of Scotland does not endorse any goods or
services advertised, nor any claims or representations made in any advertisement, in the Journal and accepts no liability to any person for loss or damage suffered as a consequence of their responding to, or placing reliance
upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves before responding to any such advertisement, or placing reliance upon
any such claim or representation. By so responding, or placing reliance, readers accept that they do so at their own risk. © The Law Society of Scotland, 2002 ISSN: 0458-8711
12
Journal
People
Intimations for the people section should be sent to:
Denise Robertson, Record Dept, Law Society of Scotland,
26 Drumsheugh Gardens, Edinburgh EH3 7YR
e: deniserobertson@lawscot.org.uk
BLACKWOOD & SMITH,WS,
39 High Street, Peebles, announce
that David Gordon Fyfe has retired
as senior partner but will remain
with the firm as consultant. It is
also announced that Andrew
Wilson Crawley has left the firm.
Davies Wood Summers
Jennifer Walker and
Annette McIntosh
Intrabank Expert Witness
John Robertson
This photograph appeared with an
incorrect caption last month
BRODIES,WS, Edinburgh, is
delighted to announce that with
effect from 1st May 2002
consultant Alan Barr and associate
Christian Melville have been
assumed as partners. Alan joins
the partnership to build on the
already excellent reputation the
firm has for business and private
tax work. He is well-known to the
legal, financial and tax communities
for his legal-driven solutions to a
wide range of tax issues including
corporate tax,VAT and stamp duty.
Christian’s skills in trust, succession
and estate planning work will add
further impetus to the
development of the firm’s Private
Business Department services for
its business and private clients.
Both appointments underscore the
firm’s commitment to and focus on
its wide Scottish client base.
W & A S BRUCE, 15 Chalmers
Street, Dunfermline, are pleased to
announce the appointment of their
court associate, Jonathan
Matheson-Dear, as a partner of the
firm with effect from 1st May
2002.
BURNETT& REID, Aberdeen,
intimate that Joan Catto has
withdrawn from the firm with
effect from 30th April 2002 and
are pleased to intimate that their
associate Ewan MacKenzie
Campbell has been assumed as a
partner with effect from 1st May
2002.
COWIE CAMPBELL, 95 Fort
Street, Broughty Ferry, Dundee,
announce the dissolution of their
firm with effect from 19th April
2002. Helen Cowie has
commenced practice on her own
14
account under the name of
COWIE & CO, 32 South Tay
Street, Dundee, telephone 01382
203500. William J M Campbell has
joined ALAN J BAILLIE, Dundee,
as a consultant and will practise
not only from their offices at 37
Union Street, Dundee, telephone
01382 202444 but also from the
present office at 95 Fort Street,
Broughty Ferry, Dundee, where the
telephone and fax numbers are
unchanged.
DAVIES WOOD SUMMERS,
Aberdeen, are delighted to
announce that with effect from 1st
May 2002 their associates, Annette
McIntosh and Jennifer Walker, have
been assumed as partners.
ALLAN FINDLAY & CO.,
Glasgow, intimate that Kathleen
Mary Breslin has resigned as a
partner of the firm as at 30th April
2002 and the firm are delighted to
further intimate that with effect
from 1st May 2002 Kathleen has
been appointed a consultant.
FLEMING & REID, Glasgow, are
pleased to announce that with
effect from 1st May 2002 Louise
Monique Arrol has been appointed
as an associate of the firm.
ROSS HARPER, Glasgow, East
Kilbride, Hamilton and Bellshill, are
delighted to intimate that Gerry
Devaney (previously an associate
with the firm) has now been
assumed as a partner. We are also
pleased to announce the
appointment of Iain Clark
(formerly a partner with
MacMILLANS, Glasgow ) as an
associate with the firm. Gerry
specialises in criminal work and Iain
brings a wealth of experience to
enhance and strengthen the civil
side. These appointments are seen
as being instrumental in ensuring
the office goes from strength to
strength.
Christine Henderson wishes to
intimate that with her resignation
from MACDONALD
HENDERSON, 94 Hope Street,
Glasgow on 30th June 2001 that
firm dissolved. She has no
connection with the firm currently
using that name and trading from
94 Hope Street, Glasgow.
Duncan Henderson is pleased to
announce that he has commenced
practice on his own as
INVERNESS LEGAL SERVICES
FOR CRIMINAL ADVOCACY
with effect from 1st May 2002.
The practice is based at 33 Bellfield
Park, Inverness, IV2 4TA.Tel/fax
01463 229981 and e-mail
inverness.legal@virgin.net.
HOLMES MACKILLOP, Glasgow &
Johnstone, are pleased to
announce that Alan Mulrooney,
Pamela Gilks and Melissa Bowie
have been appointed associates of
the firm with effect from1st May
2002.
JAIN, NEIL & RUDDY, 150 West
George Street, Glasgow, DX
GW178, are pleased to announce
that Douglas Peter Neil has been
assumed as a partner with effect
from 1st March 2002. He can be
contacted by telephone 0141 332
5554, fax 0141 332 7450 and email j-n-r@blueyonder.co.uk
MACHARDY, ALEXANDER &
WHYTE, Forfar and Montrose, are
pleased to announce that with
effect from 1st June 2002 their
assistant Stephen Francis Wilson
has been appointed as an associate
of the firm.
MACLAY MURRAY & SPENS,
Glasgow, Edinburgh, London and
Brussels, intimate that Catriona
Munro has been appointed as a
partner of the firm in the
European & Competition Law
department. New associates have
also been appointed; Caroline
Colliston becomes an associate in
the Corporate Tax department;
Alastair Maclean in the Corporate
department; John Mitchell has been
Journal
People
Photographs of people featured can be sent to:
The Journal, Studio 2001, Mile End,
Paisley PA1 1JS
made an associate in the Property
department; Roderick Munro is
made an associate in Capital
Projects; Adrian Smith is an
associate in the Employment
Pensions & Benefits department.
MACMILLAN & CO, Alness, are
pleased to intimate that with effect
from 1st March 2002 the firm has
been acquired by their former
associate, Karen Fiona MacGregor,
who became the sole principal
with effect from that date. They
further intimate that their former
sole principal, Michael Muirden
Macmillan, continues to be
associated with the firm as a
consultant.
MACRAE, FLETT & RENNIE,
Edinburgh, are pleased to
announce that their associate
Douglas O’Reilly has been assumed
as a partner within the firm.
MARSHALL, ROSS & MUNRO,
Motherwell and Hamilton, are
pleased to intimate that their
Hamilton office has now moved to
36 Cadzow Street, Hamilton, ML3
6DG with effect from 2nd April
2002. The telephone and fax
numbers remain the same.
Susanne Fleming has been
appointed Property Manager at
the same address and may be
contacted there on 01698 285295.
MASONS, Edinburgh and Glasgow,
are pleased to announce that on
1st May 2002 Geraldine Kelm and
Louise Forster were appointed as
senior associates. Geraldine is
based primarily in the firm’s
Glasgow office and Louise in the
firm’s Edinburgh office at their new
premises at 18-22 Melville Street,
Edinburgh, telephone 0131 225
0000 and fax 0131 225 0099. The
firm is pleased also to advise that
on 7th May 2002 Eddie
MacKechnie, formerly a senior
partner of McGRIGOR DONALD,
joined as a consultant.
MILLER HENDRY, Dundee, Perth,
Auchterarder, Crieff and Comrie,
are pleased to announce that with
effect from 1st July 2002 Shirley
Phillips will be appointed an
associate of the firm. Mrs Phillips is
based at our office at 13 Ward
Road, Dundee.
Re the merger of MORRISON &
GARDINER LAW PRACTICE and
TAIT & PETERSON, both Lerwick,
intimated in the April 2002 edition,
please note that Helen Gardiner
resigned as partner with
MORRISON & GARDINER LAW
PRACTICE immediately before the
merger. Helen is employed by the
Foreign and Commonwealth Office
as an International Legal Adviser to
the Office of the Prime Minister,
Prishtina, Kosovo. Her e-mail is
gardinerh@un.org, telephone ++00
3816 3847 1560.
The partners of MORTON
FRASER, Edinburgh, are delighted
to intimate that with effect from
1st May 2002 Sue Hunter has
been appointed an associate of the
firm. Sue specialises in Private
Clients work.
NAFTALIN DUNCAN &
COMPANY, Glasgow, are delighted
to announce that with effect from
1st April 2002 their assistant Karen
Margaret Rodgers has been
appointed as an associate with the
firm.
PETERKINS, Aberdeen, Glasgow,
Inverurie and Banchory, intimate
the resignation of James Steel from
the partnership with effect from
30th April 2002. They further
intimate that with effect from 1st
May 2002, Duncan A Macniven and
Neil C Hunter became consultants
with the firm.
Graham Eden, principal of
UNWIN RASMUSEN, Livingston,
is pleased to announce the
acquisition of SMITHS, t/a
@HOME, 66 Morningside Road,
15
Edinburgh, with effect from close
of business on 19th April 2002.
Telephone and fax numbers and
e-mail and website details remain
unchanged. In addition with effect
from 1st May 2002 UNWIN
RASMUSEN’S associate, Louise
Koulaouzos, has been assumed as a
partner in the Livingston office.
R & R URQUHART,WS, Forres
and Nairn, and MACGREGOR &
CO.,WS, Nairn, are pleased to
announce the merger of their two
firms with effect from 1st May
2002. The new firm is to be
known as R & R URQUHART
(Incorporating Macgregor & Co),
at 117-121 High Street, Forres,
Moray-shire, IV36 1AB, telephone
01309 672216, fax 01309 673161,
e-mail: partners@r-r-urquhart.com,
LP1 Forres, DX 520690 Forres and
at Royal Bank of Scotland Buildings,
20 High Street, Nairn, IV12 4AX,
telephone 01667 453278, fax
01667 453499, e-mail:
Macgregorco@btinternet.com,
website: www.r-r-urquhart.com, DX
520950 Nairn. The partners of the
new firm are Colin Whittle, Jane
Ferguson, James Hotchkis, Stewart
Murray and Will Cowie. Ian
Macgregor will be continuing with
the firm as a consultant.
Journal
Letters
Write to:
The Editor,The Journal,
Studio 2001, Mile End, Paisley PA1 1JS
f: 0141 561 0400
Lenders hinder speedy conveyancing
I think I am right in saying that if
both firms of solicitors on either
side of a domestic conveyancing
transaction are properly set up and
there are no undue difficulties in the
title or with alterations etc, then a
domestic conveyance could
probably be successfully completed
in 10 business days. I have certainly
done it in five business days.
The problem facing practitioners is
a simple one, ie. it sometimes takes
three weeks to obtain the title deed
from a bank or building society in
connection with a sale, and it then
takes another four weeks to get the
offer of loan in connection with a
purchase. Why should it be a waste
of our time investing in technology,
discussing “e-conveyancing”,
discussing reducing costs to clients
and speeding up and making the
process more efficient, when the
problem does not really lie with the
profession, it is all the external
factors which cause delay. It used to
be several years back that it was
difficult to get a Planning Enquiry
Certificate quickly, but now they can
be obtained at very short notice, as
can Coal Reports, and Searches can
be done more or less
instantaneously. It is time the banks
and building societies put their
house in order and stopped hiding
behind glossy adver tising
campaigns. It is not a difficult task to
be able to find and disgorge a set of
titles, and given the apparent
availability of credit, I do not
understand why banks and building
societies find it so difficult to make a
lending decision and issue an offer
of loan quickly. They simply will not
employ enough staff or use proper
systems!
Any comments?
David R. Adie, Adie Hunter, Glasgow
Responding to concerns over PCC
I was concerned and disappointed to read Marcus
Whyte’s letter in last month’s Journal, voicing concerns
about the Professional Competence Course, following a
Scottish Young Lawyers Association survey of trainees,
but pleased concerns about the new training regime are
being voiced to the Society. Now that the Education
and Training Committee have been made aware of
these concerns and the survey through the Journal, it
will be happy to address them with the SYLA and any
trainee who contacts the Society.
The Society is committed to the new training
programme and is working closely with universities,
firms, students and trainees to ensure that solicitors’
training is the best that can be given.
Representatives of the SYLA sit on the Society’s
Education and Training and Admissions Committees,
pr imar ily to encour age communication and
co-operation between the Society and the SYLA as
representatives of young solicitors in Scotland. What a
shame that the SYLA did not raise these concerns with
the committee before, but now that they have been
brought to our attention, the Society will address them.
From the outset, the Society recognised that in-put from
the trainees into the changes was vitally important and
encouraged trainees to raise issues with the committee.
Information has been sent to every trainee about the
changes - both as trainees and as students - and the
Society has an on-going programme of visiting firms to
16
give up-dates to trainees and solicitors and listen to any
feedback trainees have to give the Society. Information
on the new training programme has also been sent to
every firm and organisation which has trainees.
The Student/Trainee Liaison Committee, which has
representatives from the Universities which provide the
Diploma in Legal Practice, as well as trainee
representatives, meets regularly with representatives of
the Society and was set up to provide another avenue
for communication and a platform for airing any
concerns
The success of the new training programme depends
on partnership and feedback from all involved in training
of Scottish solicitors, including the trainees themselves.
The website was criticised in the letter and I am already
taking steps to improve and regularly review the
information available on Education and Training on the
Society’s website.
The ultimate aim of the new training programme is to
equip solicitors with the skills they need in the 21st
century to meet client demands. By working together
and addressing concerns as they arise, Scottish solicitors
will continue to receive the high standard of training
which is recognised the world over.
Liz Campbell
Director, Education and Training, Law Society of Scotland
lizcampbell@lawscot.org.uk
Journal
Letters
Funding issue needs to be addressed
I refer to the letter by Alun Thomas
regarding discrimination and the
provision of legal advice in relation
thereto. I would entirely agree that
the provision of legal advice
regarding discrimination is no small
problem. As a much smaller firm
than that of Mr Thomas, we have
had to plan to be able to provide
employment advice over a good
number of years and that
employment advice has had to
include disability discrimination
advice.
Of greater concern, however, is how
is the average citizen or, indeed,
small business able to afford to fund
the obtaining of such advice.
Insurance policies may be available
to small employers if they have
been prudent in contemplating this
area, although this is perhaps
unlikely. Individuals may have
insurance policies as well but, again,
there will be few. Those who have
been discriminated against therefore
may either have to pay for advice
from their savings or, alternatively, if
they can avail themselves of legal
advice and assistance, be funded by
the Legal Aid Board.
The provision of legal advice and
assistance by reason of
representation at tribunal has only
been available for a short time. In
that short time, in my opinion, the
private individual who is able to
qualify for legal advice and
assistance has benefited from being
able to obtain legal advice by
representation at tribunal and my
personal experience is that virtually
every case taken to tribunal with
the benefit of such assistance has
been successful. The charge out
rate, however, for such work is
£54.80 per hour. It is clear therefore
that, in any firm, the more lucrative
work is subsidising this type of work
and such subsidy, in my view, is
wholly unacceptable.
As the letter from Mr Thomas
points out, disability discrimination
against an individual can result in
substantial sums of money being
awarded as compensation. The
compensation in these
circumstances must be paid from
the business which has
discriminated against the individual.
It would seem plain therefore that
to avoid either the employee feeling
discriminated against or the business
discriminating against someone
would be reasonable and that
preventative advice would be
appropriate.
However, if that is not successful, if
the individual does not qualify for
legal advice and assistance, again the
problem of funding that advice
becomes apparent. The operation
of a no win, no fee structure would,
in my opinion, be unrealistic. How
is there to be a provision of such
advice outwith the large cities that
is at a level of fee which is affordable
for the individual but, nonetheless,
is to provide adequate
remuneration for those who are
prepared to take the time and
trouble at their own expense to
acquire a degree of specialist
knowledge to operate in this area?
The issue of funding needs to be
urgently addressed. There is no
good reason why funding should
not be provided under a legal aid
scheme which remunerates the
solicitor at the same rate as is now
to be proposed for new civil legal
aid and there is no good reason for
discrimination against those who
are advising in relation to
discrimination and the matter needs
to be, in my opinion, urgently
addressed.
Ken Hogg, Allcourts, Livingston
Life and work of Donald Shaw
Entirely in pursuit of a personal interest, I am presently
researching the life and work of an Edinburgh solicitor
called Donald Shaw who practised in the earlier part of
last century, originally from premises at 53 South Castle
Street.
Mr Shaw died as long ago as 1944 and I therefore
appreciate that it is unlikely, although not impossible, that
any reader will have personal recollections of him. His
two sons, however, continued the practice until the
1960s and will, I imagine, be well remembered by many
Edinburgh practitioners. One of the sons, John
Mackinnon Shaw, was latterly Sheriff Substitute (as
Sheriffs were then called) at Dunoon.
