OF THE LAW SOCIETY OF SCOTLAND - The Journal Online

VOLUME 46 NO 12 DECEMBER 2001
THE
JOURNAL
OF THE LAW SOCIETY OF SCOTLAND
PRIVATE CLIENT WORK
REASONS FOR OPTIMISM
GLASGOW’S DRUG COURT
REDUCING REOFFENDING
MEDIA RELATIONS
HOW TO BE EFFECTIVE

From the
editor
LAST
month’s announcement that
McGrigor Donald and Maclay
Murray & Spens are merging their private client
departments inevitably led to conjecture about
the future of the private client departments of
Scotland’s largest firms.
It seemed to be further indication of a trend,
particularly evident in Glasgow and Edinburgh, of
larger firms shedding private client work in order to
compete more vigorously for top end commercial
work.
Indeed, Kirk Murdoch, managing partner at
McGrigor Donald, said: “For some time now our
growth has been concentrated on our corporate
and commercial practice and, while we have valued
our private client work, we did not see it as an area
for investment and expansion.”
If this paints a gloomy picture for private client
practitioners, then Frank Fletcher of Bird Semple
Private Client Solicitors presents a positive antidote.
He suggests a greying, wealthier population offers
private client firms plenty of potential business.
“For those with the imagination and courage to
grasp the emerging opportunities and the
commitment to developing the new expert private
client firms who will serve the top end work in
future, there will be significant rewards. A good living
will be only one of these.”
Also in this month’s Journal, Sheriff Hugh Matthews
offers his perspective on the early workings of the
Glasgow Drug Court. He counters some of the
media myths – such as the suggestion that sheriffs
and offenders will be on first name terms – and
provides an insight into the global perspective on
tackling the problem of drug related offending.
Have a happy Christmas
and a prosperous New Year.
e:
journal@connectcommunications.co.uk
Front cover image: Brian McDonough
THE
JOURNAL
OF THE LAW SOCIETY OF SCOTLAND
contents
Features
19 Future of Private Client Work
No reason for despondency
argues Frank Fletcher
22 Cost of Time
Message remains the same.
Better gearing means better profits
26 Glasgow’s Drug Court
Sheriff Hugh Matthews on the philosophy
behind treating offenders
30 Media Relations
Whether representing clients or promoting
their firm solicitors need to be media aware
34 Management
The essentials to remember when
pitching for business
Regulars
5 President’s Report
7 News
15 Letters
16 People
25 Web Reviews
DECEMBER 2001 VOLUME 46 NO 12
19 Frank Fletcher
private client work
30 Peter Lockhard
media relations
37 Information Technology
40 Criminal Court
42 Risk Management
44 Europe
46 Books
Members of the Periodical Publishers Association

President’s
REPORT
Journal
Viewpoint
Ensuring the highest quality of legal aid is a common purpose of the Society, SLAB and Executive,
writes Martin McAllister
I have written before about concerns I have about
access to justice.
Progress in Civil Legal Aid
Access to justice is a prime concern in Civil Legal
Aid. The Society has been working hard to
improve a situation where fees for Civil legallyaided
work have not been increased for ten years.
Such a situation can only lead to potential and real
problems of access to justice for people in
Scotland.
A Civil Legal Aid Fees Working Party headed by
Michael Scanlan reported its findings over a year
ago and presented them to the Scottish
Executive. The Report showed the erosion of the
real value of fees and gave a detailed analysis of
comparative Legal Aid fees in England and Wales.
TheTripartite Group, which was set up by the
Society, the Scottish Executive and SLAB, to
discuss and progress Legal Aid issues, considered
the report and the Executive indicated that
without a fresh approach to Civil Legal Aid
procedures and issues, no money would be
available. The Society was faced with a potentially
worsening situation where any improvements in
the provision of Legal Aid services in Scotland
seemed unlikely in the near
future.
SLAB then indicated it
would consider
supporting proposals
for an increase in fees
if concurrent changes
to procedures were
adopted. The
Martin McAllister
Executive indicated that if proposals were
presented to it which were acceptable to both
the Society and SLAB then it would give
consideration to them. Ian Smart (Convener),
David Lyons and Oliver Adair (Vice-Conveners)
and the members of the Society’s Legal Aid
Committee have worked on this initiative for six
months and the resulting draft proposals will be
considered at the December Council meeting.
The committee’s work has involved considerable
detail and short timescales which have not
allowed for exacting consultation but have put
heavy demands on committee members and I
commend them for their commitment. The
opportunities for discussion and consultation with
the profession have been taken whenever
possible. I have been able to advise solicitors
attending Faculty visits of the general thrust of the
work being undertaken by the Committee and a
significant part of a meeting of Deans of Faculties
in September was devoted to discussing Legal Aid
matters. Ian Smart gave a full report on the work
in progress, which your Dean will no doubt have
reported back to you.
I hope that the Society’s pro-active approach
leads to several improvements and welcome the
fact that SLAB and the Society have worked
together on this very important issue. We have,
after all, a common purpose – ensuring that the
highest possible quality of Legal Aid provision for
clients not only survives but flourishes in the
coming year.
Personal Injuries and Summary Cause Actions
Access to justice for clients must not only be
available, it must be in the right forum. In the last
few weeks Personal Injuries and Summary Cause
actions have come to the fore. In November the
Scottish Parliament’s Justice 2 Committee
considered the Executive’s proposals to change
the privative jurisdiction of the Court of Session.
The Society supports the proposal that personal
injury actions for under £5,000 should be raised
in the Sheriff Court. It comes as a surprise to
many who do not practise in the Courts that a
pursuer can take an action for £3,000 or
£4,000 to the Supreme Court.
