We solicitors can be a load of old cobblers
The profession is very bad at looking after its own, says Andrew Stevenson
The year 2025 will be regarded as an annus horribilis for the legal profession in Scotland. Just as the cobbler’s own children have the worst shoes, last year Scottish lawyers proved themselves neglectful or maybe too apathetic in maintaining for themselves the basic protections that are seen as reasonable in proceedings brought against our own clients.
The Scottish Solicitors’ Discipline Tribunal is a quasi-criminal forum where a fiscal prosecutes and where solicitors face being struck off or fined if found guilty. Such is a place where careers are ruined and livelihoods destroyed. Although the prosecuted were never afforded the protections of the need for corroboration or the prohibition on hearsay, there was at least the requirement of proof beyond reasonable doubt.
Not only was that the only appropriate standard of proof in a prosecution, the eminent bench in the 2005 Privy Council case Campbell v Hamlet had “no doubt” the criminal standard is appropriate where there are allegations of misconduct against professional people.
Only six years ago, the Tribunal decided, after a consultation, to retain the standard of beyond reasonable doubt. However, in 2025 it decided to lower the standard to one of the balance of probabilities. There has been no relevant change of circumstances since 2019. The lowering of the standard is entirely unjustified. The criminal standard gave fair protection to solicitors facing mischievous or spurious allegations.
Solicitors do not have to face the Discipline Tribunal to have been prejudiced by developments in 2025. Take a complaint of having provided an inadequate professional service. This is the realm of the Scottish Legal Complaints Commission, with its preponderance of laypersons judging lawyers.
The powers of this body have only increased since its creation in 2007. However, it was always possible to appeal to the Inner House of the Court of Session on limited grounds such as that the Commission had erred in law. Clearly, Parliament did not permit a less expensive appeal route in order to deter appeals.
It seems clear that in many quarters, this restriction on access to justice was felt to be unsatisfactory. SLAS proposed that a lower court hear appeals. However, just as it has been suggested that the most emphatic solution for a headache is decapitation, the Regulation of Legal Services (Scotland) Act 2025 removes any appeal to the courts at all, at any level. The mechanism of going to the Court of Session was costly but at least it ensured that there was some judicial oversight of the Commission’s actions and decisions, with accountability. Now, the 2025 Act replaces this vital right of appeal with recourse to a Review Committee of the Commission itself, whose decision will be final. The homework of the Determination Committees will be marked by a review body of exactly the same organisation, which is to have the last say.
Both SLAS and the Law Society conducted recent surveys. It was found that burnout and problems with mental health are endemic in the profession, with trainees and women under 35 most at risk. It was also clear there is a widespread lack of confidence in the regulatory system under which we are compelled to operate, one which gets increasingly more onerous and imbalanced. One wonders how our profession, so adept and diligent at protecting the rights of others, has been so remiss at allowing itself to be left so vulnerable and exposed in this new regime of prosecution and complaints.
Andrew Stevenson is Secretary, Scottish Law Agents Society