In short I would be pleased to hear from anyone who
has any information on the Shaw family. I know that the
practice was acquired by Messrs Farquharson Craig &
Co. SSC, now part of Messrs Ketchen & Stevens WS,
but what I am more interested in is personal
recollections of the Shaws. Anyone with such
information can contact me at Edinburgh Sheriff Court
(tel. 0131 225 2525) or by e-mailing me on
roddyjohnmacleod@btinternet.com
Finally, I should just explain that my interest in this
derives from Donald Shaw’s work on behalf of crofters
and would-be crofters at the time of land resettlement
in the Highlands and Islands in the 1920s. At least until
recently he was remembered with reverence in these
parts for that work. As well as the satisfaction of
personal curiosity part of my purpose is to attempt to
see to it that he is not now forgotten.
Sheriff R.J. MacLeod
17
Journal
Opinion
Margaret Scanlan argues that an English
judgment which presumes the mother
is the preferred parent unless shown
to be demonstrably unfit misses
the point of family law.
You really have to ask yourself what is Jeremy Clarkson
for; with his Desperate Dan chin and plumbers’ jeans.
Well perhaps as a reminder to us girlies of what men
were like before the advent of “new man” allowed us to
relax our eternal vigilance and start shaving our legs
again. Family law practitioners are, of course, well placed
to monitor the development of this latest manifestation
of homo erectus and, frankly, so far as I can see not
much has changed since my (very) old man saw me off
the premises in the advanced stages of labour with a
cheery wave while patiently explaining to the
ambulance crew that he would not be accompanying
me to the maternity hospital as he had his work to go
to in the morning nor indeed to the ambulance as he
was in his slippers.
doctrine of parenthood but now we have the decision
of Lord Justice Thorpe, an eminent English Family Judge,
in which he states unequivocally that mothers make
better parents than fathers. My knowledge of the case
is gleaned from the press only but it appears that he, to
some extent, based this finding on the fact that women
carry, give birth to and feed children. I am not entirely
persuaded that gender is determinative of one’s ability
to force your lovingly pureed (organic) carrots down
your infant’s neck but he is spot on about two out of
three, which is not bad for a judge. There has been the
predictable response from men who are, like, totally in
touch with their feminine side but not a lot from the
Radfems who seemed to have missed this landmark
judgment which puts them straight
back in the kitchen where they
this mean
belong.
Despite the deluge of articles in the
“Does
broadsheets by men who strap their
infants to their chests about the joys
I actually have
Is it really the case that men’s
of fatherhood most of the men we
biological destiny is in the boardroom
come across have more in common
to
look
after
and women’s in the nappy bucket?
with my Uncle John who nearly saw
Should family lawyers acknowledge,
off his first born by getting up to
them?”
indeed embrace, this simple fact of
switch over to the football, pitching
life and approach contact/residence
his forgotten infant from his lap onto
cases on the assumption that the
the shag pile. Few men are beating a
mother is the natural carer unless
path to our door begging to be
demonstrably
unfit.
That, I think, is where the problem
allowed to spend the best years of their lives nurturing
truly lies because if we proceed on the assumption that
two ungrateful brats who will have buggered off to
the mother is the natural primary carer then the only
Australia just about the time that you notice the
way the father will get residence, even if during the
absence of a pension fund. There are exceptions, of
marriage or relationship he has been the primary carer,
course, like the anguished father who instructed us to
is by attacking the fitness of the mother. I do not really
deploy all the forensic skills available to us to secure
know if mothers are the natural primary carers but I do
residence and delivery of his children from their
mother, a rackety creature sorely lacking in domestic
know that forcing fathers into the position of bad
skills who seldom sorted her wash and had probably
mouthing the mother will have a catastrophic effect on
never even heard of a Pledge wipe. Writ, Hearing,
the children. Surely the least children are entitled to
Result. Panic stricken father inquires feebly “does this
expect is two loving co-operative parents even if they
mean I actually have to look after them?”
no longer share the same home. Forcing parents to
dredge up the past rather than look to the future is
Despite what our experience seemed to be telling us,
hardly likely to contribute to this.
family lawyers soldiered on promoting the gender free
18
Journal
Changing Bar
No room for
complacency
Colin Campbell, QC has completed his first six months as Dean of the Faculty of Advocates.
Here he considers some of the challenges and opportunities facing the profession
– and in particular the Bar – in Scotland.
I welcome this opportunity to offer
some thoughts on current
challenges and opportunities for the
profession, the system of justice in
Scotland, and the Bar in particular.
Before doing so, I would like to
recognise the warm and good
relations which exist between the
two branches of the profession in
Scotland. It is impor tant to
acknowledge that, whilst solicitors
and advocates perform separate
and distinct functions, we are part
of the same profession with the
same fundamental goals. Of course,
there will be times when there are
differences of view. However, I
welcome the open and regular
dialogue which takes place between
the Faculty and the Law Society of
Scotland. This good communication
is central to our joint commitment
to the effective administration of
justice in Scotland.
These are challenging times for the
legal profession in Scotland.
Generally the professions as a
whole are under pressure to justify
themselves, and lawyers are no
exception. This has come from all
parts of the political spectrum, and
from a news media which
sometimes seems to relish such
pressure. Numerous reviews are
being carried out by various bodies
into many aspects of the profession
and the justice system.
For
example, the Justice 1 Committee
of the Scottish Parliament is asking
whether lawyers should continue to
be responsible for conduct and
standards within the profession.
The Justice 2 Committee is
scrutinising the Crown Office and
the prosecution of crime
throughout Scotland. South of the
border and in the Republic of
Ireland, the relevant competition
authorities are questioning well
established features such as the
Bar’s rules against partnerships and
direct access.
On the wider scene, the World
Trade Organisation continues to
identify the provision of legal
services as indistinguishable from
the sale of consumer products. This
19
Journal
Changing Bar
when the line distinguishing an independent prosecution
system from an arm of Government must be clearly
identified and respected. The concept of an
independent prosecution system is widely supported,
but it is the practical judgment involved in the placing of
the line which is crucial.
has spawned the ongoing professionalism/
commercialisation debate within organisations such as
the International Bar Association. It has also encouraged
some to view requirements for basic competence in a
particular legal system as no more than irritating
barriers to trade.
It would be easy to perceive all this as an “assault” on
rightful “privileges”, thus creating a mood within the
profession of sullen self protection. However, I firmly
believe that these are challenges which ought to be
regarded as an opportunity to analyse our fundamental
values and as a prompt to engage with the Government,
the new Parliament and the wider public. For the
Scottish Bar I see the purpose of this engagement as the
explanation of what we do; why we do it this way; and
why these features operate strongly in the public
interest.
To respond in a positive manner to all of the above is
important for reasons which go well beyond the
interests of the Bar itself. Referral Bars throughout the
world have consistently promoted the independent
administration of justice above all other considerations.
This is a general principle which applies to all parts of
the legal profession, not just the Bar. Some may be
tempted to dismiss this emphasis on independence as
an unimportant shibboleth, designed only to protect
vested interests. However in my view, if independence
is subordinated to the plethora of other demands, a
precious and vital feature will have gone from our
public life.
To illustrate the point, let me take one example. Those
responsible for the prosecution of serious crime face
calls for greater “accountability”, and for participation “in
partnership” with other agencies. The risk is that
prosecution decisions may be perceived to be
influenced by outside pressures. The time may be close
20
The importance of an independent judiciary is also
generally accepted. However, even that part of our
justice system is not immune from the kind of pressures
I am discussing. Our judges should be safeguarded
from a culture which might tend to interfere with their
pre-eminent function, namely doing justice according to
the rule of law. For example, while it is inevitable that
there will be concerns as to how particular decisions
will be presented in the media, we should ensure that
independence from that pressure is maintained.
Likewise, it is inevitable and understandable that there
will be pressure on the financial and other resources
available to the justice system. However, in my view it
is essential that the function of the independent
judiciary is not harmed by such constraints. Recent
experience in Zimbabwe underlines the importance of
protecting the judiciary from the currents of the
political tide of the day.
It is equally important to maintain the independence
and integrity of the legal profession as a whole. In giving
evidence to the Justice 1 Committee during its
investigation of the regulation of solicitors and
advocates, I stressed two things. Firstly, self regulation is
one of the primary guarantees of the independence of
the legal profession. For example, a lawyer acting against
the Government should be free from any concern that
an arm of the Government or any body established by
the Government can both regulate and investigate his
conduct. Secondly, if regulation is removed to another
body, this would weaken the authority and the ability of
the leaders of the profession to insist on and maintain
high standards of professional and ethical conduct.
The challenge for the Bar is to ensure that its system of
self regulation is – and is seen to be - efficient, fair and
understandable to the public. In this regard, amongst
other reforms, the Faculty has altered its complaint
handling procedures to ensure that a lay person
participates in the consideration and determination of
all complaints. Further, the oversight by the Scottish
Legal Services Ombudsman provides a valuable impetus
to improvement, and considerable reassurance that the
public interest is being safeguarded.
In light of the foregoing, it should be plain that there is
no room for complacency within the legal profession. I
speak only for the Bar, but in this regard I can report
that, contrary to recent headlines, the wearing of wigs in
court is not the most important item on the agenda.
Rather, the Faculty has instituted a programme of
analysis and reform based on three central ideas:
■ The ethos of the Scottish Bar is its independence
from outside pressures and influence, underpinned by
the highest standards of professional and ethical
conduct.
Journal
Changing Bar
■ Members of the Scottish Bar aim
to provide skilled advocacy and
excellent legal advice for all who
choose to use our services
throughout Scotland, in an efficient,
flexible and cost effective manner.
■ The Faculty as a professional
body, should be open to good ideas
for change and should thoroughly
engage in an appropriate way with
the public and the public life of
Scotland.
Thus Faculty committees are
currently working on, amongst
other things, the expansion of
continuing practice development;
the creation of a pro bono unit;
new methods of assessing intrants
prior to admission; a review of our
Code of Conduct; and finalisation of
the Faculty’s equal treatment
strategy. We intend to assess the
role advocates can and should play
in the wider arena of alternative
methods of conflict resolution. I
also consider it important that,
when appropriate, members of
Faculty should be prepared to
comment on legal issues of general
interest and current concern, and
thus help to provide useful
information to the media, politicians
and the public at large.
Our commitment to advocacy skills
training for devils and members is
as strong as ever. The Faculty
provides one of the leading
advocacy skills programmes in the
world. In the last seven years 150
intrants have undergone eight
weeks of intensive and structured
advocacy training. 100 qualified
members have undertaken similar
courses in the same period. I
believe that this demonstrates our
determination to maintain and raise
standards. In recognition of the
Faculty’s standing in this regard, our
members contribute to advocacy
courses elsewhere in the English
speaking world.
The Faculty is co-operating with all
of the current inquiries, including
Lord Bonomy’s review of the High
Court. In this regard we have
recently submitted to the Scottish
Legal Aid Board a proposed
scheme for graduated fees for
advocates in criminal legal aid cases.
We have taken expert advice and
invested a great deal of time and
energy in this proposal. There has
been no increase in criminal legal
aid scale rates for ten years,
notwithstanding the need to ensure
an adequate supply of counsel, at all
levels of seniority, skilled in criminal
practice. If accepted, the proposed
scheme will provide a fairer, quicker
and administratively less expensive
system. Advocates no longer have a
monopoly of rights of audience in
the High Court, but we still aim to
play a key role in the prosecution
and defence of serious crime in
Scotland. We await the Executive’s
response to this proposal with great
interest.
At the end of this month in
Parliament House, the Faculty will
be co-hosting with the Australian
Bar Association the Inaugural World
Conference of the Independent
Referral Bars. Mary Robinson, the
former President of Ireland and
currently the United Nations
Commissioner for Human Rights,
will be delivering the keynote
address. We are delighted that she
has agreed to visit Edinburgh and
address our conference.
In
addition, distinguished speakers
from all parts of the globe will
address the important issues facing
the Faculty and other referral Bars
today.
These include quality
standards and competence; direct
access and independence; and the
independent Bar’s relationship with
the state.
This important event will give us
the opportunity to reflect on the
fundamentals which underpin the
role of the Faculty in modern
Scotland, and why it operates in the
public interest. With the kind
permission of the editor, I will
address these matters in next
month’s issue of the Journal. In
particular I will contend that the
basic features of the independent
Bar lead to greater choice for the
consumer, and enhance the quality
of legal services for our citizens and
for the overall administration of
justice in Scotland.
Journal
Embracing Change
Are you satisfied with your working life? Probably not if you’re like most of the lawyers
Mark Powers meets. In extracts from his talk at last month’s Law Society of Scotland
conference, he writes that by adopting new perspectives we can create a client centered,
innovative practice – and one which gives you freedom to live a more fulfilling life
The
future
in your
hands
22
Journal
Embracing Change
The future is a terrifying place to
anyone who is fearful of change…
but, to those of you who embrace
change, the future is full of hope,
possibility and opportunity. When I
speak to law firms in America I
speak of their law firms as
goldmines. When I say goldmine, I
mean that there are more financial
rewards, more professional rewards,
and control and independence than
most can imagine.
Unfor tunately for the legal
profession, many lawyers don’t have
a great deal of experience coping
with change nor does embracing
change come easy. It is a profession
rooted in the past and in tradition.
And this rich and wonderful history
makes it difficult to accept the
changes it now must face. And make
no mistake about it, they will have to
change.
To complicate matters, most
lawyers are trained to be risk
identifiers, not risk takers.
Legal training in precedent makes
many believe that you can only find
the future by what means? By
studying the past. But in the world
we face today, if you stay in the past
too long and are not innovating with
the forces of the business
environment, you get run over.
I assert that the future of the legal
profession is dependent on you, the
individual practitioner and the law
firms, it is not going to change from
the top down. The Law Society can
point to the issues, but you are the
leaders that will initiate innovation.
When I interview American lawyers
and ask them what they want from
their profession, they say that they
want personal freedom,
independence, control, professional
and intellectual stimulation,
economic gain through profit and
income, the ability to make a
difference and help people, a
creative outlet, to work with
interesting people, time to think and
contemplate. I’m sure most of you
will agree that this is what you want
when you start your law firm or
enter into a partnership.
What the current model for law
firms has produced, not necessarily
for you personally, is stress and
frustration, long hours (60-70 hour
weeks), little time off, constant
interruptions, frozen or declining
incomes, and lives out of balance.
This is pretty much what we are
getting. The assertion that I’m
making for you is that the model for
building law firms is broken.
Defining insanity
Here’s my definition of insanity –
you walking into your office every
single day, opening the door, turning
on the lights, sitting behind your
desk, starting to work and
somehow imagining that today is
going to be different from yesterday.
That you’re somehow going to get
the positives that you imagined early
in your career.The model’s broken!
This is the part, which you might
find particularly insane… this has
been going on for 20 – 25 years!
And there isn’t any sign that it is
going to change… unless you
change it.
At the core of this model, the
biggest obstacle to growth and
success is something we call the
technician. Let me make a case for
the technician.Who starts a medical
practice? Doctors. Who starts
a c c o u n t i n g o r C PA f i r m s ?
Accountants.Who starts a plumbing
company? Plumbers..Who starts law
firms? Lawyers. What do all these
people have in common? They
Journal
Embracing Change
invested time, energy, and money developing their
professional or their personal trade.They did not spend
all of those years going to school to be a business owner.
They wanted to be a lawyer or doctor or tradesmen.
From a business perspective, we’re going to call the
person who does the technical work, the technician.
What does every good technician want to do with their
trade or profession? Practice it well.The only thing they
really wanted to do when they went to school or when
they got out was to do it good.To the point where they
say things like “if those damn clients would leave me
alone, I could get some work done around here.” What
you want to get out of this article, and I mean no
disrespect, is that every business, whether it’s a medical
or a law practice or a plumbing company, has technicians
and they do the technical work of the business. And the
very skill they need to free themselves from the grind,
time management, marketing, finance, or managing staff
are the very distractions to being a good technician.
The trap
have three basic roles. When you became owner or
shareholder, whether you like it or not, you took on
those other two roles. Here’s the kink in the system,
the technician just wants to do the work, the good
work, unfortunately, the other two things are the things
that free them to allow them to do the work. But these
are the very distractions that keep the technician
locked in. Michael Gerber, in his excellent book the
E-Myth said, “there really aren’t entrepreneurs, just
technicians that had an entrepreneurial seizure and
they made a fatal assumption”. Now, I know you
conscientiously may not have made this assumption,
but it goes like this: “If I understand how to do the
technical work in the business, if I understand how to
practice law, I must understand the business that does
the law”. And this is a very fatal assumption because
the business that’s supposed to free you and give you
these positives starts trapping the technician and the
technician feels locked in.