The Executive’s proposals went beyond the
level of action raised to include the extension
of summary cause procedure for actions up to
£5,000. When these proposals were first made a
after consultation in 1998, the Society was very
concerned that summary cause fees would be
inadequate for some actions and lead to
restricted access to justice. The then Deputy
Justice Minister gave an undertaking to the
Committee in November that parties should be
able to recover the costs of an action. The
Executive has withdrawn the proposals for more
consultation. If the Summary Cause Rules are
changed and fees reflect the true cost of an action
then it seems reasonable that damages actions
under £5,000 should be dealt with under
Summary Cause procedure.
All change
I wish Lord President Cullen and Lord Justice
Clerk Gill every success in their new roles. I would
also like to congratulate Elish Angiolini, the new
Solicitor General, on her appointment. She is the
first solicitor and former procurator fiscal to be
appointed to the post and is a credit to the
solicitors’ profession.
The announcement that Lord Bonomy is heading
an investigation into the workings of the High Court
is most welcome as is the current atmosphere of
change. I hope that a root and branch review of the
civil justice system long advocated by the Society
proceeds before public confidence in the whole
Scottish Court system is lost.
Encouraging debate
The Society’s schools debating competition,
renamed the Donald Dewar Debating
Competition last year, is proving an even greater
success than the past three tournaments. Open to
every secondary school in Scotland, there have
been more entrants than ever before and the
second round is already under way.The Debating
Competition is a fun thing for schools to be
involved in but it is also an opportunity for the
Society, the law and issues such as Access to
Justice to be recognised and debated amongst
school pupils. Other countries have citizens
classes in schools and the Society is considering
various other initiatives which would increase
young people’s awareness of the law and legal
processes.
I would like to wish readers an enjoyable break
over the festive period and a happy and blessed
Christmas.

In-House Group
‘a real force’
WITH
From two years ago when the
event attracted just four delegates,
this year’s event saw more than 80
members in attendance at the
Stirling Highland Hotel.
Chairman Janet Hood said: “One
delegate described it as the best
conference she had ever attended
and I can’t disagree. I had a super
time, meeting new and old friends
and I learned a great deal.
“The speakers, drawn from all
different disciplines all over the UK
and Europe,were stunning, and it
was a great opportunity to meet
solicitors from differing backgrounds
and make sound and
useful contacts for the future. The
huge success of the event for all
players clearly illustrates the
benefits of effective networking
within the profession both within
and furth of Scotland.
“The In-House Lawyers Group is a
real force in the profession and
there is growing recognition of the
PUBLISHERS
The Law Society of Scotland
26 Drumsheugh Gardens
Edinburgh EH3 7YR
Telephone: 0131 226 7411
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record numbers of delegates and an acclaimed symposium programme, the In-House
Lawyers Group AGM was once again a striking success.
professionalism, dedication and
important role in-house lawyers
play, by forging strong links with
practitioners in the private sector
we are moving towards far greater
cohesion in the profession as a
whole. At the end of the day – to
echo the sentiments of David
Preston’s fantastically well received
speech- it has to be remembered
that we are all solicitors under the
skin .By working together to
improve services to our clients and
by working more closely with each
other we can only enhance the
public’s perception of solicitors’
vital role in modern day society.
“Special thanks also have to be
given to the recruitment firm Tully
International for their generous
sponsorship of the event.”
The In-House Group now
comprises 1910 members, 22.7% of
the profession. Of those, 63.5 % are
employed in the public sector. Of
private sector members, financial
President
Martin McAllister
Vice-President
David Preston
Secretary
Douglas Mill
Editor and Editorial Office
David G. Cameron
Connect Communications,
Studio 2001,
Mile End, Paisley
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services is still the most heavily
represented, followed by solicitors
specialising in the production of
energy.
Advance Notice
The Group is going from strength
to strength and the In House
Lawyers Group Committee
thought that members of the group
might enjoy some education with a
celebration. So the Committee has
organised an afternoon seminar on
contract law followed by a black tie
dinner with a difference at Dynamic
Earth on Friday 15 March 2002.
The idea is to meet up with other
members of the group and have a
blast. Dynamic Earth was chosen as
the ideal venue for the dynamic,
forward-looking group. Lord
McCluskey and the Very Rev. Dr.
James Simpson have agreed to star
as speakers. Come on your own,
with a partner or with a group of
members or friends and colleagues.
The Dinner:
Dynamic Earth – 7.00pm for
Deputy Editor
Roger Mackenzie
Email: roger@connectcommunications.co.uk
Review Editor
Alistair Bonnington
Email: alistair.bonnington@bbc.co.uk
Design Editor
Gillian Park
Email: gillian@connectcommunications.co.uk
Chief Sub-Editor
Eric Wishart
Journal
News inside
8 Will Aid
9 Careers Events
10 Conveyancing Matters
10 Summary Cause Fees
11 Aberdeen Lectures
12 Charity News
12 Justice 1 Committee
7.30pm. Black Tie.
Champagne Reception in the Polar
Zone
Dinner in the Stratosphere
(3 courses with wine).
Disco in the Biosphere till 1am.
Speakers:
LORD McCLUSKEY – one of
Scotland’s best known judges, he
retired last year and is just as busy
as before his retirement concentrating
on the law, the media
and public speaking.
THE REV. DR. JAMES SIMPSON -
formerly of Dornoch Cathedral,
this former Moderator is known
for his sense of humour and joke
books as well
as his faith and wisdom.