We lure you into this wonderful opportunity of a law
firm with all the money, income, control, growth and
independence and what you get is stress, long hours,
high liability, and lots of staff headaches. Until you boil to
death. Here, I’ve got a deal for you. Let me tell the truth
about it. I’ve got a law firm for you. Now, listen there’s
going to be a lot of stress. You probably won’t get a
vacation. You’ll have all the responsibility and liability on
your back. I can’t promise you any control over the cash
flow and you’ll just get no time off. Jump in! You wouldn’t
do it. You wouldn’t do it. It doesn’t make sense. But it’s
what our technician does because they can’t see the
difference. It’s a slow trap.
And the trap is set very slowly and insidiously. It’s very
innocent. Most of you don’t see it coming. It starts with
“I really can’t get the work done during the day. So, what
do I do?” I stay nights. And because there’s interruptions
all day long, I have to stay nights. I have to do the work.
I can’t do the work during the week. So, what do I do? I
start coming in on Saturday. I can’t get the work done on
Saturday. So the technicians stays until Sunday. And then
the technician begins to accept this as the way things
are. The technician starts tolerating missing time with
family. They start tolerating the lack of exercise. They
start tolerating not taking vacations. It becomes
acceptable and I know that you didn’t say “hey, Mark I
volunteer not to take a vacation. I volunteer to not see
my family or exercise or do those sort of things”. Usually
it sounds like this – “Mark, you don’t understand. Who’s
going to do the work if I don’t? I’m the one that’s got to
do it.Who’s going to take care of the client? I’m the only
one that knows how to do this.” And it’s usually a
Your three roles
comment you make to your spouse. Then we lock the
When you decided to be a partner, take on a
technician into place by this last one. The technician
partnership, or when you started your firm, you took
becomes clear that nobody but nobody is as competent
on basically three roles. You took on manager. And the
as them. Nobody can take care of
other role you took on was owner.
the client as well as I can. “I’ve
We lure you into this
So you’ve got responsibility as
delegated and the client just wants to
owner and then you’ve got
come back to me.” “I’ve tried
wonderful
opportunity
responsibility as manager who has
delegating work and I just have to
to pull all those pieces together. If
of a law firm ... and what
stay late and correct it because
you’re in a larger firm, you have
nobody knows what they are doing
you get is stress, long
people you hire to do a lot more of
but me.” So the technician starts
that, but you do it as well. And if
hours,
high
liability,
and
believing, truly believing, that
you’re in a smaller firm you do a lot
everybody else is incompetent. They
more management functions. And
lots of staff headaches
are the most competent one. So it
the last role is technician. Someone
traps them in place. It’s a slow trap.
has to do the technical work. So you
24
It’s not your fault.There was just never really a distinction
between technician/owner/manager. I just want you to
recognise that you may be a technician and thinking
about your firm in a technical perspective.What I would
like for you to get out of this article is that the technician
Journal
Embracing Change
is not building a business. A
technician is building a job and not
such a great job when you think
about it. They are the business.
When you go away, so goes the
business. There’s a double penalty if
you’re ever able to take a vacation
and then you lose the income. If you
took four – six weeks off, what
would happen to cash flow for a lot
of you? It would tank.
In this model of technician, the only
way to earn more money for most
of you reading this is to work more
hours. Hours in, hours out. For most
of you in this model that’s how it
works.There are limited growth and
no significant value.
I’m going to replace this technician
model. But what I want to do is that
I need to put a nail in the coffin of
this technician. I think it’s critical that
you get the power of what’s going
on here.
I want you to imagine with me for a
minute that the technician is at the
job, they are working in their
business everyday. Their heads are
down and they are trying to get
production done but they’ve got
constant interruptions. Their staff is
interrupting, their clients are
interrupting, they’ve got pressures
to get money in from billing and
deal with new clients and then
they’ve got pressures from home –
to get home, to get to the game, or
they have pressures from the body
to get exercise. Can you imagine
that? Now, while the technician is
working IN the business, what’s
happening is that the world has
changed around them. It’s been
changing a long time. Supply and
demand, advancing technology,
unauthorised practising of law,
multidisciplinar y practices,
regulatory shifts and
expectations/sophistication of the
client
It’s been going on for 20 years or so,
and this is what you need to get:
clients are in control. Not you.
Client dictates. Their loyalty has
declined. You’re squeezed for profit.
Almost every one of you are
looking for new ways to get money
out of the firm. There’s extreme
pressure for productivity. Today, you
have to be a good marketeer. It’s a
skill you have to develop or you get
to be dependent or worse, you get
put out of the market place. You
have to play catch up on technology
and there’s high levels of lawyer
dissatisfaction..
The model is broken
So, what I’m asserting to you is
that the model is broken. But what
if there was another approach?
What if there was another
approach that gave you the
freedom. Another approach other
than just the technician and a
process that gave you control over
it, freedom, the ability to take
vacations for six weeks, some of
you much longer vacations, and
control over the day. So the real
question in my mind is going to be
“how do we turn things around?”
You have a couple of options, don’t
you. You can go back and do
business as usual. Can you go back
and do business as usual? Sure.You
can go back and do business as
usual and expect the new results?
No, you can’t. You’re not going to
be able to go back and do business
as usual and get a positive result.
Well, you can close the door and
get another job. Go to work for
another law firm.The only problem
there is that they are building the
same model you were working
with. What I’m asserting to you is
that you have no choice. In this
economy, which is 20 years old, in
this profession, where changes
have been going on for over 20
years, the only option is to
innovate and reengineer … to
work on this firm. It’s the only
choice and I’m going to share with
you a seven-step process to
reengineer your firm.
Journal
Embracing Change
everyday – how must I work today for me to take care
of my clients better than anyone else and my firm. How
must the business work today so that I don’t have to
come in on the weekend? How must the business work
today so that I get vacations? How must the business
work today so that I can do my work better? I can be a
better professional. How must the business work? To the
entrepreneurial thinking attorney, providing value to the
client is the highest work of the business. To the
technician, doing the work is the highest value. I just want
you to get the distinction. I’m not telling you to jump
away. You obviously can choose to be a technician as
much as you want. For some of you, that’s your highest
joy. And that’s fine.The bottom line difference is that the
entrepreneur is working on the business everyday, the
technician is working exclusively in it.
You understand that you are the owner. You work ON
the business, but what do you work on? You work on
systems, which is your second perspective.
Here are the seven steps.
New Perspectives
Personal & Professional Focus
Productivity or Time Management
Client Development Systems
Staffing Systems
Cash Flow Systems
Continuous Improvement
New perspectives
I will briefly cover new perspectives. There are three
perspectives that will alter your life and change your
practice forever. The first perspective is an
entrepreneurial thinking practitioner – working on it –
not in it, which is opposite of the technician. Systems
perspective is the second and then there’s a clientcentered perspective. Let’s talk about each one of these
briefly.
The entrepreneurial perspective is quite simple. It’s just
the opposite of the technician but for we don’t know
what the difference is really from a technician. A
technician goes to work every single day. They get into
the office. What’s the question they ask when they get
into the office? What work do I have to do today? Every
time a technician sits at their desk, what work has to be
done? The owner/entrepreneurial thinking attorney ask
the question - what’s the business work today? Big, big
difference. I want you to start asking this question
26
My assertion to you is that your law firm is nothing more
than a series of systems - processes. And you
understand some of them. For example, you understand
production. You open a file. You put it into the work in
progress. You close the file. Some of you have postclosings. Then the file turns into money. Think of it a lot
like inventory. Like someone has a manufacturing plant.
The files are turned into inventory. If you run that
production system well, they go through that production
line and then they turn into money for the owner. So,
you’ve got a system for production and you’ve got four
other systems to work on. You’ve got a productivity
system…time management, how you manage your time,
you’ve got client development systems, you’ve got
staffing systems and cash flow. Every system in the
business has an input, a process and a result. If I want to
change the result, for example, if I’m working with
incompetent staff, what system would I go to work on?
Staffing system, right? So the staffing system has
selection, recruiting selection, the hiring, the motivation
and supervision and then the system has a termination
part of it. And if I’m working with incompetent people I
have to go to work on my recruitment and training
process. If I don’t have enough clients or clients paying
my bill, what system would I go to work on? Client
Development system on my client selection.. My
assertion to you as owner you start making distinctions
about the business.The business is always talking to you.
The technician can’t hear it because everything sounds
like a problem or frustration. The owner starts
distinguishing between frustrations. So one frustration,
meaning I’ve got incompetent people, means I have to
go to work on a particular staffing system. If I do not
have enough cash flow, means I have to go to work on
my cash flow system. If I don’t have enough clients, I have
Journal
Embracing Change
to go to wor k on the client
development system. As owner, you
know now that there are systems to
work on. The only thing we have to
do is distinguish what are the
elements of the systems to work on.
Combine your systems
effectively
Your challenge is to combine all of
the systems to build a business that
takes care of your clients better than
anyone else could do it. This will
raise the profession. This will raise
the quality of care.This will take care
of the client. The only problem is
that to take care of the client, you
need to know what they want. And
what do clients want? Results –
what else? Attention – what else?
There are surveys – most lawyers
around the country will say the
number one thing clients want is
results. The number two thing is for
free. Every survey of clients whether
it’s the ABA or your state bar or
your firm, the client says concern
and caring. And when they
distinguish what they are talking
about – the client says, “I want
somebody that will take my issues
to heart – it will be personal.They’ll
treat me like this problem is as
important to them as it is to me”.
They want to know that you care.
How do you prove you don’t care?
Don’t answer the phone, don’t
return phone calls. How else? Have
piles of files around your desk.When
they come in, have boxes. One
person said to me – “my client said
to me when they came in and saw
all the boxes – oh, I didn’t know you
were moving”. They weren’t. So,
your job is to build the system that
takes care of your client and you
have to build a business that goes
back and ask the question – is my
staff giving the clients the impression
that they are important? Did you
know that a staggering 68% of
clients that leave you and never
come back, never come back
because of something called
perceived indifference. That didn’t
perceive any difference from your
law firm or someone else’s. You
made no impression on them. That
is your job as owner to work the
systems and build it so the client
cares.
The third perspective, The Client
Centered Perspective, is that we
work on the system from the client’s
eyes. So in this new model, it’s no
longer about being more efficient or
effective, that’s not really the real
intent. It’s really about what is
relevant to your clients. Do you
know what I mean by relevant?
Make a difference. What I mean is,
are you relevant. If you should go
out of business, would they be
upset? If they were outraged that
you went out of business and left
In your law firm,
you are rewarded to
the extent that you
add value to your
clients’ life
analogy between the legal
profession and a great herd of
buffalos in the Americas during the
1800s. Buffalos were easy to hunt
because of their herd mentality and
if you could keep the lead buffalo in
a particular direction, the others
would follow. The hunters would
then stampede the herd toward a
cliff and by the time the lead buffalo
saw the danger it was too late, there
was no where to turn and the
momentum of the herd would push
them forward over the cliff.Those in
the middle of the herd will not
survive, because they won’t be able
to turn unless they start to move
now. Those on the edges may have
an option to change direction. Even
those with the physical ability to
avoid the cliff will have to
understand that the cliff is close in
order to understand the need to
change direction. Charlie predicts
that at least six out of 10 American
lawyers will go over the cliff. He is
asking how far away is the cliff
consider ing the evolutionar y
changes in the landscape.
So who will be rewarded in the future?
■
Those willing to take risks
them, then that’s what relevant is.
This is what you have to ask about
your law firm and you want to get
that distinction. In your law firm, you
are rewarded to the extent that you
add value to your clients’ life. Your
financial rewards are in relationship
to the value that you add to your
clients’ lives. And the more value, the
more relevant you become.
■
Entrepreneurial thinking
attorneys
■
Excellent marketeers
■
Those who can provide
‘extraordinary’ value to clients
and be accountable to their
needs
■
Those who can bring clients
back for additional value
Innovating your practice
■
Those attorneys who are
willing and able to INNOVATE
and change
So, this is really about you innovating
your practice and working on it to
serve you and your client better. As
in any evolutionary process winning
innovations succeed, survive, and
prosper until the next evolutionary
shift.
In Stampede to Extinction, Charlie
Robinson, a legal futurist makes the
Mark Powers is the President of
Atticus, a leading training and
development company that teaches
American lawyers how to successfully
increase their incomes while
decreasing the stress and hours they
put into their practice.
27
e: Mark@atticusonline.com
Journal
MDPs
MDPs:
Why Not?
John Elliot argues that, with the right safeguards
in place, the Nova case should not impede the
introduction of MDPs if the profession and their
clients choose that business structure
The NOVA case appears at first blush to have torpedoed multi disciplinary
partnerships. This is not so and I argue that MDPs can and should be
permitted to exist in Scotland.
The European Court of Justice held that, in the Netherlands, the prohibition
by the Dutch Bar on lawyers joining a MDP is anti-competitive. However,
the Court said that the ban was reasonable because it was necessary for
the proper practice of law in the Netherlands.
The Court referred particularly to the “advisory” function of the legal
profession and the “supervisory” function of accountants when, for
example, auditing.
I believe that the Court was absolutely right in saying that a ban on MDPs
is anti-competitive and equally wrong in deciding that that lawyer cannot
properly function in an MDP.
The Office of Fair Trading in their 2001 Report “Competition in
Professions” remarked: “We have generally concluded that Rules that
prevent the establishment of MDPs restrict competition...These restrictions
may inhibit new entry and prevent the exploitation of possible economies
of scale and scope...The opportunity to provide combinations of high-street
professional services under one roof should unlock potential cost
efficiences and enhance customer choice and convenience...”
Professor Alan Paterson was interviewed by the Journal (April 2002) in
connection with the NOVA case. He charged that there was little evidence
of demand for such services; that the maintenance of lawyers’ core values
is essential; that any attempt to apply different standards of conduct within
one practice “is wholly impractical”; that professional standards would fall;
and that Enron shows how the different duties may conflict.
Professor Paterson, as he has done before, makes a powerful case. But I do
not think that it should be assumed that those who advocate MDPs are
unmindful of or unconcerned about the core values of the profession.The
challenge for them is to devise an MDP regime which is practical and at the
same time safeguards the legal profession’s core values.
The core values that we all maintain as lawyers include client privilege,
independence and freedom from conflict of interest. No lawyer worth his
28
Journal
MDPs
or her salt will shift from a strict adherence to
these concepts. They are the substance of the
professional standards and integrity to which Paul
Hally referred in “Maintaining the value of trust”
(Journal April 2002).
Control
To deal with the point that there is little demand.
Of course, until a service (or for that matter a
product) is actually available it is difficult to assess
whether there will be a demand. However, the
Institute of Chartered Accountants of Scotland
Magazine carried a straw pole of “The (sic)
leading law firms” on key issues. In answer to the
assertion “multi disciplinary partnerships would
benefit the legal profession in the long run”, 39%
agreed and 59% disagreed. Although a majority
resisted the concept, four in ten see it as a viable
option.
Standards
In their responses, the firms said that the clients
would decide. And, of course, that is right. It is
simply a further option open to the public. No
one will be forced to instruct an MDP. The extent
to which MDPs flourish or not will be
determined by the market and if one is a free
marketeer one should not have a problem with
that. Traditional firms will continue to have a
significant role in the market place and many
lawyers will choose not to work in an MDP
environment.
The crux of the matter is whether a business
structure can be developed which will provide
the intended benefits for client and professionals
alike whilst maintaining the core values. Alan
Paterson does not think that it can: “In terms of
the appropriate standards for MDPs it is unclear
where these common standards for all MDP
professionals/staff are to come from.” Past
President Martin McAllister said in April’s Journal:
“The (Law) Society remains opposed to MDPs
until its concerns about client confidentiality and
conflict of interest are addressed.”
I invite Professor Paterson and the Council of the
Society to enter into the debate and I offer this
model for discussion.
Structure
An MDP is a practice which includes lawyers as
partners or employees and those lawyers
provide legal services.
Lawyers who are members or employees of the
MDP have full authority and responsibility for the
management of the legal practice and the
provision of legal services by the MDP.
The MDP provides legal services in conformity
with the general requirements of the law and
established professional standards in relation to
areas such as client privilege and conflict of
interest.
Other Practice Members
The MDP must conduct its legal practice in a way
that ensures that the ethical duties of the lawyers
are not affected by other members of the MDP.
Branding
Clients of the MDP must understand when they
are purchasing the services of lawyers and
therefore the protections that they are entitled
to. The qualifications of the persons offering the
services must be clear. This could even be done
by requiring some label such as “Legal Division”.
MDPs expand the range
of services available from
one practice
Client Safeguards
The Law Society Accounts Rules will apply to all
client monies in connection with legal services
provided. There must be the requisite
professional indemnity insurance for the services
and the necessary contributions to the
Guarantee Fund based on the normal criteria.
Under this model, it is clear that lawyers
supervise or undertake the provision of legal
services.To an extent, therefore, legal services are
demarked from the other services provided by
the MDP.
I have referred to pressures which may be
forthcoming from the OFT. Legal professions in
other countries are choosing to manage the
process of change rather than resist it. Australia,
particularly New South Wales, has passed
legislation which will allow MDPs in substantially
the form above. There is pressure on the New
Zealand government to do the same thing. The
Law Society of England and Wales has plans to
introduce limited forms of MDP. It is reported
that these plans had reached an impasse because
of the need for primary legislation. Law Society
President David MacIntosh has speculated that
this was “probably because the Government
wants ‘full-blooded MDPs’”.
Of course, this movement is not universal. The
American Bar Association has twice studied
proposals to allow MDPs, but decided not to
support them. The CCBE is opposed to MDPs,
citing “relevantly different professional duties and
correspondingly different rules of conduct.”
Two further questions have to be addressed:
1. Should an MDP be controlled by lawyers? I
do not think that this is necessary, provided:
(a) no lawyer may enter into an MDP, with a
view to offering legal services, other than in
a form and manner which fully complies
with his professional obligations as stated
above.
(b) the non-lawyer members are under a legal
and binding requirement to avoid acting in a
manner which impacts negatively on that
obligation or which prejudices the interests
of a client of the legal practice.
The Courts should be entitled to intervene if
these obligations are not met.
2. Does Enron give the lie to the MDP
arrangement? I think not. The implications of
Enron for auditing are huge, but we should not be
too arrogant. The Clayton Utz case in Australia,
where lawyers destroyed documents in pursuit of
their clients’ interest, is a reminder that we can all
be subject to enormous pressures. I strongly
believe that lawyers cannot practice in the same
organisation as auditors. The conflicts (between
the “advisory” and the “supervisory” functions)
are too great. Indeed, it is quite possible that
accountants will find that auditing services have
to be separated from the remaining business, if
for different reasons.
It is easy to see this as an academic debate about
principles. But it is more important than that.The
provision of legal services within an MDP is the
choice of right for a lawyer and the choice of
service for the client. It expands the range of
services available to the client from one practice.
It enables the lawyer to work in a business
structure suitable for their needs and for their
career. The Law Society of Scotland should not
take the anti-competitive stance of the Dutch Bar.
John Elliot is chairman of Lindsays WS and a Past
President of The Law Society of Scotland.
e: rje@lindsays.co.uk
29
Journal
New York Bar
A bite
out of the Big Apple
When a fire left her homeless, Karyn Watt took the opportunity to enrol on a course to
sit the New York bar exams. She describes how she fulfilled the ambition of a lifetime.
On 31 October last year my washing machine went on
fire, blowing up my kitchen. This was not as rumoured
either a radical plan on my part to lose weight or the
washing machine’s failure to cope with my
undergarments. The result was that most of my house
was badly damaged, and I was to be homeless for the
next few months.
exams. I had enrolled on a seven week course designed
to be a refresher course for those Americans who had
just completed their law degrees or who had attempted
the bar exam unsuccessfully. I had no idea of what I was
letting myself in for. It had been some 20 years since I
had been at “School” (as they quaintly call it).
The loss of my Imelda Marcos collection of shoes, and
my “Billy Smarts Circus meets Liberace”collection of
suits was almost too much to bear. Whilst my pals were
sympathetic, they were concerned to hear that some of
my CDs may have survived.
The course was held in a building on Times Square. For
those of you who have been to NY you will know the
area round there is buzzing at all times of night or day.
Almost immediately, so was my brain. Since 9/11 the
security in NY has been very tight and I faced the
equivalent of the Spanish Inquisition at the doorway. I
think my best Aberdonian only served to confuse
matters.
I did not fancy selling the Big Issue. It was time to fulfil an
ambition of mine.For years I have been fascinated by the
American legal system. What attracted me? Was it the
excessive use of shoulder-pads in LA Law, the permatans sported by the attorneys in Dallas and Dynasty, or
the tunes in Ally McBeal? Who knows. What I did know
was that I fancied being part of it.
So it was that I found myself on a plane heading to New
York on the second of January to sit my New York bar
30
I set off to my first class with some trepidation.
Finally I was let into class and realised to my abject
horror that we were starting on Criminal Law. Ist degree
Homicide, 3rd degree arson, 2nd degree robbery… it
was all a blur of trigonometry. Then Evidence. Do you
know that a jury can validate written evidence, rather
than an expert witness? Then Procedure. I must try out
Journal
New York Bar
my new-found plea-bargaining skills
next time I am in Whighams Wine
Bar.
Real Property (Conveyancing to the
rest of the world) followed. I would
prefer to call it Surreal Property.
Our lecturer insisted on singing to
us to provide us with mental plugs.
This worked well as some of her
efforts were certainly unforgettable.
I had a lecturer from Alabama for
Contract law. The strong southern
drawl certainly made me question
whether we were both speaking
the same language.
How time flies when you are
enjoying yourself. Actually, I was, in
spite of having to work like fury. I
was staying in a wonderful boutique
hotel on 55th and 6th Avenue, just
round the corner from Carnegie
Hall. I’d like to say that I saw
something cultural there, but
actually I saw REM instead, who
were great. My boyfriend and I
joined a gym to try to work off the
excesses of the typical American
portions. Food servings over there
can be truly scary. At breakfast in
the hotel I often saw people create
Jenga-like towers of food out of
assorted bagels and muffins. And
the waffles, if you were brave
enough to attempt one, were the
size of a mini roundabout. I think the
philosophy is that if you are
spending $250 a night in the hotel
(who said NY is cheap), this consists
of $50 for your room and $200
worth of breakfast.
Small wonder then that I joined a
gym. The gym was about five
minutes away in the Rockefeller
Centre. I realised it was going to
have its moments when they
provided me with grey shorts and
t-shirt and I wandered into the
work out area like dumbo to find
that everyone else had their own
personal trainers and excellent
plastic surgeons. Not to be
outdone, I got myself a lesson with
a personal trainer. I introduced
myself. “Gee, you have a neat
accent“ he enthused “where are
you from?” “Scotland,“ I proudly
replied.
“Gee, I’ve never been to
Scandinavia,” he announced. Oh
well.
Back to class. At least I thought
Corporations would not be so
different. Silly me for jumping to
conclusions. I found myself having to
concentrate very hard on getting a
grasp of what really is a very
different legal system. My
experience of working in England
for a number of years certainly
helped. I also raised the class
average age by several years. When
I told my tutors and classmates that
I had come over with no previous
law. Just when I thought I had started
to get the hang of some of the NY
regulations, they had to go and
introduce a whole new set for the
rest of the states! And often there
was not a completely correct
answer.There would be two correct,
but one more correct than another.
Did I need a wee dram that night.
Was it all over? Sadly not. I still had
an ethics exam to sit. I can imagine
that a few of you who know me
might be thinking that for me, as an
Aberdeen supporter, that would be
the most difficult exam. How
difficult could it be, I thought.
Presumably I would just have to
mention that it is not a good idea to
steal your clients’ money. Was I in
for a shock.
The day of the exams approached.
Day one consisted of five essays on
the laws of NY, one file study and 50
multiple choice. I sat the exam,
along with about 3500 other
hopefuls, at Madison Square
Gardens. As the invigilator read out
the regulations, it stirred in me
those old feelings of nausea and
incontinence that I used to feel at
Aberdeen University on exam days.
I had not taken into account the
wackiness of the intertwining of law
and politics. In the exam, for
example, I was asked little gems like
whether or not a judge could sit on
a school board. I came away in a
state of confused exhaustion.
Last week I went onto the NY Bar
Association website to see if I had
passed. Miracles can happen .I had
passed. Sadly, my best chums in the
class did not pass. Of 3167 who sat
the February bar, only 1338 of us
were successful. The pass rate is
notoriously low and I spoke to a
couple of people who were
attempting it for the seventh time.
And for information, you need to
get over 82% to pass the MPRE
ethics section. I felt particularly
sorry for one of them. She had
worked for Amex in Tower Four of
the World Trade Centre, and had
obviously been deeply affected by
what she had seen on 9/11.
If you want to find out a bit more
about how to sit your bar exams,
I would recommend you look up
the Bar exam website
(www.nybarexam.com) and the
bar/bri site which tells you about
the courses available
(www.barbri.com).
The next day consisted of six hours
of multiple choice on the general US
Look out, Judge Judy.
You may have competition shortly!
I had not taken into
account the
wackiness of the
intertwining of law
and politics
experience of the US constitution,
had never studied US law, and was
learning their whole legal system in
seven weeks, I was met with
reactions which varied between
trying to have me certified and
simply guffawing in my face.
e: karynwatt@freenetname.co.uk
31
Journal
Budget
Traps
for
clients
and
advisers
Alan Barr wades through another impenetrable Budget to guide you through the basics and beyond
Gordon Brown just can’t let things lie. It seems that he
is almost pathologically incapable of letting well alone;
and each Budget and resultant Finance Bill must
slaughter a forest of trees (and, these days, bytes). At
least this time he has more of an excuse - he needs the
money. We all know why. But raising a huge quantity of
money can be done with a surprising economy of
words - indeed, this aspect has been achieved this year
(or, mostly, next year). However, there is still the
apparent need for a doorstop of a Bill, in two volumes
and mostly dealing with technical changes. (One volume
had mistakes in the numbering of Schedules and had to
be reprinted. Presumably that kind of thing is covered
from the contingency fund.)
Hundreds of pages, thousands of words, tens of
Schedules - it is manna from heaven for the tax lawyer
(I am sure you can imagine me capering and gambolling
with delight, thrilled at the new things to know about or not). Much of it is impenetrable. It will be pushed
through Parliament with the minimum of scrutiny.While
it will provide opportunities for those advising, it will
provide traps for their clients - and for many advisers as
well.The system really is creaking at the seams.
After the moaning (now almost as ritualistic as the
Budget itself), what did we get? This Budget was unusual
in some ways; and commonplace in others.
It was late - the first time in recent years that it has
been after the commencement of the tax year.This will
add to administrative costs. Its aim was to raise money
through taxes - an imposition which has generally been
32
unnecessary in recent years. It probably marked a
turning point in this Government’s economic attitude although in fact the tax burden has already risen
considerably since 1997, but generally by less forthright
and apparent measures.
And among the commonplace features? It contained as
many half-truths and worse as are the norm these days
(for the avoidance of doubt, as some lawyers say, that is
quite a lot of half-truths and worse).The devil is and will
be in the detail - and there is a lot of detail.
This Budget, as have all of those by Gordon Brown, also
looks forward with quite definite plans for future tax
years - sometimes quite a long way into the future.Thus
some figures are given at least for 2003-04, but other
plans stretch beyond such trivialities as the next
election.This in particular allows perceived Good Things
to be announced more than once (I calculate that the
cuts in capital gains tax have now been announced
approximately 3,892 times, for instance. For the
avoidance of doubt, the figure is a joke). It will be
interesting to see if the same applies to what might be
seen as Bad Things - will the rises in National Insurance
be trumpeted quite as many times, even if they do not
come into effect until next year?
As in recent past years, much of the Budget speech and
surrounding documentation was concerned with
spending. The November statement, which used to be
concerned only with spending, will no doubt look more
like a Budget again.The tinkering will go on.
Journal
Budget
The basics (and a bit beyond)
Capital Gains Tax (CGT)
Rates and allowances for income tax, corporation tax, capital gains tax,
inheritance tax and the pension schemes earning cap are set out in the
table below.
5. The annual exempt amount is
increased to £7,700 for individuals,
trustees of settlements for the
disabled, and personal
representatives of the estate of a
deceased person, and £3,850 for
other trustees. For individuals, the
amount chargeable to CGT is added
to the income liable to income tax
and is treated as the top part of that
total. CGT is charged at the following
rates: below the starting rate limit at
10 per cent, between the starting
rate limit and basic rate limit at 20
per cent, and above the basic rate
limit at 40 per cent.
INCOME TAX ALLOWANCES
Personal allowance
Personal allowance for people aged 65-74
Personal allowance for people aged 75 & over
Income limit for age-related allowances
Married couple’s allowance
for people born before 6 April 1935
Married couple’s allowance - aged 75 or more
Minimum amount of married couple’s allowance
Children’s tax credit
Children’s tax credit - baby rate
Blind person’s allowance
2001-02 (£)
2002-03 (£)
Increase (£)
4,535
5,990
6,260
17,600
4,615
6,100
6,370
17,900
80
110
110
300
5,365
5,435
2,070
5,200
1,450
5,465
5,535
2,110
5,290
10,490
1,480
100
100
40
90
30
Rates for trusts
CAPITAL GAINS TAX ANNUAL EXEMPT AMOUNT:
Individuals etc:
Other trustees:
7,500
3,750
7,700
3,850
200
100
INHERITANCE TAX THRESHOLD
242,000
250,000
8,000
PENSION SCHEMES EARNING CAP
95,400
97,200
1,800
TAXABLE BANDS 2001-02 (£)
Starting rate 10 per cent
Basic rate 22 per cent
Higher rate 40 per cent
0-1,880
1,881-29,400
Over 29,400
TAXABLE BANDS 2002-03 (£)
0-1,920
Basic rate 22 per cent
1,921-29,900
Higher rate 40 per cent
Over 29,900
CORPORATION TAX PROFITS 2001-02 (£)
0-10,000
Marginal relief
10,001-50,000
Small companies1 rate
20 per cent
50,001-300,000
Marginal relief
300,0011,500,000
Main rate 30 per cent
1,500,001
or more
CORPORATION TAX PROFITS 2002-03 (£)
Starting rate zero
0-10,000
Marginal relief
10,001-50,000
Small companies1 rate
20 per cent
50,001-300,000
Marginal relief
300,0011,500,000
Main rate 30 per cent
1,500,001
or more
The main rate of corporation tax for 2003-04 will be 30 per cent.
Notes
Income tax rates and allowances
1. The rate of tax applicable to
savings income in section 1A, ICTA
1988, other than dividends, is 20 per
cent for income falling between the
starting rate and basic rate limits.The
rates of tax applicable to dividends
are 10 per cent for income below the
basic rate limit and 32.5 per cent
above it.
2. The rate of relief for the continuing
married couple’s allowance and
maintenance relief for people born
before 6 April 1935, and for the
children’s tax credit, is 10 per cent.
3. As announced in Budget 2001, a
baby rate of children’s tax credit has
been introduced from April 2002.This
will mean that for these families CTC
will be worth up to £1,049 in the tax
year of the child’s birth.
4. For 2003-04, the income tax
personal allowance for those aged
under 65 will be frozen. The personal
allowance for those aged 65 - 74 will
be increased to £6,610, and for those
aged 75 or over it will be increased to
£240 above statutory indexation.
6. The rate applicable to trusts
remains unchanged at 34 per cent
for 2002-03 and the Schedule F trust
rate remains unchanged at 25 per
cent.
Inheritance tax
7. The value of estates above the
threshold is taxed at 40 per cent.The
threshold is being increased by
£3000 more than statutor y
indexation. The estimated number of
taxpaying estates in 2002-03 will be
about 24,000. This is around 4 in
100 deaths.
Pensions schemes earnings
cap
8.The main effect of the cap is to set
a ceiling on the contributions that can
be paid to, and the benefits that can
be paid by, tax approved pension
schemes. It generally applies to
people who contribute to a personal
pension scheme, joined o n
occupational scheme set up since 14
March 1989, or joined any
occupational scheme from 1 June
1989 that was set up before 14
March 1989. From 6 April 2001 the
cap will apply to people who
contribute to stakeholder pension
schemes.
Corporation tax
9. The corporation tax starting rate is
reduced from 10 per cent to zero for
companies with taxable profits below
£10,000.The small companies’ rate is
reduced from 20 to 19 per cent for
companies with taxable profits
between £50,000 and £300,000.
33
Journal
Budget
Following the changes made in the Budget, rates and thresholds are set out below.
Primary threshold
Secondary threshold
Employees’ primary class 1 rate on earnings between primary threshold
and upper earnings limit
Employees’ primary class 1 rate on earnings above upper earnings limit
Employers’ secondary class 1 rate on earning above secondary threshold
Lower profits limit (for self-employed Class 4 contribution)
Class 4 rate on profits between lower and upper profits limit
Class 4 rate on profits above upper profits limit
2001-02 (£)
£89 per week
£89 per week
2002-03 (£)
£89 per week
£89 per week
10%
11.8%
£4,615
7%
-
11%
1%
12.8%
£4,615
8%
1%
10. Marginal relief eases the transition from the starting
rate to the small companies’ rate for companies with profits
between £10,000 and £50,000. The fraction used in the
calculation of this marginal relief will be 19/400. Marginal
relief also applies to companies with profits between
£300,000 and £1,500,000. The fraction used in the
calculation of this marginal relief will be 11/400.