The Seminar:
Dynamic Earth – 1.30pm till
4.45pm
Refreshments: Sandwiches and
coffee on registration
SUBJECT: Contract law
VENUE: The Biosphere
Look out for the registration form
which will be circulated shortly.
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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, 2001 ISSN: 0458-8711

Journal
News
PARTICIPANTS in a joint
conference organised by the Faculty
of Advocates and the In-House
Lawyers Group, entitled The 21st
Century Bar - Current Hot Issues,
are pictured.
The Conference held last month at
the Mackenzie Building in Edinburgh
included talks by leading members
of the Bar including Brian Napier,
Patrick Hodge, James Wolffe,
Stephen Woolman, John Sturrock
and Gerry Moynihan on topics such
as employment law, commercial law
reform, e-commerce, commercial
agreements, the work and training of
the Advocate and a review of the
Human Rights Act.
John Sturrock said: “The conference
was a great success. We had some
marvellous feedback from the
in-house lawyers. They clearly
enjoyed their day and gained a
considerable amount from hearing
Will Aid
Society welcomes report on
community legal service
THE
SCOTTISH solicitors took part in Will Aid
2000 by offering their will-making services for
free, in exchange for a voluntary donation.They
raised nearly £116,000 in donations and
millions in potential charitable legacies to
ActionAid, British Red Cross, Christian Aid,
Save the Children UK, Sight Savers
International, SCIAF and Trocaire, all charities
dedicated to helping the world’s poorest adults
and children.
Society has welcomed the report of the Working Group on community legal service
which was published last month.
President Martin McAllister said: tance of developing joined-up, innovative methods of delivery
“The Society welcomes the research user-friendly and quality-assured of services
into a community legal service. We
have been involved in all stages of
the discussions.
“Scottish solicitors already provide a
comprehensive legal service in the
community and I hope the research
is something that the Scottish
Executive can use in its desire to
improve access to justice.”
network of legal information, advice
and help across Scotland to remedy
what it identified as significant shortcomings
in the provision of legal
advice and information in Scotland.
Key recommendations for immediate
action include:
● A project to map supply of
existing advice provision in
● A detailed audit of existing
quality standards and assurance
schemes in use in Scotland by
the advice sector
Minister for Justice Jim Wallace said:
“This report is the first stage in a
longer process. I am grateful to the
Working Group for tackling such a
complex set of issues, identifying
The Group concluded there is a Scotland against demand for problems which will have to be
need to improve access to justice. services in order to identify gaps addressed, and for sketching out
The Report highlighted the impor- ● Research on the use of some possible next steps.”
about current topics of interest,
together with how the Faculty can
help to provide them with excellent
services. Those who attended
gained a clear impression of a
modern Bar which is keen to reach
out to solicitors in Scotland in a
flexible way. We, in the Faculty,
The 2000 campaign raised a total of £400,000
and since its launch in 1988 Will Aid has raised
more than £3.5 million pounds.
MARTIN McALLISTER, President of the Law
Society of Scotland, said:
“Will Aid is an excellent way for solicitors to raise
money which is vital for improving the lives of
thousands of people in Third World countries.
The total amount raised during Will Aid 2000 is
staggering and goes to show the strength of
support both from the profession and their
clients.The idea for Will Aid came from a Scottish
solicitor, Graeme Pagan, and the profession in
learned about the work and aspirations
of in-house lawyers. Above all,
there was a real sense of friendship
and goodwill. “
Scotland has been a great supporter from the
beginning.”
The next Will Aid campaign is in November
2002 and we have ambitious plans to have a
solicitor available in every high street and to
support their efforts with local publicity to alert
the public to their participation in this worthwhile
scheme.
If you want to welcome new clients into your practice
and increase your good reputation, we certainly need
your help.To find out how you and your practice can
make a real difference, please call Will Aid on 01460
271178 or 0870 6060239.

National Football Law & Finance Conference
SOME of the biggest names in
Scottish football, sports law and
finance took part in The National
Football Law & Finance
Conference 2001, which was
organised by Harper Macleod and
the Bank of Scotland.
Representatives from the SPL, SPFA,
PricewaterhouseCoopers, Harper
Macleod, Bank of Scotland and
Partick Thistle were among the
line-up of speakers examining the
challenges facing Scottish football
and what the future holds.
They addressed a range of topics
including the role banks play in foot-
Authors Wanted
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:
Carole Dalgleish, Commissioning
Editor (Scotland), Butterworths,
4 Hill Street, Edinburgh
EH2 3JZ or DX ED 211
or
e-mail Carole at
caroledalgleish@butterworths.co.uk
ball finance, the impact of
Premiership millionaires on the
Scottish game and how new transfer
regulations can be used to a club’s
advantage.
Up to 50 delegates from some of
Scotland’s largest financial, sporting
and investment institutions attended
the half-day event at Scotland’s
national stadium.
Stephen Miller, partner of Harper
Macleod and organiser of the event,
said: “The face of Scottish football is
changing rapidly and Harper
Macleod is delighted to play an
important role at this exciting time.”
Careers Events
Speakers included Tony Higgins, of
the SPFA, who talked about the
impact on Scotland of the
Premiership Millionaires’ Club. Rod
McKenzie, partner of Harper
Macleod, looked at how clubs can
use new transfer regulations to their
advantage.
SPL’s Iain Blair examined new transfer
regulations and the approach
FIFA has taken. Stewart Thomson,
Director of Marketing at the SPL,
discussed the role of marketing and
sponsorship in the world of football.
It is hoped that the Conference will
now become an annual event.
THE Society has organised several successful careers events recently in
partnership with Departments of Education and careers advisers around
Scotland. The events have been very well received. Pupils seemed to find
them very informative and worthwhile and were keen to ask questions and
to chat to the contributors.
More events are being planned and it is hoped that we will visit most areas
of Scotland.
Jan McAlister, of the Society’s Legal Education Department, is organising the
events, working with local councils and schools. She said: “It is important that
talented and enthusiastic young people are encouraged to enter the legal
profession. We must make them aware at an early stage of the wide variety
of interesting career opportunities which are available within the law. The
support we have received from members of the profession has been
outstanding. Practitioners from private practice, in-house departments, the
Procurator Fiscal Service, the Scottish Executive, trainees, the Faculty of
Advocates have readily participated and shared their experiences with the
students.”
We are aware that solicitors are sometimes invited to participate in local
careers events. What we don’t know is how many solicitors do take part in
these events and what the level of interest is.
If you are going to take part in a careers event we can provide you with
careers leaflets and information on routes to qualification and on the new
training regime.
Please get in touch with the Legal Education Department
on 0131 476 8126/8155 or by email at legaleduc@lawscot.org.uk
Journal
News
Personal
Injury
Lawyers
PEOPIL is the “Pan-European
Organisation of Personal Injury
Lawyers” and provides an
invaluable focus group for
discussion of shared personal
injury concerns. It has, for
example, specialist groups,
amongst others, for road traffic
accident and medical
negligence matters and has
substantial numbers of
members in the various EU
and non-EU European
countries.A recent conference
on the medico-legal
complications of “whiplash”
type injuries took place in
Berlin, conducted in excellent
England (though for those
wishing to exercise their
foreign language skills in
friendly inter-professional and
social conversation there are
plenty of opportunities to try
out one’s French, German,
Spanish and Italian!). Scottish
solicitors who are members of
PEOPIL include its Scottish
representative on the
organisation’s executive,
Michael Robson of Robsons
WS, Ratho and Angus Logan,
Thompsons, Edinburgh and
Glasgow. PEOPIL can be
contacted at www.peopil.com
(e-mail; admin@peopil.com) or
at PEOPIL, 130 Loyd Road,
Northampton, NN1 5JA,
England,Tel. 01604 628213,
Fax: 01604 628220.

Journal
News
Obituaries
RONALD FRASER DEAN,
(retired solicitor), Edinburgh
On 21st September 2001,
Ronald Fraser Dean, formerly
partner of Davidson & Garden,
Advocates, Aberdeen.
AGE: 93 ADMITTED: 1934
COLIN NEALE McDONALD
Cumnock
On 25th October 2001, Colin
Neale McDonald, partner of
R D Hunter & Company,
Cumnock.
AGE: 48 ADMITTED: 1980
HORATIO PATRICK
KILMURRY, (retired solicitor),
Ayr
On 26th October 2001,
Horatio Patrick Kilmurry,
formerly employed by
Strathclyde Regional Council,
Glasgow
AGE: 84 ADMITTED: 1946
CAMPBELL WHITE, Glasgow
On 27th October 2001,
Campbell White, partner of
Wright Johnston & Mackenzie,
Glasgow.
AGE: 66 ADMITTED: 1956
DENNIS MENZIES, (retired
solicitor), Bournemouth
On 11th November 2001,
Dennis Menzies Dawson,
Bournemouth.
AGE: 74 ADMITTED: 1968
Conveyancing Committee
THE following question was posed to the Conveyancing Committee at a recent roadshow
In the settlement of conveyancing transactions, should
the practice be discouraged whereby the seller’s
solicitor only sends the Disposition and other titles to
the purchaser’s solicitor on or after the day of
settlement, whereby the purchaser’s solicitor can only
be sure that a validly executed Disposition has been
placed in his hands after his settlement cheque has
been encashed, by which point he has lost control of
his clients and/or his clients’ lender’s money? Is the
former practice of exchanging cheque and Disposition
and titles on the day of settlement itself not safer, and
better risk management?
The Committee agrees. Although the mechanics of
settlement are something which ought to be the matter
Diligence against earnings
of agreement between the solicitors, the Committee
feels that, where postal settlement is envisaged, the
preferable course of action, wherever possible, is that
the seller’s Solicitor should send the executed deed and
deliverable title deeds contemporaneously with the
purchaser’s solicitor sending the settlement cheque, each
to be held by the receiving party as undelivered pending
performance by the other side, to be confirmed by an
exchange of communications (telephone, fax or e-mail)
on the settlement date itself. The Committee would
encourage all practitioners to adopt this practice.
The Conveyancing Committee are happy to answer questions of
a general nature. People should contact Linsey Lewin, Secretary
to the Committee, linseylewin@lawscot.org.uk
Regulations making variations to the Tables of Deductions from Earnings detailed in Schedule 2 of the
Debtors (Scotland) Act 1987 came into force on December 3.
The Regulations substitute new Tables for those in Schedule 2 to the Act which set out the deductions
made from a person’s pay when that pay is subject to an earnings arrestment.The Regulations also vary
the daily amount of net earnings below which no deduction can be made, by employers,
from £9 to £10 as set out in Section 52(2)(b) and 63(4)(b).
Keeper’s Policy on removal of qualified
Matrimonial Homes Notes from Title Sheets
IN terms of Rule 5(j) of the Land
Registration (Scotland) Rules 1980,
the Keeper is required to insert a
Statement on the Title Sheet as to
the existence of any Occupancy
rights under the Matrimonial Homes
(Scotland) Act 1981, as amended.
This policy is applied to any
property where rights could arise
under the aforementioned legislation.