11.The profits limits may be reduced for a company which
is part of a group or has associated companies. The lower
rates and marginal reliefs do not apply to close investment
holding companies.
But in one of the Budget predictions which proved
correct, It is necessary to add the impact of National
Insurance to these basic figures before assessing the
effects of the Budget changes. The 2001-02 primary
threshold (below which contributions are not payable)
is £87 per week, or £4,535 per year - the same as the
personal allowance for income tax. The upper earnings
limit, above which limit earnings are not liable to
contributions, is £29,900
Following the changes made in the Budget, rates and
thresholds are set out in the table above.
There are some gaps in this table.The primary threshold
has a yearly equivalent of £4615 - again the same as what
will be the frozen income tax allowance. The upper
earnings limit has been fixed, with what some saw as a
surprisingly modest rise, at £30,420. The contrast with
the higher rate threshold for income tax (which, including
the personal allowance, amounts now to £34,515) will be
noted - and this may narrow further in future.
We have not been told what will happen to the higher
rate threshold for income tax, nor with the upper earnings
limit for National Insurance in 2003-04 - but equally we
have not been told that they will be frozen. If the UEL
were to rise with inflation it would go up to £30,920.
It can be readily seen that it is National Insurance which
is the area to watch. The introduction of an unlimited
band of payment at 1% looks like a wedge which could
yield more generous returns in future years.
National Insurance will make the difference in most tax
bills not only when comparing year to year - but most
especially when comparing the employed with (a) the
self-employed; (b) those who operate through
companies; and (c) most ironically of all - those who live
off investment income. Indeed, when the even lower
rates in capital gains tax for business assets is brought
into the equation, it can be seen that the very lowest
rates of tax can be enjoyed by those who live off
34
unearned income and who can realise substantial
amounts of capital. (For older readers, I would remind
them that this is a Labour government. This was not
formerly the way of Labour governments.)
The child tax credit, and its little sibling the baby tax
credit, will only exist in this form for one year.These are
quite valuable and should be claimed if available. Their
structure means that the credit is available to the higher
earner of a couple, who need not be married in order
to be a couple for these purposes. The amount on
which tax credit is given is reduced by £2 for every £3
by which the income of the higher earner exceeds the
higher rate threshold. This means that the baby tax
credit would finally disappear at an income of
approximately £50,250.The income of couples is looked
at individually, not jointly.
From 2003-04, it is all change again, with the children’s
tax credit and various child related items in various
social security benefits (including the Working Families
Tax Credit) being subsumed into what will be called the
Child Tax Credit. Despite its name, this is more akin to a
social security benefit and may be paid outwith the
PAYE system, directly to the main carer. Its rate depends
on the joint income of a couple - and it seems that it
will not disappear entirely until that joint income is
somewhere in excess of £60,000. Thus there be claims
to be made on behalf of people who would not usually
consider themselves to be eligible for social security
benefits! (This is a huge subject in its own right, which
frankly requires some serious consideration before
attempting to advise on it.)
It should be noted that the new credits and the fact that
they apply so far up the income scale will mean very
high marginal rates of tax for some taxpayers, when the
effects of actual tax, NI and the withdrawal of credits are
all taken into account. The marginal rate of tax/credit
withdrawal can rise to 60% on certain slices of income.
This will complicate “pure” tax planning even for the
moderately wealthy.
There is also to be Working Tax Credit, available in effect
to give a minimum income guarantee even to the
working child-free.This may be of particular interest to
employers with low-wage, part-time workers
Age-related allowances will continue to rise at least
with inflation (and this will be wage inflation, not price
inflation), even though the personal allowance is to be
frozen. (That freezing is in itself a significant Revenue
raiser for the Government.) The income limit for age
allowance has risen already, to £17,900 - which means
that additional allowances continue to be available for
elderly couples with quite substantial incomes. It should
also be remembered that for married couples one of
whom was born before 6 April 1935, there continues to
be a married couple’s allowance. This is truly an
example of a dying tax allowance, as its recipients
gradually succumb. One wonders whether the
allowance will disappear before all of its recipients, as
the wonders of medical science outstrip the economic
expectations of the Treasury.
Next month: Inheritance Tax and Stamp Duty
e: eulp01@srv0.law.ed.ac.uk
Journal
IT
Peer to peer
websites
– heathen chemistry?
The US music and film industries are spending millions on litigation
aimed at crushing the internet’s MP3 file-sharing site, writes Paul Motion.
P2P - the acronym that music and
film studios love to hate. It stands
for the “Peer to Peer” system of
computer file sharing, invented by
19-year-old US computer geek
Shawn Fanning. He it was who in
1999 set up the music swap
website, Napster. [If you think the
‘geek’ epithet is a tad unfair, ask
yourself who else would name his
company after his hairstyle...] And
here’s why the studios are worried
about P2P: global record and CD
sales fell 5% in the last 12 months,
their first ever fall.The studios blame
the P2P websites that enable MP31
file - swaps. There are now an
estimated 447,857,377 Internet
users and therefore potential fileswappers2. The music industry sees
the way forward as subscription
based MP3 websites3. Bertlesmann
Music has now effectively bought
out Napster and hired Fanning for
such a venture. The Internet public
however remains unconvinced. It is
still flocking to the free P2P swap
sites in vast numbers.
Napster Litigation, and the
“Betamax” Defence.
The movie studios are also worried
about Napster’s more potent 21st
century successors, websites like
Grokster, Morpheus and KaZaA.
Public demand for DVD movies is
increasing, but this entails the
conversion of soundtracks and
pictures into huge digital files. The
point being that ‘digital’ signifies the
ability to make unlimited perfect
copies of anything. And compressing
DVD copies down to MP3 format
makes those perfect copies
“swappable” over the internet for
the cost of a very long local phone
call.This is a problem for pop videos
as pirate copies released early can
play havoc with global marketing
campaigns, as Oasis found out with
their latest album, ‘Heathen
Chemistry’ which was leaked in full
on the Internet before official
release.
Fanning’s P2P software allowed
Napster users to connect with each
other and transmit MP3 files directly
from each other’s hard drives.
Napster was originally set up to
allow up-and-coming bands to post
their music on-line. Users very
quickly realised that tracks ‘ripped’
into MP3 format from their own
CDs collections could be swapped
and located on-line using Napster very much cheaper than paying for
the real thing! Or, as the music
moguls would have it, Napster
knowingly afforded unlimited scope
to plagiarise and copy music on-line.
Napster was quickly sued by A & M
records4, who argued the American
principle of contributory copyright
infringement. In the Napster appeal
(widely misunderstood in the press)
the Ninth Circuit in fact recalled the
injunction initially granted to A & M
in the district court.The appellate
35
Journal
IT
other ‘servers’ allow data to continue to flow. Once
users had downloaded the free software they no longer
needed to go via the main Morpheus (or KaZaA or
Grokster) server to do the file swaps.
On Kazaa’s own figures their software has been
downloaded 82,979,853 times in total 5 and a staggering
2,696,193 times in the week ending 27th May 2002
alone - even on an independent assessment6 .
judges
emphasised
a “clear
distinction
between the
architecture of the
Napster system and
N a p s t e r ’s c o n d u c t i n
relation to the operational
capacity of the system”.The court felt
bound to follow Sony Corporation v
Universal City Studios, Inc 464 US 417, 104 S. Ct. 774,
78 L. Ed. 2d 574 (1984). There, it was accepted that
although Betamax VCRs could be used to copy
television programmes, the manufacturers and retailers
were not liable for copyright infringement. This was so
since “…the sale of copying equipment, like the sale of
other articles of commerce, does not constitute
contributory copyright infringement if the product is
widely used for legitimate, unobjectionable purposes.
Indeed it need merely be capable of substantial noninfringing uses”5 . In recognising that there were
‘substantial non-infringing uses’ for the VCRs, the court
would not impute constructive knowledge in the
manufacturers or retailers. Napster’s much-publicised
shut-down was not in fact ordered directly by any court.
Napster had to close because it could not comply with
a “zero infringement” standard (imposed by the district
court) in the operation of its centalised file-indexing
service.
The Next Generation - Grokster, Morpheus
and KaZaA
Learning from Napster’s mistakes perhaps, a second
generation of file swap websites quickly sprang up, based
on the open-source Gnutella format. Crucially these
websites unlike Napster did not hold any information on
their servers about the possession, receipt, transfer,
searching, or indexing of media files by their users. The
new sites - Morpheus, KaZaA and Grokster - were part
of an international file-sharing network using Version 1.3
of ‘FastTrack’, a software licensed by Consumer
Empowerment of the Netherlands.
FastTrack turns individual users’ hard drives into servers.
Rather like a spider’s web, if one ‘server’ breaks down,
36
All three sites have now been sued for copyright
infringement, in the USA and elsewhere, by a variety of
American movie and music interests. West Indies-based
Grokster is understood to be running out of money and
may abandon its defence. The trading company KaZaA
BV, based in the Netherlands, scored a surprise victory
when on 28th March 2002 an appeal court in the
Netherlands overturned a lower court’s ruling that had
held KaZaA BV liable for copyright infringement. The
appeal court stated that KaZaA BV was not responsible
for the illegal actions of people using its software. That
decision - the first anywhere to protect a file swapping
website against liability for copyright infringement - gave
hope to the P2P companies. However, KaZaA too has
experienced financial difficulties. The trading company
was sold to Sharman Networks, a Vanuatu company, in
February 2002. The FastTrack software has just been
licensed to a California partnership involving Brilliant
Digtal and Altnet. KaZaA BV itself has ceased trading and
conceded a default judgment in the Netherlands.
Morpheus too was sued by the RIAA7. It had hired for
its defence one Andrew Bridges, the attorney who in
1999 successfully defended Diamond Multimedia’s ‘Rio’
MP3 player from the attentions of the RIAA8. One of the
cornerstones of the Morpheus defence was the
“Betamax” principle above, the other being that
Morpheus had no control or influence over its users,
hence the appeal court’s ruling in Napster also favoured
Morpheus . This latter thread of the defence however
came spectacularly unstuck in March 2002. The
Morpheus network, distributed by Nashville’s
Streamcast Networks, crashed early one Tuesday
morning when a software upgrade changed how the
system operates. Morpheus later blamed the problem
on hackers but the point had already been made: the
whole network could be brought down, implying its
dependence upon a central point of control. Morpheus’s
motion for summary judgment dismissing the RIAA
action for want of evidence was ruled premature on 5th
March 2002. The action is now due for jury trial in
October 2002. However on 23rd May 2002, Bridges
announced he was pulling out of the case as Streamcast
could no longer afford his fees. Morpheus now plans to
begin distributing music protected by its own digital
rights management technology - possibly to assuage
those lingering concerns as to its legitimacy? In the
meantime it is looking for new counsel. Interestingly,
Morpheus also prays in aid of its case the Gutenberg
Project (http://promo.net/pg/), whereby its technology is
Journal
IT
notes:
helping convert to digital form, and
to supply free on the Internet, the
King James Bible, the collective
works of Shakespeare, and the CIA
World Fact Book.
UK Position
The P2P / MP3 issue per se has yet
to be tested in the UK courts. Here
it is illegal to “circumvent a device of
copy protection knowing or having
reason to believe that it will lead to
infringing copies”9 . The UK courts
have been prepared to look at the
copyright holder’s intention in
relation to Sony Playstation DVDs10.
A ‘superchip’ that circumvented
coding on the DVD intended to
prevent copying was held illegal
under the CDPA 1988 [whereas it
was arguably not illegal under the
EU’s Software Directive11]. The
court decided it was enough that
the superchip might permit
infringing use, and that the importer
knew this to be a possible use.
Usenet
The irony is that, for all the
prodigious P2P / MP3 litigation
unleashed against the newcomers
since 1999, one of the older (and
geekier?) areas of the Internet could
yet rise to become the unregulated
file-swopping Nemesis of the music
and movie industries. Usenet
“newsgroups” provide forums for
anyone, anywhere in the world, to
post “messages” about anything.This
is confusing terminology, because a
lot of these newsgroups contain no
actual news whatsoever and nor do
many of the messages. Very often
the news server operators accept
material with no vetting and
exercise no control over content.
Large numbers of the “messages”
are in reality the components of
dissected MP3 music and video files.
Numbers of Usenet users are
difficult to estimate. However as an
indication of the volume, one might
note that in February 2001 the
operators of the Google search
engine www.google.com bought up
the archives of former Usenet
o p e r a t o r w w w. D é j à . c o m –
comprising a library of some
650,000,000 Usenet postings from
mid 1995 onwards, representing in
effect a global history of the early
Internet. If somebody posts a
message on a particular subject it
will end up on the computers of all
ISPs which offer Usenet and decide
to take the newsgroup dealing with
that subject.There are already large
numbers of newsgroups offering
binary music and video files
[alt.binaries.mp3.sounds.80s for
example]. The material can be
accessed, and the dissected files
readily reassembled, using
‘newsreader’ programs such
as Grabit
http://www.shemes.com/grabit/ and
Forte Agent
http://www.forteinc.com/agent/inde
x.php.
Summary
The spectacle of industry giants
cr ushing the minnows into
submission is not new to the courts.
Nor as a matter of natural justice is
it a particularly appealing sight.
Standing the number people willing
(apparently) to transgress the law in
order to access the music and films
they choose, two issues arise. First, it
would be desirable for at least
some of these litigations to
conclude in the usual way, in order
to establish some legal principle,
rather than witnessing Internet
start-ups having to concede
through lack of resources. Second,
perhaps the recording and film
industries should reconsider their
present packaging and pricing
structures. Do people really want to
pay for twin-disc DVD sets with
endless out-takes, interviews, and
‘the-stor y-of-the-making-of ’
footage, or would they perhaps
rather just pay less watch the film?
Perhaps it is time for the RIAA and
its colleagues to divert their time
and resources (individually or
collectively) away from litigation and
towards offering the public some
on-line products they will actually
want to buy - via competitive,
micro-priced, P2P websites for
example.
Paul Motion is a partner with
Ledingham Chalmers and is the
Convener of the Society’s Electronic
Commerce Committee. This article
represents a personal viewpoint.
e: paul.motion@ledinghamchalmers.com
37
1 Moving Picture Experts Group
(MPEG), is the nickname given to
a family of International
Standards used for coding audiovisual information in a digital
compressed format. MPEG Third
Layer or MPEG-1, audio layer 3
(MP3) is a method of squashing
music and video files to about
one twelfth of their size. Smaller
files can be more easily stored or
transmitted.
2 (Source : http://www.nielsennetratings.com/hot_off_the_net.js
p March 2002).
3 For the record, the Recording
Industry Association of America’s
goals for the new millennium are
stated to be “To work with our
industry and others to enable
technologies that open up new
opportunities but at the same
time to protect the rights of
artists and copyright owners”.
4 A & M Records, Inc. v. Napster,
Inc., 239 F.3d 1004 (9th
Cir.2001)
5 (Source :
http://www.kazaa.com/en/index.htm )
6 (Source :
http://download.com.com/31012025-0-1.html?tag=dir ).
7 Metro-Goldwyn-Mayer Studios.,
Inc, et al v Grokster, Ltd,
Streamcast Networks, Inc, et al ,
District Court, Central District of
California, Western Division, Case
No. 01-08541 SVW (PJWx)
8 RIAA v Diamond Multimedia
Systems, Inc., 180 F.3d 1072
(9th Cir.1999)
9 Copyright, Designs and Patents
Act 1998, s 296 (2).
10 Sony Computer Entertainment
v Edmunds T/a Channel
Technology, High Court 24th
January 2002, Jacob J.
11 Directive 91/250/EEC permits
circumvention of software copy
protection provided this is not
being done solely to make illegal
copies of the software.
Journal
Conference
President of the Law Society of Northern Ireland Alan Hewitt
with Martin McAllister and Justice Minister Jim Wallace.
Legal services
There is a growing interest within
Government in “looking at legal
services through a market lens”,
Justice Minister Jim Wallace told
delegates in the keynote speech at
the joint conference of the Law
Societies of Scotland and Northern
Ireland at St Andrews last month.
“It provides a way of illuminating
some key questions – are legal
services providing better services
to business, better access to justice
for individuals, value for money for
the taxpayer, and enhanced income
to the domestic economy? It is a big
agenda and one on which we will
need close and creative discussions
with The Law Society of Scotland.”