Where the appropriate
evidence is received, a note is
inserted to the effect that no occupancy
rights subsist over the interest
in land. In the absence of such
evidence, a qualified note is entered
on the Title Sheet disclosing that
occupancy rights under the 1985
Act may exist and identifying the
previous owner in respect of whom
no or insufficient evidence has been
received.
In order to have a qualified note
removed, the Keeper requires to
have the appropriate evidence
submitted by way of a separate
application - the type of evidence
required is covered in para. 6.31 of
the Registration of Title Practice
Book (2nd Ed.). To date there has
been some confusion as to which
particular application form requires
to be submitted when a Matrimonial
Homes note is to be amended with
Summary Cause Rules and Fees
MEMBERS of the Society’s Remuneration
Committee will meet with the Lord President’s
Advisory Committee at a meeting on
December 17th, (after the December Journal
went to print) to put forward their detailed
submission for a revamped Table of Fees in
Summary Causes.
The Society has welcomed the Sheriff Court
Rules Council’s proposals for new rules. Detailed
written pleadings will be abolished for cases
which will be Summary Causes when new limits
come in; there will be no preliminary
plea/debate procedure; no adjustment and
record costs; and none of the traditional amendment
and reprinting costs.The new rules would
bring in what would be a new era for moderate
either a Form 2 or a Form 5 being
used. For the avoidance of doubt the
Keeper wishes to make it known
that a Form 2 is the appropriate
form to use. Accordingly, to achieve
consistency, with effect from 1
January 2002, the Keeper will
require a Form 2 to be submitted
along with any application for
removal of a qualified note in
respect of Matrimonial Homes
Occupancy Rights. Applications
received prior to this date, accompanied
by either application form,
will be accepted.
value litigation. They owe very little to the
existing summary cause framework and much
more to modern ideas of disclosure and settlement,
the Society believes the fee structure
should be altered accordingly and the submission
to the Lord President is in these terms.
Further details will be published in January’s
Journal.

University of Aberdeen Lectures
INTERNATIONAL law firm CMS
Cameron McKenna recently
sponsored the first in the series
CMS Cameron McKenna Lectures
at the University of Aberdeen.
The lecture was given on
2 November 2001 by Lord Rodger
of Earlsferry with Lord Hope of
Craighead in the chair. Over a
period of five years each lecture in
this annual series will be given by a
distinguished lawyer and dedicated
to a person associated with law at
the University of Aberdeen who has
made a significant contribution as a
jurist or practitioner.
Lord Rodger’s lecture was dedicated
to David Daube who was
Professor of Jurisprudence at
Aberdeen in the 1950s before his
appointment as Regius Professor of
Civil Law at Oxford - where
Glasgow graduate Alan Rodger
became his pupil in the 1960s.
Daube was one of the most
outstanding scholars of Roman law
of the 20th century. The lecture,
entitled ‘Law for all times: the work
and contribution of David Daube’
was given under the auspices of the
Centre for the Study of the Civil
Law Tradition within the University
of Aberdeen’s, School of Law.
Society of Solicitors of Clackmannanshire
At the AGM of the Society Office Bearers were elected as follows
DEAN Stephen Rule
COUNCIL Gordon Wilson & John N J Andrew
TREASURER AND SECRETARY William Brooks Jarvis LIBRARIAN Gordon McKeand
crossword
Journal
News
Criminal Law
Symposium
The Faculty of Solicitors of
Dunbartonshire are holding a
criminal law symposium at the
Beardmore Conference Hotel
in Clydebank on 12 February
2002.
This is the fourth time the
Faculty has run the event
which is designed to give
criminal practitioners five
hours CPD.The cost of the
conference is £85, anyone
wishing to attend can contact
Graeme Yeoman at Stirling &
Gilmour Solicitors on
0141 952 2669.
There’s a £25 book token on offer for the first correct entry drawn from the hat
across: down:
1 Nicholas or Nick revised and cut
article in contract (5,5)
6 Second prize for the northern
porgy (4)
9 Understand intentions that
are concealed or transparent (3,7)
10 Article’s about immediately (4)
12 Dispersed in western parts not east (6)
15 Fear and turn over the vegetable
caterpillar (5)
18 Newspaper article that’s also dated (4)
19 So TESSAs should be regarded (6)
21 City reached by taking M1 and A1
round Maidenhead (5)
22 It’s in a head, a constituent of the
bones and teeth (7)
24 Drug addicts can identify legal rights
(5)
25 Secure perhaps and free from danger
(6)
26 Scots strip Irish in Turkey (4)
28 Coin once worth about
one-third of a pound, now about one
pound (5)
29 Toddler’s first paces may be unsteady
– look! (6)
34 Metal guide (4)
35 Oil giant – it resorts to lawsuits (10)
36 Book bills passed (4)
37 Unusual thinkers - eg Magi (5,5)
Solutions should be sent to:
Crossword Competition,
The Journal, Studio 2001, Mile End, Paisley PA1 1JS
Closing date Friday January 18th 2002
1 Stop is in street (4)
2 Coward’s Christmas (4)
3 Jar as the serving-dish (5)
4 Unattached miss accepts ring (5)
5 Earnest Abram? (6)
7 Transfer document for sleigh? (10)
8 One stamp I’m collecting –
Christmas variety (10)
11 Emma’s held up by me to see
the tree (6)
13 Blairgowrie fruit file (4)
14 16 times 12 plus 1 – maybe (7)
16 Latin’s aura can be the essence of
December revels (10)
17 This cell can be found in stables
too (10)
20 Cook treats wine expert (6)
23 Place for the present three
men – no others (4)
27 Vegetable is hard to chew (6)
30 Free in gym to show
self-esteem (5)
31 Chat about an instrument of
torture (5)
32 One of 30 and one of fifteen (4)
33 “Works of nature” sung on
rising (4)

Journal
News
Information from
the Registers
turnaround times
The current average turnaround
times in working days from the
Registers of Scotland are
as follows:
Sasine Writs
22 working days
with a maximum of 32 days
for the latest County
Unattached Dealings with Whole*
30 working days
with a maximum of 58 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 form the
turnaround time calculation.