He said this points to some
exploratory work around the
structure and organisation of legal
services.
“Government already intervenes in
both the demand and supply sides
of legal services; and we need to
carry through this work if we are to
be clear about the function, cost
and impact of Government
intervention.
“The rationale for regulation and its
methods and tools have to reflect
the context provided by the market
and until now our understanding of
the dynamics of this market and its
trends has been limited. We mean
to improve on that.
38
“In that process I expect we will
need to examine some potentially
very large topics, such as the
market in community legal services
and ADR; new forms of supply
including so-called ‘advice lines’; and
new forms of private funding
through insurance or indemnity. No
doubt we will also need to ask
questions about the continuing
relevance of the firm as the
organisational unit of delivery.”
Addressing the economic debate
over satisfying clients’ demand can’t
progress without addressing issues
of quality of legal services, said the
Deputy First Minister.
He said there were many examples
of excellent practice within the
profession in dealing with
complaints, sharing a fundamental
commitment to positive quality
assurance.
“I have absolutely no doubt that we
all need to develop the mind-set
that sees complaints as a positive
aid to improved business practice –
as an opportunity and challenge
rather than a threat or obstacle.
“That means entrenching the
behaviour, habits, standards and
management models that should
minimise complaints in the first
place; and having a well-developed
and positive response to complaints
when they do arise. One of the
particular challenges facing the legal
Journal
Conference
The St Andrews Bay Golf Resort and Conference Centre was the setting for May’s Conference
through a market lens
profession is how these approaches
can be harnessed by small firms
whose resources are already fully
stretched.”
Turning to legal aid and access to
justice, he said “it is not a perfect
system, there is room for
improvement”.
Highlighting “significant
improvements” such as the
extension of legal aid to tribunals
and new arrangements for granting
of urgent legal aid, he said “all of
these changes should bring real
benefits from the client’s
perspective”.
“But I am well aware that the
system will only work effectively if
there are sufficient solicitors to
undertake legal aid work and
recognise that the fees for such
work are an important factor. I am
very conscious that fees for such
work have not changed for some
time and have said that I would be
prepared to consider an increase –
provided that it is accompanied by
the introduction of a robust quality
assurance system to give the clients
the reassurance they expect and
deserve about the service they will
receive.”
On criminal legal aid, he said the
fixed payment system for summary
cases “has settled down well and
successfully weathered the various
challenges that some have raised
against it”.
However, he expressed concerns
about access to legal services.
“I am concerned that people
sometimes don’t understand the
services available to them; don’t
know where to turn, and get lost in
the system. I am also worried that
the provision of the services that
people need may be patchy, both in
geographical and sectoral terms.
“We need to develop more
effective referral systems, we have
to look at innovative ways of
delivering services, particularly in
remote areas and we need to make
progress towards robust and
transparent quality systems.”
Former Foreign Secretary Malcolm Rifkind
spoke about foreign affairs in the
post-September 11th climate
39
Journal
IT Systems
Back on the case
After a slow start, Nicola Gaunt finds that
case management systems are becoming an integral part of law firms’ working structure
Case management systems got off to an
inauspicious start in many law firms. David
Jamieson, IT Manager at Semple Fraser, tells a
familiar tale. “The firm first implemented a case
management system for commercial property
purchases three years ago.The fee earners found
it required too much manual input; it increased
their workload rather than decreasing it.
Eventually they stopped using it altogether.”
New technologies invariably suffer from growing
pains and case management software was no
exception. But Semple Fraser is now trialing its
case management system, using the same supplier’s
software, for debt recovery work. At the time of
going to print, the pilot had been running for just
over a month and Jamieson says the feedback from
the fee earners has been “very positive”. He
attributes this initial success second time around to
improved software, and also in part to the clear
structure of debt recovery work that lends itself to
using automatically generated templates.
Case management systems have evolved over the
last five to ten years as an extension of the practice
management products – accounting, cash
management and time recording software –
traditionally offered by providers. Now there are a
host of different suppliers with as many case
management software applications to choose from.
Those on offer typically include modules for debt
recovery, conveyancing, litigation, remortgaging and
personal injury. Simon Hill, managing director of
Technology For Business (TFB), estimates that the
top 50 law firms in England are now using some
form of case management system. Overall in
Scotland, no more than 25 per cent of firms are
using one. “This means there is still a first mover
advantage for those that embrace the technology
now,” said Simon Hill.
What’s in it for my firm?
Improved firm-wide administration and risk
management are the key benefits often cited by
convinced users. Increasingly, case management
systems are being used across a firm’s whole
practice for standard functions such as file
opening and review procedures. “This proactive
approach to risk management is enabling some
firms to get reductions in their professional
indemnity insurance,” said Brian Douglas, business
development manager at AIM Professional
Systems.
Nevertheless, suppliers themselves readily admit
that early incarnations of case management
systems were imperfect. “Previous case
management systems were too structured and
inflexible, but modern case management systems
can be adapted to suit an organisation’s working
practices or even an individual’s preferred
method of working,” said Brian Douglas.
Gerry Buchan, sales director of Bridge of Allan
based GB Systems, agrees: “Unfortunately many
of the clients that come to us have had a bad
experience with a case management system. Lots
of firms bought a software package five years ago
and have never used it. But when we show them
what we can do today they are convinced.”
Peter Scott, partner responsible for IT at Stirling,
Eunson & Ferguson, a six partner firm based in
Dunfermline, said: “Whether the profession likes
it or not, they will have to use this technology
eventually as it improves both the cost and
quality of the work.” The firm first implemented
GB Systems’ Lawmaster two years ago for high
volume remortgaging work. “It has certainly
improved our working practices. It may take a
little longer to set up a case, but thereafter it
practically runs itself and the partner concerned
is only alerted with updates or if there is an
exceptional event that requires attention.” The
firm is now in the planning stages of extending
this to conveyancing, followed by court work.
Having a case management system has enabled
Paisley based Walker Laird to punch above its
weight for work against firms in Glasgow and
Edinburgh. “If we did not have the technology, “
said partner Ronnie McGinlay, “we would not
have a hope of winning comparable business.”
The firm first implemented AIM’s case
management software in 1999 when it was
tendering for bulk remortgage work with two
large lenders. “We won both contracts and I
believe we hold the British record for going from
inception-to-live with a case management system
in only 23 days.” On the back of this initial win,
Walker Laird is now contracted to carry out
remortgage work for half a dozen mortgage
lenders and the firm has extended its use of its
case management system to personal injury and
motor accident claims.
Giving clients online access to their cases
Giving clients access to their case online, via a
secure link to their solicitor’s case management
41
Journal
IT Systems
system, intranet or a site hosted by a third party
supplier, is a possibility that has been on offer for
some time.
One firm that is a veteran in this department is
Golds Solicitors in Glasgow. The firm has been
giving its clients live access to their files on the
firm’s in-house case management system,
WebLex, for four years. Golds’ partner Ellis
Simpson believes it was the first firm in Scotland
to do so. He says that there are no hard and fast
rules as to which clients are given access and
what they are given access to. “Our clients tell us
what they need and we tailor what they can see
on the system accordingly. This can even extend
to allowing third party financial intermediaries,
authorised by our clients, to see relevant
information online.” Simpson says there is no
doubt that this capability wins the firm business.
“Clients like it because our performance is totally
transparent. At any time they can check the
progress on their cases, and also that we are
doing our job efficiently.”
Morton Fraser in Edinburgh is also offering its
clients live access to its case management system.
“This is a new development for us,” said Ian
Thomson, partner. “Previously, clients were given
online access to their files, but the information
was not live. Reports were posted on the web
server and updated every night.” This service is
being introduced initially for Morton Fraser’s
larger clients – especially those involved in
commercial estates management and
remortgaging work, but the plan is to make the
service available to all clients. For those clients
with high volume work or consumer facing work,
Thomson believes that being able to offer this
service is “almost vital.” “It does not replace
personal contact, clients still want to speak to
you. What it does do is give clients a means of
checking up on progress without picking up the
phone, and also assists with their record keeping.”
But not all firms are convinced that the time is
right to give their clients online access to their
cases. Stirling Eunson & Ferguson’s Scott remains
unconvinced, “In our view, the case management
system reduces our administrative workload and
frees us up to offer a more personal service to
our clients. If you don’t keep talking to clients you
may miss a piece of information that is relevant to
their case, or miss an opportunity to broaden the
business relationship. Giving our clients online
access to their case is unnecessary at this stage,
although I wouldn’t rule it out in the future.”
Remote working
Giving clients web access to their cases is not the
only recent development in this area. TFB has
come up with another facility, conversely
facilitating solicitors’ ‘offline’ work. Simon Hill,
managing director of TFB, said: “A lot of client
have complained bitterly about not being able to
work effectively when they are away from the
office, either at a client’s, in court or working from
home.” In response to this, TFB has developed a
product called Remote Partner, part of the
MaRTHA (Mobile RemoTe Handheld Access)
range of products, that allows solicitors to work
offline. Users can copy all relevant information
relating to the case from the firm’s case
management system onto their laptop before
they leave the office. Hill says it is much more
reliable and secure than copying over a few Word
and Excel files.The roving solicitor can now work
as effectively as if he or she were in the office.The
case information can be updated by
synchronisation, by dialing into the office and
doing an ‘info swap’.
Already five of TFB’s clients in England have
started using Remote Partner, one of whom has
300 users.
The current case management systems are
clearly much more flexible and sophisticated than
their predecessors. But as Peter Scott from
Stirling, Eunson & Ferguson points out, there are
still no shortcuts. “The biggest investment when
implementing a case management system is not
the money, but the time involved in developing
the templates and training staff.”
Scott says it took between six months and a year
to see the benefits, but that now, “there are no
doubters left within the firm.”
Journal
Websites
This column now has a different format. Each month, Derek O’Carroll, Advocate,
will be reviewing a selection of the best websites in particular areas of law.
This month, it is human rights. Readers who have any comments on this page
or suggestions for sites to be reviewed or legal areas to be covered
should e-mail him at jlsswebreview@blueyonder.co.uk
www.echr.coe.int
www.lcd.gov.uk/hract
European Court of Human Rights site. Includes
press releases of all new judgments together with
summaries and links to the full judgment.
Contains an interesting section listing nearly 300
cases and the effect that they have had on
domestic laws. Also full versions of some basic
texts (such as the rules of court), lists of pending
cases and summaries of cases dealt with since
1999. The texts of the judgments are on
HUDOC: see below.
Usefulness ◆◆◆ Site design ◆◆◆◆
Updating Frequency ◆◆◆◆◆
The Lord Chancellor’s Department Human
Rights Unit has its own section of the LCD
website. Contains various official documents
relating to the 1998 Act but shies clear of
caselaw. The three official reports on the impact
of the 1998 Act on the English courts are
interesting as are the statistics (e.g. 1 in 6 HR
claims were upheld in the first year). Potentially
useful links to ministerial statements and
parliamentary material etc.
Usefulness ◆◆◆ Site design ◆◆
Updating Frequency ◆◆◆
http://hudoc.echr.coe.int
Place of first call for full judgments of the
European Court of Human rights and the
Commission too. Judgments are searchable by
loads of parameters. Not always easy though to
find what you’re after. Not all are in English so you
can learn legal French vocabulary too. Marks are
tout droit…
Usefulness ◆◆◆◆◆ Site design ◆◆◆◆
www.beagle.org.uk/hra/newindex.htm
Homegrown resource on UK human rights law.
Contains text of the Human Rights Act 1998, the
text of the Articles of the Convention
incorporated in the Act (plus links to summaries of
various cases and links from there to the full text
of the judgment). There are over 400 searchable
summaries of HR cases.The link to Judicial Studies
Board case summaries of European judgments is a
useful, if outdated resource.
Usefulness ◆◆◆◆ Site design ◆◆◆
Updating Frequency ◆◆◆
www.swarb.co.uk/lisc/Human_Rights.h
tml
Another homegrown site, this one by web
veteran Swarbrick. It summarises some lots of HR
cases, both UK and European together with links
to the full text.The good news is that this is free.
The bad news is that access, through
Lawindexpro, to cases less than a year old (and
the full database over all areas of law) costs cash.
Subscriptions start at £15.
Usefulness ◆◆◆ Site design ◆◆
www.yourrights.org.uk
At last, Liberty (or NCCL in hippy-speak) have
got round to publishing a site on human rights
law. It claims, puzzlingly, to be the first dedicated
web-based human rights information service. The
material on the site is based on the text of a
book “Your Rights” and is structured by reference
to subjects areas (e.g. mental health law, property
law etc.). The text is neatly broken up but very
short and not up to date. The site is still under
construction, so maybe one to watch.
Usefulness ◆◆ Site design ◆◆◆◆
Updating Frequency ◆◆
www.hg.org/human.html
For international aspects of human rights, this
Hieros Gamos portal is hard to beat. A massive
collection of international materials including
treaties, conventions, human rights organisations,
academic literature and sites, US caselaw etc.
Searchable too: though easy to get lost. Try also
www.yale.edu/lawweb/avalon/diana/index.html
for a similar project.
Usefulness ◆◆◆◆◆ Site design ◆◆◆
Updating Frequency (unknown)
www.doughtystreet.co.uk
The Doughty Street Chambers website has a
small section on human rights. Most useful is the
set of links to human rights sites including sites
providing human rights materials in other
common law countries. You can also subscribe
(free) to their HR updater.
Usefulness ◆◆◆ Site design ◆◆◆
Updating Frequency ◆◆
www.lawtel.co.uk
www.lawreportsonline.co.uk/lawreps.nsf
UK Human Rights Reports
www.butterworths.com
Butterworths Human Rights Direct service
www.sweetandmaxwell.co.uk/westlaw
The Westlaw Human rights service
www.justis.com
Caselaw and commentary with the magic J-link
43
Journal
Criminal Courts
Visions of a
reasonable observer
In his ongoing series rounding-up cases from the criminal courts, Sheriff Andrew Lothian
examines issues including appeals on grounds of an improper defence and delay
For a long time it was thought that as far as appeals
against conviction went, the ground that the defence
case had not been put forward properly was a nonstarter.That this is no longer the case can be seen from
a couple of reports in 2002 GWD 13, namely E v HMA
(407) and Gillespie v HMA (413). In E it was successfully
argued that a substantive line of defence, which might
have led to the jury being in reasonable doubt, had not
been sufficiently put forward. The case involved the
alleged rape by the appellant of his two infant daughters.
The appeal court was of the view that in as much as the
case involved evidence from the children, the question
as to whether or not they had been manipulated by
their mother should have been more forcefully put. It
was also considered that the defence should have
presented evidence to show that the interview
techniques used were flawed. It cannot be said that the
case makes comfortable reading and this is highlighted in
the differing approaches of Lords Gill and McCluskey on
the one hand from that of Lord Hamilton, who
dissented on the question as to whether the verdict was
one which no reasonable jury could have reached. In
Gillespie the claim of inadequate representation, which
was certainly far weaker, did not find favour with the
appeal court. In both cases, however, it is clear that the
appeal court is willing to consider the conduct of the
defence as one of the necessary elements in the
securing of a fair trial, which is nothing if not far reaching
in its implications. I wonder what the duty of a presiding
judge who considers that an accused person has been
inadequately represented might be; anecdotally one
hears that it happens all the time! One recalls to those
old stagers who would never put an accused in the box
on the grounds that all you were doing was chucking the
crown an extra prosecution witness. Where would they
stand today?
European jurisprudence
Among the chattering classes of the criminal world, a
proposition that often has come in for comment is the
assertion (unvouched) in Macdonald that all shamelessly
indecent conduct is criminal. If this means any more
than that all criminal conduct is criminal, what exactly
does it mean? The saga continues with the big guns of
European jurisprudence being brought to bear on,
among other cases, Watt v Annan 1978 SLT 198. The
case, Webster v Dominick 2002 GWD 306 has been
sent to a court of five judges, so watch this space.
Perhaps one day a satisfactory answer will be given to
44
the question heard by the present writer posed in the
appeal court by the ever-subtle Lord Walker – “What if
an actress came on stage with her breasts bare and
everyone wanted to see them?”
Delay cases
Of the recent delay cases, two in 2002GWD are worth
a look. In Dickson v Cunningham (362) the court
expressed the view that while the delays under
consideration were substantially longer than the court
wished to see (in dealing with pre-trial issues) they were
not long enough to justify a plea in bar. The case is of
interest in that the appeal court indicated that it might be
necessary at some stage to consider whether it was
appropriate in assessing delay to take into account any
failure on the part of an appellant to expedite matters.