Justice 1 begins hearing evidence
THE
Society was the first organisation to appear before the Justice 1 Committee to give
evidence on the regulation of the legal profession.
Martin McAllister, President of the Society, welcomed
the inquiry and the opportunity to give evidence on the
regulatory work of the Society, the powers it has been
given by Parliament sand the improvements the Society
hopes the Parliament can make. He also stressed the
importance of an independent legal system in a democratic,
modern Scotland.
He said:“The Society is a Statutory organisation and it is
therefore right that the Parliament looks at the work
that it does and the statutory framework it has for its
regulatory functions, which includes handling complaints.
“Over 8,600 solicitors in Scotland work on over a
million items of business every year and the Society
handles just over 1000 complaints each year – that
Supporting Huntington’s sufferers
EARLIER this year The Society’s staff voted to nominate the Scottish
Huntington’s Association as their chosen charity for support in 2001/02.
Ian Anderson, the charity’s Special Projects Officer, said,
“The SHA is a registered Scottish
charity and the only organisation
dedicated to promoting greater
awareness of Huntington’s Disease
and to campaigning for better facilities
for those who suffer from this
cruel condition. The Association
aims to provide an information and
advisory service throughout
Scotland as a support network for
individuals and families involved.We
currently have 7 advisory services in
various parts of the country offering
specialist advice and practical help.
Since our service started with one
location in the early 1990s we have
had over 700 client referrals as we
have expanded to other areas.
“The Scottish Huntington’s
Association has various events
which are designed to appeal to
those who want to help a very
worthwhile cause and at the same
time do something enjoyable and
challenging such as marathon
running and project parachuting and
White Water Rafting – win our
Legal Cup fun team event.
“The thrill and spill and splash and
dash of the foaming River Tay! That
is our annual battle with the rapids
at Aberfeldy and Grandtully in
represents less than 0.1 % of work undertaken.
“The Society is committed and diligent in its work. We
seek to ensure fairness at every turn and we will never
cease examining, improving and modernising our
systems. We are constantly working at improving the
way the profession deals with complaints as well as
working internally and with the profession to ensure
high standards in the administration of complaints.
“As lawyers, we are used to dealing with reality, as
indeed this committee and Parliament does, but we are
also aware that issues of perception require to be dealt
with.The public’s confidence in the system is fundamental
and the Society is committed to ensuring that people
can have confidence in its complaints system.”
Perthshire. Our event takes place in
the spring of each year, full safety
training and instructions are given.
This is a super fun day out,
everyone enjoys it. We need teams
of eight, ideal for offices and workplaces.
And this year, in recognition
of our support from the Law
Society of Scotland, we have a
special Legal Cup for the fastest
legal team on the day. We ask each
crew member to raise £75 in
support sponsorship and in return
we pay for the individual cost of
£25 per head ( prices subject to
final confirmation ).
“We will support any other venture
which you can think of to raise
money! In the past we have had
sponsored silences, we have had
haunted castle overnights, long
distance walks, abseils, river glides
and swimming endurance events.
Imagination is the only limitation, so if
you can think of some initiative
which you would like to take part in,
or organise, please give me a call and
I will do all I can to smooth your path
and help in whatever way I can.”
The contact for all events is IAN
ANDERSON, telephone 01505 322245,
or fax 01505 382980, or e mail
sha-admin@hdscotland.org or write to:
Scottish Huntington’s Association ,Thistle
House, 61 Main road, Elderslie PA5 9BA

Journal
People
Intimations for the people section should be sent to:
Denise Robertson, Records Department, Law Society of Scotland,
26 Drumsheugh Gardens, Edinburgh EH3 7YR
e-mail: deniserobertson@lawscot.org.uk
EOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE
ANDERSON BAIN & CO,
10 Thistle Street, Aberdeen, are
delighted to announce that
Robin J Leith (formerly of
ABERDEIN CONSIDINE and CO.),
has been assumed as a partner in
the firm with effect from 5th
November 2001 and Calum I Bell
(formerly of LINDSAY & KIRK) has
also been assumed as a partner in
the firm with effect from 1st
December 2001. We are also
pleased to announce the
appointment of Fiona J Crombie
(formerly of STORIE, CRUDEN &
SIMPSON.), as an associate in the
firm with effect from 23rd July 2001.
Finally, we are pleased to confirm the
appointment of our senior assistant,
Peter M Young, as an associate with
effect from 1st October 2001.
Telephone number has changed to
01224 626244 and fax number
changed to 01224 646411.
KIM BARCLAY, Dundee, intimate
that we have been required to
change our telephone server. Our
new telephone number is 01382
228722 and fax number is 01382
224248. Our e-mail and website
remain the same, e-mail
law@kimbarclay.co.uk, website
www.kimbarclay.co.uk.