Napier v McLean (363) is a successful crown appeal
against the dismissal by a sheriff of a complaint involving
charges of indecency. Once again the delay is categorised
as being longer than one might wish but not so long as
to demand an explanation. The court observed that it
was important that the crown should have adequate
information to put before the judge of the first instance
and it was unfortunate that that had not been the case
here. It would appear from this that the crown may be
entitled to two bites at this particular cherry and that if a
sheriff reaches a certain decision on the basis of
information before him or her, the appeal court may
reach a different conclusion on the basis of further and
better particulars. No doubt the appeal procedure
occasioned by all this adds to the general delay.
Fairness
2002 GWD 10 includes a number of “fairness” cases.
Mudie v Wheelan (309) involves a successful bill of
suspension.The justice in question had been seen by the
accused to be having a conversation with two police
officers, the only crown witnesses in the case. While the
appeal court stated that there was no reason to doubt
the impartiality of the justice in question, it was held that
the circumstances were such that there would be
created in the mind of the reasonable observer a doubt
as to impartiality. Well, obviously justice must be seen to
be done and I do not want to turn this reasonable
observer, to whom I have referred on other occasions,
into a hobby-horse, if I may be permitted so inelegant a
metaphor. But I wonder if the observer would know that
the justice had taken a judicial oath and in the
circumstances might well be discussing something else.
Journal
Criminal Courts
The reasonable observer appears
again in McDonald v Craigen (310)
(I am beginning to visualise this
individual; if female, a sort of mother
of two with a part-time job in
marketing, if male something along
the lines of a senior librarian in a
medium-sized Scottish burgh – I am
driven to this because I am not sure
of the qualities which this individual
otherwise possesses although I
understand that one judge in the
past spoke of the sort of person
who cuts the grass in his shirt
sleeves at the weekend). In that case
the presiding sheriff had made
certain observations about the
a p p e l l a n t ’s e v i d e n c e a t t h e
conclusion of his evidence in chief in
such a manner as to suggest to a
reasonable observer that he had
reached a concluded view about the
appellant’s guilt before all of the
evidence for the defence, including
his answers in cross examination,
had been heard. Shevlin v HMA
(311) is illustrative of the sort of
problems that can crop up when
there is more than one accused. In a
murder trial, each accused blamed
the other and in his speech to the
jury, counsel for one made much,
inter alia, of the fact that the coaccused had remained silent at
judicial examination. It was argued
that as there were restrictions on
what a judge or prosecutor might
say about an accused’s silence, the
same should apply to counsel for a
co-accused. To state the argument is
really to refute it: the court held that
there is no such rule nor should
there be. The position of the
defence is quite different from that
of the crown or the judge and in
particular a defence lawyer has to
be able to comment in full on the
content and quality of any evidence
led in support of the co-accused’s
case. No doubt this is of particular
importance when one accused
blames another. Reference was
made to the English case of R v
Wickham (1971) 55 Cr App R 199
and the approach taken by the
court in that case was described as
consistent with Scots law and thus
of application. It was emphasised,
however, that it was important that
if comment was made on silence, it
should be acknowledged, if
appropriate, that the person in
question was entitled so to remain.
Criticism was however made of
counsel’s remarks on grounds of
lack of care and precision but in the
circumstances (the transcript
referring to some words as
inaudible) it was not possible to say
that there had been impropriety. It
was also observed that even if they
had the matter had been addressed
in the judge’s charge in respect of
the right to remain silent in such a
way as to avoid irremediable
One wonders just
what novel points the
new procedures
involved in the drugs
court will produce
damage to the appellant’s defence.
Hicks v HMA (312) also involves
comment about silence at the
judicial examination stage, on this
occasion by the judge. The appeal
was in respect of a conviction for
murder. It was argued that the judge
had misdirected the jury by inviting
them to disbelieve the appellant’s
evidence that he had been advised
by his solicitor not to say at judicial
examination that he had acted in
self defence or that the stabbing in
question had been accidental. (A
special defence of self-defence had
been lodged subsequently.) The
situation is a difficult one, since if
judicial examinations are to be of
benefit to everyone (including the
accused) they should be an occasion
for candour but on the other hand
the proper scope for comment is
interfered with if the defence agent
attempts to take the blame, or
responsibility, for silence. This was
recognised by the appeal court who
refused the appeal, essentially on
the basis of the general fairness of
the charge. Defence agents might
do well to ponder the observation
of the trial judge, not disapproved by
the appeal court, that it would be“
more difficult to conclude that a
special defence had been fabricated
at a later date” if it had been stated
at the judicial examination. Perhaps
Parliament should give thought to
forbidding special defences unless
stated at least in outline at the
earliest appropriate stage. Gardiner
v HMA (313) is an unusual case in
that the appeal court stated that in
a trial by jury that although the
sheriff had been wholly wrong in
repelling an objection to hearsay
evidence, nevertheless his failure to
give the jury general or particular
directions about hearsay was not
one which no reasonable sheriff
would have reached. It seems to
have been of importance in the case
that the evidence in question had
been given a couple of days before
and had not been referred to in the
speeches to the jury.
Drugs Court
And, finally, since there is no
therapeutic rose which does not
have its thorns, one wonders just
what novel points the new
procedures involved in the Drugs
Court, and Drugs Treatment and
Testing Orders generally will
produce. As a start, Tweedie v
Higson 2002 GWD 10-314 is a
successful appeal for various reasons
from a decision of a magistrate
revoking a DTTO and substituting
imprisonment and involves
recognition by the High Court that
the purpose of such orders is to
secure at least the reduction, if not
elimination, of drug dependency
and use.
45
Journal
Risk Management
Professional
risks –
self
assessment
Do you consider you and your colleagues to be ‘risk aware’ in the sense of being aware
of the risks in your area of practice of claims and complaints arising? Would you expect others to
agree with your own assessment? This month, Alistair Sim comments on how we individually perceive
and how we might assess our personal approach to managing professional risks.
How would you assess your level of awareness of
professional risks, ie. your awareness of the risk of claims
and complaints arising out of your client work? What is
your personal attitude towards risk and risk control?
Are you fully aware of how risks are capable of being
controlled?
Your own awareness of and attitude towards the
professional risks you run in your practice are relevant
to the exposure of your practice to claims and to
complaints.
46
Naturally, attitudes and awareness vary. This has been
illustrated, for instance, by the differing reactions and
responses to the risk issues raised in some of the case
studies discussed in the current series of Risk
Management Roadshows.
To take one example, some participants have indicated
that, subject to compliance with the Conflict of Interest
Rules, they would be prepared to accept instructions to
represent the interests of various family members in a
joint property purchase/funding transaction. Others
Journal
Risk Management
take a different view of the same set
of circumstances and consider it
unduly risky to accept instructions
to act for all the family members.
They would prefer to represent
one interest only and decline to
represent the others.
Perceptions of risk
awareness/attitude
Our own personal perceptions in
relation to risk can be misleading.
We may genuinely believe that we
are risk aware and that we only
practise in a safe and defensive
manner but, when compared with
the approach that others adopt to
the same risk issues, our awareness
of and attitude to risk may be
shown to be quite different.
Many practitioners against whom
claims are made have a genuine
belief that they could not have
avoided the situation in which they
find themselves; that they did all
they could to avoid a problem; that
they practised safely and defensively.
The reason for the claim they
attribute to bad luck, a malicious
client or a “unique” set of
circumstances.
truly objective measure but it can
be very instructive to go through a
(self) assessment using a variety of
measures.
There is an example of a selfassessment questionnaire in
“Ensuring Excellence, Even Better
Practice in Practice” (p.30). It is
aimed at assessing the extent to
which risk awareness and risk
management can be demonstrated
across a whole practice. The
questions which follow are aimed at
assessing your individual attitude
and behaviour in relation to risk.
■
Would you feel unable to
solicit help to alleviate the
pressure of workloads?
■
Do you find that you
sometimes just process a
transaction without stopping to
consider conflicts or potential
conflicts or the risks for you or
your clients?
■
Do you have lapses of
concentration because of
working very long hours or
because of fatigue or pressures
of workload? Do you carry on
working?
■
Do you find yourself cutting
corners in relation to client
work because of the pressures
of time/workloads?
■
Do you ever give the firm’s
undertaking in respect of
matters (other than delivery of
clear searches) which are not
within the firm’s control?
■
Do you find yourself answering
questions about a client’s
transaction or about the terms
of documentation without
checking the file/the
documentation?
Consider the following questions:
■
■
■
Risk (self) assessment
How do we measure ourselves
(objectively)? Perhaps there is no
when you consider you already
have too much work?
■
Do you ever, without
supervision, undertake work in
specialist areas of which you
have no previous experience?
Are you willing to undertake
work with less than a full set of
instructions?
Do you find yourself agreeing
under pressure from
clients/colleagues to do
anything in relation to client
work with which you feel
uncomfortable?
Do you find it difficult to
decline further work even
47
Journal
Risk Management
Remember, this is not a ‘scientific’ way of measuring risk
awareness or your capabilities in controlling the risk of
claims and complaints.
Nor is it necessarily meaningful to compare and contrast
the answers of one person with another’s. Personal and
other factors including status in the firm/organisation;
age and experience; size of practice; areas of practice,
geographical practice location will impact on the way
individuals answer these questions.
With all these variables multiplied by the number of
individuals in a practice, it is easy to see why the
management of risk within a practice is a challenging
management issue for every practice, large or small.
Contingency planning
■
Do you sometimes not bother with file notes of
meetings and telephone conversations in order to
save yourself time?
■
Do you take the view that conducting regular
physical file reviews are a luxury for which you do
not have sufficient time?
■
Do you have any concerns about critical dates
which it is your responsibility to act upon not being
effectively diarised?
■
Do you have any concerns about those critical
dates being missed by colleagues in the event of
your unexpected absence because of the way you
have/have not diarised them?
■
Do you consider it pointless to agree terms of
engagement for most of your clients?
■
Are you unclear about your responsibilities in
terms of Money Laundering regulations?
It is therefore prudent to have a plan in place describing,
prioritising and allocating responsibility for the action to
be taken in the event of a theft, fire, flood or other such
event as a result of which records are lost, destroyed or
inaccessible and the business is materially disrupted.
The plan should include a list of contact details of those
who may be able to provide assistance according to the
type of event. This will include –
■
the police
■
the firm’s office insurers
What do your answers reveal?
■
It is not being suggested that you are necessarily
operating recklessly or negligently if you have answered
‘Yes’ to any of these questions. However, your answers
to questions of this sort are indicative of your attitude to
risk and risk control.
the Master Policy insurers (per Marsh), at least on
a precautionary basis – it may be that loss of
systems and data will result in claims
■
particularly if the firm’s accounting records have
been compromised, the Society’s Chief
Accountant.
It is often helpful to consider extremes as these
demonstrate the range of possibilities and help you to
place yourself relative to these extremes. For instance,
if you answered ‘Yes’ to every question, that indicates
that you become involved in situations which will tend
to involve additional risks for yourself and your
colleagues – risks of claims or complaints. If, on the
other hand, you answered ‘No’ to every question, then
this probably indicates that you are aware of the risks
involved in various sets of circumstances and choose to
avoid those circumstances.
You may find it interesting to repeat this self-assessment
exercise on a periodic basis in order to review how your
own attitude to risk situations may have changed over
time.
If asked to consider what event might result in the
destruction or loss of files or the material disruption of
our businesses, most of us would probably think of fire
or flood as the most likely cause. An office conflagration
or inundation can have devastating consequences for
any business but these are not the only disaster
scenarios that could have an adverse impact on a legal
practice.
48
Arrangements might be made for temporary relocation
to other premises in the event of the firm’s offices being
destroyed or severely damaged. Ideally, there will be
facilities to enable IT systems to be re-instated on a
skeleton basis, sufficient to allow the practice to continue
its business.
The information in this page is (a) intended to provide
guidance on matters of practical risk management and
not on issues of law and (b) is necessarily of a generalised
nature. It is not specific to any practice or to any
individual and should not be relied on as stating the
correct legal position. Alistair Sim is Associate Director in
the Professional Liabilities Division at Marsh UK Limited
e: Alistair.J.Sim@marsh.com
Journal
In Practice
This month, Bruce Ritchie, Director of Professional Practice at the
Society, looks at common conflict of interest scenarios
The Solicitor’s (Scotland) Practice Rules 1986
(commonly known as the Conflict of Interest Rules)
provide that a solicitor should not act for two or more
parties whose interests conflict. In relation to
conveyancing transactions the rules go further and
provide that the same firm shall not act for buyer and
seller; landlord and tenant; lender and borrower unless
certain particular circumstances apply – e.g. the parties
are related by blood, adoption or marriage or both are
established clients.The Committee are frequently asked
to consider how the rules apply to particular situations.
These have recently included:
a. Conflict between seller and purchaser’s lender
A firm sought advice in relation to commercial
securities. The Practice Guideline in 1994 (PH Book Vol
3 page F903) sets out the policy that the same firm
should not act for lender and borrower in a commercial
security unless it is regarded as de minimis. What is de
minimis may vary from bank to bank, but £100,000 has
been commonly accepted as the upper limit.
In transactions where the firm were already acting for
the seller they had also been asked to act for the
purchaser’s lender.The Committee agreed that although
the Conflict of Interest Rules are silent on this specific
relationship, there is such a significant potential for
conflict of interest that it would be inappropriate for the
same firm to act for a seller and for the lender to a
purchaser.
b. Family transactions with a substantial element
of gift
The Committee were asked to give a general view in
relation to a number of different scenarios which had in
common an element of gift either in whole or in part.
The Committee declined to express a general view and
– as with many other issues – agreed that the particular
circumstances of each transaction need to be
considered. It will be a matter of professional judgment
for the solicitor in each case as to whether there is an
actual conflict of interest and if in doubt solicitors
should exercise caution before proceeding. It may be
for example that what is being gifted is more of a
liability than an asset, or it may be that the sellers within
a family may not fully appreciate that a conveyance is for
less than full market value. If asked to act (say) for
parents and children on either side of a transaction for
less than full market value it will be necessary to see
each side on their own to ensure that they fully
appreciate the nature of the transaction and are
capable of giving proper instructions.
c. Spouses and guarantees
This has been the subject of previous articles in the
Journal – particularly in the Risk Management column.
The Professional Practice Committee is firmly of the
view that there is an actual conflict of interest between
spouses where one is being asked to guarantee a loan
to the other or where the jointly owned matrimonial
home is to be put up as security for a business loan to
one of them. The same firm should not act for both
spouses in these situations and if one of them refuses
to get separate independent advice, the firm must
advise that party in writing that signature of any
document will have legal consequences and they should
seek independent legal advice before signing it (Rule 7).
d. Commercial transactions
In relation to commercial transactions the Committee
considered correspondence between two substantial
city practices, particularly in relation to PFI or PPP
projects.An example given was where a consortium and
a bank in relation to a PPP project were both existing
clients. They had appointed one firm to act in implement
of the transaction where the funders had had separate
legal advice on the format of the loan agreement. The
Committee agreed that if the parties had had separate
advice on the formation of the loan agreement, and
were now seeking implement of it, there would only be
a conflict of interest if a dispute arose. The Committee
declined to issue guidelines on the matter and felt that
solicitors must exercise professional judgment in each
individual transaction. Both the Code of Conduct and
the Practice Rules are clear that the same firm should
not act for the parties where there is an actual conflict
of interest. If solicitors are concerned there is a
significant potential for conflict of interest it would be
sensible to decline to act.
e. Rule 7 – Issuing document to unrepresented
party for signature.
A complaint was made against a firm who had accepted
instructions from the disponee in a family transaction;
had prepared the disposition and given it to their own
client to be signed by her mother, the disponer, whom
the solicitors knew was not represented by a solicitor.
The Committee decided that the words “issued to him”
in Rule 7 mean more than just issuing the document
directly to the unrepresented party, and include using
the solicitors own client as a means of transmitting a
document to an unrepresented party for signature.
49
e: bruceritchie@lawscot.org.uk
Journal
Europe
Justice and Home Affairs
The EU is now taking an increasing interest in criminal law with projects including compensation
for the victims of crime and plans for an EU arrest warrant in the pipeline
The extent to which the EU is now functioning in a number of areas which fall under the general banner of “justice and home affairs” is fast
growing and it can come as something of a surprise to practitioners who may be used to EU involvement in fields such as employment or
competition law. One area in which the EU is taking an increasing interest is that of criminal law, and a brief glance at the Justice and Home
Affairs section of the European Commission website will show an outstanding consultation on the status of suspects and defendants in criminal
proceedings – a similar consultation on compensation for the victims of crime has recently been completed and these are just some of a raft
of proposals which the EU has brought forward dealing with the treatment of victims in the criminal justice system. Similarly, proposals have
recently been brought forward in connection with immigration, legal aid, ADR, and family law. Here are outlines of some of the
EU projects currently in the pipeline.