David McCallum,
Biggart Baillie
BIGGART BAILLIE, Glasgow
and Edinburgh, are delighted to
announce the assumption of twelve
new partners with effect from 1st
November 2001. They are
Alexander Neave Read , Iain Reid
Innes McHardy, Iain Robert
McLean, Gregor Kerr Robertson
Mair,Victoria Linton Craig, David
Alexander Ratter,Vivienne Carol
Stuart, John Scott Buchan, Euan
David Thomas Pirie and Peter
Graham, all formerly partners in
STEEDMAN RAMAGE, Edinburgh
and Glasgow, and David McCallum
and Richard Ian Campbell Smith,
previously associates with
BIGGART BAILLIE.Those former
partners in STEEDMAN RAMAGE
and supporting staff have
transferred to BIGGART BAILLIE’s
offices at 7 Castle Street, Edinburgh
and Dalmore House, 310 St
Vincent Street, Glasgow, and the
former STEEDMAN RAMAGE
offices at 6 Alva Street, Edinburgh,
and 26 West Nile Street, Glasgow,
are now closed.
Richard Ian
Campbell Smith,
Biggart Baillie
BOYDS, Glasgow and Edinburgh,
are delighted to announce the
appointment of Alan Simpson as a
partner in the commercial property
department. Alan joins from
McCLURE NAISMITH and will be
based in Boyds Edinburgh office.
D W GEORGESON & SON,
22 Bridge Street, Wick, intimate
the retiral of their partner, Jean
McLennan, with effect from 31st
October 2001. Mrs McLennan
continues to be associated with the
firm as a consultant.
GOLDS, Glasgow, intimate that
with effect from 16th November
2001, John Michael Denning
Graham has resigned as a partner
in the firm. The firm extends its
best wishes to Mr Graham in his
future career.
JAMES GRANT & CO, SSC,
Edinburgh, intimate that with effect
from 1st December 2001 the firm
has relocated from its office at
65/8 St Leonard’s Street, Edinburgh
to new premises at 55 Clerk
Street, Edinburgh, EH8 9JQ.
The new telephone number is
0131 662 0622 and fax number
0131 662 4044.
Ross Hadden and Dorothy C
Rankin are pleased to intimate that
following their resignation from
MORISON BISHOP, Edinburgh,
they have commenced practice
with effect from 5th November
2001 as HADDEN RANKIN, WS,
26 Howe Street, Edinburgh, EH3
6TG, telephone 0131 220 5241, fax
0131 220 5242, e-mail
property@haddenrankin.com and
website www.haddenrankin.com.
ADIE HUNTER, 15 Newton
Terrace, Glasgow, intimate that they
have amalgamated with the firm of
STEVENSON & CO, Glasgow. The
combined practice will be carried
on from 15 Newton Terrace,
Glasgow, G3 7PJ. The telephone
number is 0141 248 3828 and fax
number 0141 221 2384. The
partners are David Robert Adie
and Graeme Hunter. Margaret
Stevenson has become a consultant
with the firm and the firm will trade
under the name of ADIE HUNTER.
The former STEVENSON & CO
office at 196 Byres Road, Glasgow,
has been closed and the business
transferred to 15 Newton Terrace,
Glasgow.
KIPPEN CAMPBELL, WS, Perth
and Aberfeldy, intimate that
Deirdre Anne Beaton retired from
the firm with effect from 31st
October 2001.
Ian K Laing retired as a solicitor of
Inland Revenue (Scotland) on 31st
October 2001 and his successor is
David S Wishart OBE.
LEDINGHAM CHALMERS,
Aberdeen, Edinburgh, Inverness,
Baku, Istanbul and Falkland Islands,
intimates that on 3rd December
2001 Stephen James Morrice
joined the firm as a partner in its
Aberdeen office. They further
intimate that on 1st December
2001 Nigel George Morley Watt
resigned as a consultant in the
Edinburgh office to take up a
position as a consultant with
SKENE EDWARDS, WS.
LIVINGSTONE BROWN, Glasgow,
are pleased to intimate that on
20th December 2001 they will be
taking over the business of
DAMIEN J COHEN & CO, 775
Shettleston Road, Glasgow.
Damien Cohen will join the firm as
a consultant. The telephone and
fax numbers for the office will
remain unchanged. On the same
date, the business of the firm’s
existing office at 8 Bridgeton Cross
will be transferred to the new
office at Shettleston. Contact
details for all of the firm’s offices
can be found at
www.livbrown.co.uk.
Iain Mack trading as DUNNET
MACK, Kirkintilloch, intimates his
retirement from legal practice and
the closure of said firm, with effect
from 1st November 2001 following
Mr Mack’s appointment as a
managing director of the MAB
(Scotland), 83 Union Street,
Glasgow. The firm of ROSS
HARPER, 58 West Regent Street,
Glasgow, have assumed

Photographs of people featured can be sent to:
The Journal, Studio 2001 Mile End, Paisley PA1 1JS
Journal
PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE PEOPLE
responsibility for the storage of
the former DUNNET MACK
client files and all future
correspondence should be
directed to that firm.
McKINNON HEWITT, 65 East
Road, Irvine, intimate the
resignation of Douglas W.
McKinnon as a partner of the firm
with effect from 30th September
2001. Frances M. Hewitt continues
business under the firm name of
McKINNON HEWIT, Irvine.
MacROBERTS, Glasgow and
Edinburgh, are delighted to
announce that John Michael
Denning Graham has been
appointed as Director-Business Law.
Mike has extensive experience in
both business and Private Client
areas and is a welcome addition
to the firm
J & H MITCHELL,WS, Pitlochrie, are
pleased to intimate that David
Gordon Ramsay Soeder has been
appointed an associate of the firm
with effect from 1st December 2001.
MITCHELLS ROBERTON,
Glasgow, announce that their
partner, William Marr Couper
Grant, retired from the partnership
with effect from 1st October 2001.
Mr Grant continues to be
associated with the firm as a
consultant.