CRIMINAL LAW
Directive. The proposal was also recently
discussed in the European Parliament.
Compensation for the Victims
of Crime
The European Commission held a hearing in
March which brought together interested
parties to discuss the issue of an EU-wide
system for compensating crime victims. The
hearing followed the Commission’s Green Paper
issued in September 2001. It was widely agreed
that the scheme should provide a safety net for
all EU residents who become victims of crime,
as most victims are not insured and statistically
few can find redress through court action. As
Member States currently offer different levels of
compensation, the scheme could reduce the
extent to which the place of injury determines
the amount of compensation awarded.
Delegates also addressed the administrative
problems of cross-border compensation claims.
Two principal models are being considered.
Under the first, Member States pay
compensation to victims injured in their own
territory. This would be relatively simple to
administer and would encourage states to make
their territories safer.The second model adds to
this by allowing citizens to claim compensation
from their home Member States for injuries
sustained elsewhere in the EU. Delegates
discussed how the scheme could be made
accessible. It was suggested that standardised
application forms should be made available in all
police stations, printed in all the Community
languages. Delegates also considered the issue
of legal aid for claimants. The Commission is
currently analysing the responses received with
a view to bringing forward a proposal for a
50
Increased protection for suspects
and defendants in criminal
proceedings
The Commission published its Consultation
paper on Procedural safeguards for suspects
and defendants in criminal proceedings on 28
January 2002. It is proposed that a framework
be established throughout the EU, setting out
minimum standards that should apply in the
treatment of suspects and defendants in
various stages of criminal proceedings. The
objective is to promote the free movement of
people travelling throughout the EU, so that
they may expect a system that will give them
adequate protection wherever they go. It is
proposed that the most efficient way of
proceeding would be to set out minimum
standards to be met and allow reasonable time
for the Member States to ensure that their
existing procedures meet this criteria. The
Commission intends to produce an initial
Communication this month covering what
standards should be applied and when.
Consultation will then follow, resulting in a final
proposal being produced next year.
Prosecutor (EPP), an independent judicial
authority, responsible for protecting the
Community’s financial interests from fraud and
corruption. The intention is that the EPP have
jurisdiction to direct investigations throughout
the whole of Europe and therefore have use of
all national enforcement instruments (on the
basis of mutual recognition) as well as those
instruments established through the process of
European judicial co-operation. The trial itself
should then be heard and judged in the national
courts of the Member States. The Commission
is ingathering comments, and intends to present
its conclusions based on reactions received, no
later than the beginning of 2003.
Plans for EU arrest warrant
A Framework Decision for a Europe-wide
arrest warrant was launched by the
Commission last autumn. The warrant is
intended to replace what are perceived as
cumbersome extradition processes with a
surrender procedure enabling a Member State
to simply request another Member State to
transfer a suspect to its territory.The Decision
will extend to thirty two offences including
terrorism, trafficking in human beings, rape and
racism and should apply from 2004.
Green Paper adopted on
establishment of a European
Public Prosecutor
Council considers initiative on
enforcement
of foreign fines
At the end of last year, the Commission
a d o p t e d a G r e e n P a p e r
(http://europa.eu.int/comm/anti_fraud/livre_vert)
on the establishment of a European Public
The European Council of Ministers is
considering the details of the scope and
procedures for the mutual enforcement of fines
across the European Union. The Framework
Journal
Europe
Decision follows an initiative of the UK, France and
Sweden.The proposal can be passed only by unanimous
agreement and all sides agree that fines for criminal
activities should be recognised. However, the extent to
which civil penalties should be covered has proved
controversial. Ministers must decide on whether
administrative fines such as road traffic offences should
be included. Some Member States would like the
scheme to be administered centrally while others prefer
a model based on co-operation between national
authorities. The language regime is also in dispute. The
Spanish Presidency hopes that Ministers will reach
agreement at the Justice and Home Affairs Council in
mid-June.
CIVIL JUSTICE
Proposal for Community-wide legal
aid scheme
As reported in the April Journal, the Commission has
recently released a proposal for a Directive dealing
with legal aid in cross border civil cases and
establishing minimum common rules relating to legal
aid within the EU. The draft Directive was debated in
the European Parliament in May when some of the
issues discussed were the scope of the Directive to
apply in matters which could be seen as domestic
rather then cross border, and its application to non
EU citizens. The Parliament is expected to come to a
final view on the Directive later this year. However, in
order for the proposal to become law, it will require
the unanimous endorsement of the Council of
Ministers.To be covered by the Directive, the UK and
Ireland have to choose to “opt in” under the protocol
on civil law annexed to the treaties. If adopted, the
Directive must be transposed into national law by
1 January 2004.
Alternative Dispute Resolution
In parallel with its proposal on legal aid, the Commission
is conducting a consultation on the use of ADR, through
a Green Paper on alternative dispute resolution in civil
and commercial law. The deadline for comments on the
paper is 15 October 2002 and the Commission expects
to organise a public hearing on the matter early in 2003.
As with the legal aid proposals, the stated aim of the
project is increased access to justice through promotion
of dispute settlement out-of-court. The Commission
sees many advantages in dispute resolution of this kind,
particularly in the case of cross-border disputes and
notes that this topic was very much on the agenda
during recent debates concerning on electronic
commerce. The Commission also sees a role for ADR
in consumer and employment disputes.
Family law – Brussels III
The principle of mutual recognition of judicial decision
is the overall aim of ongoing work within the EU. On
3 May, the Commission published a proposal on the
recognition and enforcement of judgments in
matrimonial matters and in matters of parental
responsibility. The proposal is an amalgam of the socalled Brussels II Regulation (which came into force in
May 2000), a Commission proposal on parental
responsibility, and a French initiative on rights of
access. If successful, this proposal will repeal the
Brussels II Regulation, as its provisions are included
within the present draft, along with further provisions.
IMMIGRATION
New rules on return of illegal
immigrants
In April, the Commission issued its Green Paper on
illegal immigration. It follows the European Council
Meeting at Laeken in December and the Commission’s
subsequent Communication “on a Common Policy on
Illegal Immigration.” In the Green Paper, the Commission
seeks ways to integrate a “return scheme” into the
Community’s overall immigration and asylum policies. It
hopes to achieve this in a way that is also compatible
with international and European law, avoiding and
preventing the repatriation of anyone who might then
be subjected to inhumane treatment, torture or the
death penalty. The Commission has emphasised the
need to create common standards and common
measures across the Community on, inter alia,
repatriation, expulsion and voluntary return. It also seeks
to improve co-operation between Member States’
services and asks whether a future financial instrument
should be considered to implement this. The discussion
extends to international readmission agreements.
Currently, these are agreed bilaterally between individual
Member States and non-EU countries but it is hoped
that a discussion will follow on the mechanisms which
will allow EU-wide agreements to be reached. The
Commission will consider responses to the Green Paper
until 31 July 2002.
51
information:
If you would like further
information or if you would
like to subscribe to any of the
services provided by the
Brussels Office (Brussels
Agenda, EU Documentation
or Enquiry Service) or
Guidance Notes which are
all free of charge,
please contact us at:
The Law Societies’ Joint Brussels
Office,
142-144 Avenue de Tervuren,
B-1150 Brussels, Belgium,
or DX 1065 BDE Belgium
Tel: 00-32-2-743 85 85
Fax: 00-32-2-743 85 86
and by e-mail:
brussels@lawsociety.org.uk
Information is also available
from the International
Relations section of the
Society.
Tel: 0131 476 8132
Fax: 0131 225 4243
e: international@lawscot.org.uk
Journal
Plain Speaking
Ellis Simpson begins a new series on an art that
all too many lawyers fail to exhibit in
their dealings with clients
“…clients continually complain about our inability to communicate effectively.”
Fiona Westwood on page 35 of the December 2001 issue of the Journal of the Law Society of Scotland
“All generalisations are dangerous; even this one.”
Alexandre Dumas
Every lawyer needs to be a good communicator. Every
one of us needs to be able to clearly compose and
deliver written messages to colleagues and clients.
Unfortunately, we’re not as good at that job as we think
we are. Why?
One reason may be to do with the way we were (and
are?) introduced to the daily task of writing letters. How
many trainees learned to write by individual guidance
and training from their employer? And how many were,
instead, encouraged or forced to ferret their way
through fusty files to almost blindly copy letters in the
hope they would do the job? The flaws in this last
approach were part of life’s rich tapestry and a learning
experience all rolled into one. I well remember the
barbed reply from the lawyer acting for a house seller
pointing out there would not be a property factor for a
detached bungalow in Bearsden. Oops!
But even if the young lawyer picked up the right legal
approach, he also picked up and adopted language he
would never have dreamed of using before. It was not
how he would naturally write. But this language was the
language of lawyers and – so the thinking went - you
had to use it if you wanted to be taken seriously.
Another reason is that, like most professions, we use
technical words and expressions as a type of shorthand.
This may be acceptable when we are writing to one
another. But what happens when we write to clients; do
we make enough of an effort to clean up our act and
communicate in plain language? And how often do we
know that our jargon filled letter to the other side is (a)
bound to be shown to the clients on the other side,
anyway and (b) best shown to our own clients, too?
Shouldn’t we be making more of an effort – no matter
to whom we are writing – to use plain language? Of
course we should. The use of plain language is a
challenge that we should all take up sooner rather than
later. As Bryan Garner says: “If we want the respect of
the public, we must learn to communicate simply and
directly.”
In the coming issues, I will use this column to offer some
practical suggestions and advice about using plain
language as well as giving useful sources for extra help.
In this small way, hopefully you will be encouraged to
take up the challenge of plain language reform.
More Reading:
A Dictionary of Modern Legal Usage
(Second Edition) Bryan Garner, Oxford University Press 1995
ISBN 0-19-507769-5
A wonderful, comprehensive and entertaining book that does heaps more than it says on the cover. Each entry is
a small, carefully crafted essay backed up with a real life example or two.The ‘Plain Language’ entry is masterful. It
is available in paperback through Amazon for about £16.
Clarity
e: ellis@golds.co.uk
This is not a book, it’s a movement: the worldwide lawyers’ group campaigning for plain legal language. If the topic
interests you, membership is a must.The movement publishes a journal and newsletter and trains people in plain
language. It has a rather basic but informative web site at http://www.adler.demon.co.uk/clarity.htm.The site has a
good book list and useful articles.The group’s own publications are useful because the international coverage
shows you what is happening in other countries. Scotland is not leading by example.
52
Journal
Review
I will be very happy to receive reviews of books which readers have
enjoyed and feel would be of interest to the profession. I would also
welcome suggestions on areas of the law which we should tackle.
Alistair Bonnington
The Law School,The Stair Building, University of Glasgow G12 8QQ
t: 0141 338 2352 f: 0141 338 2973 e: alistair.bonnington@bbc.co.uk
Scottish Planning Law and Procedure
by J Rowan Robinson, E Young, M Purdue
In the Preface to this work, Jeremy Rowan
Robinson performs the useful and interesting
service of reminding readers of
its publishing history. The book
has its origins in Eric Young’s The
Law of Planning in Scotland of
1978, subsequently expanded
by Eric Young and Jeremy
Rowan Robinson in 1985 to
become Scottish Planning Law
and Procedure. Then in 1989
that text was exported, with
substantial
rewriting
and
revision by Michael Purdue, to
England as Planning Law and
Procedure. And now this new edition of Scottish
Planning Law and Procedure published under the
auspices of the Scottish Universities Law
Institute, is a sort of repatriation with Professor
Purdue retained as one of the authors.
treatment and pleasingly written. And, despite
the contrary efforts of legislatures and courts, it is
as up to date as a bound
version of any text in a fastmoving field could be.
Mercifully, County Properties
and Alconbury went the way
they did and an Addendum
(which also includes notes on
one or two other matters) is
able to record the outcomes
without the need also to
anticipate revolutionary turmoil
in planning decision-making. Of
course, nothing stays quite still
and the section of the book on personal bar (aka
estoppel), which is not, in any event, completely
satisfactory because of the lack of Scottish cases,
should now be read subject to Reprotech (R v
East Sussex CC, ex parte Reprotech (Pebsham)
Ltd, House of Lords, 28 February 2002) and the
need, apparently, for public law to “stand upon its
own two feet”. And the human rights cases move
on apace.
E Farquharson-Black
W Green
Price £165
ISBN 0414 014308
This constant motion has probably made its own
contribution to the extraordinarily high quality of
the new edition. It is comprehensive in its scope
(although the Preface acknowledges the demise
of coverage of the topic of compensation for
adverse planning decisions), detailed in its
It is reconfirmed as the standard text on the
subject. And a remarkable subject it is. Few
involved in the earliest stages of UK planning
policy can have imagined how sophisticated and
enduring their project would be.
I hope my praise of this work will be accepted at
face value and that no one will attribute it to the
acknowledgment in the Preface of my having
played a small role in the preparation of the 1985
edition. Another case decided since the book
went to press has been Porter v Magill [2002] 1
All ER 465 which has further interest of a crossborder kind in that Lord Hope finally merged the
“bias” tests of the two jurisdictions. He said that,
in both, the “question is whether the fair-minded
and informed observer, having considered the
facts, would conclude that there was a real
possibility that the tribunal was biased” (p.507).
If there were any suspicion that this reviewer’s
impartiality was in danger of falling foul of the
new test he would move swiftly to save his
reputation and rectify the balance of the review
by identifying some typographical errors, for
example, on pp. 3, 4, 6. He hopes, however, that
his praise can stand unqualified.
Chris Himsworth.
53
Journal
Notifications
Applications
for admission April/May 2002
AITKEN, James McGill,
LLB(HONS), DIPLP, LLM
BARKER, Keith Ernest,
BA(HONS), LLB, DIPLP
DOW, Andrea Mary Louise,
BA(HONS), LLB, DIPLP
HILL, Alison Elizabeth,
LLB(HONS), DIPLP
KELLY, Martin Francis,
LLB(HONS), DIPLP
MacGREGOR, Neil Howard
Scott, LLB, DIPLP
MSC, LLB, DIPLP
McLAREN, Kate Elisabeth Martell,
LLB(HONS), DIPLP
O’BRIEN, Sarah Jayne Burns,
BA, LLB
McNALLY, Suzanne,
MA(HONS)
REILLY, Joanne,
LLB(HONS), DIPLP
MORTIMER, Joanna Ruth,
LLB(HONS), DIPLP
SPOTTISWOODE, Caroline
Emma, LLB(HONS), DIPLP
MILLER, Celia Margaret Chesters,
BA(HONS)
STUART, Michael Albert,
BA, LLB, DIPLP
MURPHY, Mark Gary,
BSC(HONS), CENG, MICHEME,
SWAN, Stuart,
LLB(HONS), DIPLP
Entrance Certificates
issued during April/May 2002
GROVES, Fiona Marion,
LLB(HONS) DIPLP
LINEHAN, Jennifer Margaret,
BA (HONS) LLB DIPLP
MACAULAY, Mhairi Daniella,
LLB (HONS) DIPLP
Examinations
timetable for the next diet of examinations – September 2002
* PLEASE NOTE THERE ARE NO EXAMINATIONS HELD ON THURSDAY. EXAMS IN TAXATION
AND EC LAW WILL BE HELD ON MONDAY 9 SEPTEMBER 2002 *
FRIDAY 6 SEPTEMBER 2002
MONDAY 2 SEPTEMBER 2002
Public Law and the Legal System
0900 - 1200
Conveyancing
1330 - 1630
TUESDAY 3 SEPTEMBER 2002
Scots Private Law
Accounting (if required)
0900 - 1200
1330 - 1630
0900 - 1200
1330 - 1630
WEDNESDAY 4 SEPTEMBER 2002
Evidence
1000 - 1200
Procedure (if required)
1000 - 1200
Scots Criminal Law
1330 - 1630
54
Scots Commercial Law
1000 - 1200
1330 - 1530
Professional Responsibility (if required)
0900 - 1215
MONDAY 9 SEPTEMBER 2002
Taxation
0900 - 1200
European Community Law
1330 - 1630
The Oral Examinations will be held on Wednesday 25
September. Candidates will NOT be required to attend
Oral Examinations unless they are notified that they must do so.
Enrolment forms may be obtained from Treena Jobson,
Senior Administrator (Legal Education), 26 Drumsheugh
Gardens, Edinburgh EH3 7YR, and these should be lodged
no later than Friday 9 August. The fee for a first attempt at
each examination is £40.00 and for each subsequent attempt,
£60.00.

of the law society of scotland

Transcription

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