ANDREW P MURRAY & CO,
Alexandria, are pleased to
announce that with effect from 1st
January 2002 the name of the firm
will change to MURRAY YOUNG.
Telephone and fax numbers remain
unaltered as 01389 755235 and
01389 755282.
O’DONNELL,VAUGHAN & CO,
Glasgow, intimate that with effect
from 1st November 2001 Frazer
Gordon Ewan McCready resigned
as a partner of the firm in order to
join DALLING, Stirling, as an
assistant. The remaining partners
John O’Donnell and Robert
Vaughan wish Frazer success for
the future and thank him for his
contribution to the firm.
PAGAN OSBORNE, Cupar,
Anstruther, St Andrews, Edinburgh
and Dunfermline, are pleased to
intimate that on 1st November
2001 Carolyn Wilson, who is based
at the Dunfermline offices of
PAGAN BUSINESS LAW, was
assumed as a partner of the firm,
having been an associate of the
firm since August 1999.
QUINN MARTIN & LANGAN,
Glasgow, are pleased to
announce that Shona Templeton
has been appointed an associate
of the firm with effect from 1st
November 2001.
Julia Fyfe,
Robson
McLean
Susan
Ballantyne,
Robson
McLean
ROBSON McLEAN, WS,
Edinburgh, are pleased to announce
that with effect from 1st December
2001, Susan Ballantyne and
Julia Fyfe have been appointed
associates of the firm. Both Susan
and Julia are based in the firm’s
litigation department.
W J C REED & SONS,
Laurencekirk, intimate the retiral of
their senior partner,Torquil
MacLeod, with effect from 30th
September 2001.
RUSSELS GIBSON McCAFFREY,
Glasgow, are pleased to announce
the assumption of Clair Janet
McLachlan as a partner of the
firm with effect from 1st
November 2001.
W R SCOTT & SOUTAR, Dundee,
are pleased to announce that their
associate David Ian Mathieson has
been assumed as a partner of the
firm with effect from 16th
November 2001.
SKENE EDWARDS, WS, Edinburgh,
are delighted to announce that,
with effect from 1st December
2001, Nigel G M Watt, WS, has
joined the firm as a consultant.
specialist accreditations
The undernoted have been
accredited as specialists in the
following areas:
Planning Law
Colin William Innes of Shepherd &
Wedderburn, Edinburgh
Family Law
Linda Elizabeth George,
T J & W A Dykes, Hamilton

Write to:
The Editor,
The Journal,
Studio 2001, Mile End, Paisley PA1 1JS
Fax on: 0141 561 0400
E-mail: journal@connectcommunications.co.uk
CML should
embrace IT
Journal
LETTERS LETTERS LETTERS LETTERS LETTERS LETTERS LETTERS LETTERS LET-
INNIS: Retirement Housing Advice Service
I
AM writing to tell members of the Law Society about the work that INNIS does and to raise awareness of some of the difficulties which
owners of retirement housing experience. Solicitors play a vital role in advising their clients when the purchase of a retirement flat is being
considered. Retirement housing, sometimes known as owner occupied sheltered housing, has become a small but significant part of the property
market. Older people who decide to buy this type of housing hope that it will be a home for the rest of their lives. Their expectations are
that it will offer a level of security and improved quality of life in retirement. Unfortunately for some, their experiences have not
matched their expectations leading to disillusionment, frustration, anger and in some cases lengthy legal proceedings.
INNIS is an advice service run by Age Concern
Scotland providing information and advice to
owners and prospective owners of retirement
housing. It is not intended to replace legal advice
given by solicitors. The service has been running
for two years and deals with a wide range of
issues from general enquiries made by potential
purchasers about the location of developments
to very complex problems relating to deed of
conditions. Our work includes building good
working relationships with the other professional
bodies who are involved with retirement housing,
including solicitors, estate agents, managing agents
and the Scottish Executive. Our aim is to ensure
that older people who choose retirement
properties are given sound, impartial advice and
COULD not the Council of
Mortgage Lenders, rather than
mess around making inane
pronouncements on Property
Enquiry Certificates, do
something useful for Agents
representing its members and
produce a website or CR-ROM
containing styles of all the known
Standard Securities, Assignations
and other documents used by
lenders? This could be updated
from the Internet on a monthly
basis and would prove of great
use to hard-pressed legal
secretaries having to leave their
state-of-the-art termini to revert
to cranky old typewriters several
times a week.
Magnus K Moodie
Magnus K Moodie WS, Edinburgh
information before they buy and that they
receive acceptable standards of service from the
managing agent in their new home.
It is clear that, for many of the owners who
contact us, the source of the problem can be
traced to the purchase of their property and a
lack of understanding about the terms and
conditions attached. Part of the work that INNIS
does is to encourage potential purchasers to
consider these issues and to ask the relevant
questions before they make their final decision.
For example, how are major repairs and
replacements for which each owner has joint
responsibility paid for? Is there a sinking fund?
Will the sinking fund cover the cost of planned
and unplanned maintenance or will owners have
Fees frozen for access requests
IN September’s Journal
you published a short article by
Derek Hamilton under the heading
“Access to Health Records - an
update” in which Mr Hamilton was
making the point that as from 24th
October, in terms of the Data
Protection (Subject Access) (Fees
and Miscellaneous Provisions)
Regulations 2000, the maximum fee
chargeable for all access requests
would be £10 whether the records
were manual, automated or a mixture
of both.
The article, however, was slightly
premature in that the Lord
Chancellor`s Department which
since June has been responsible for
data protection and freedom of
information matters within
Government, issued the following
Press Notice on 27 September -
“The Government has announced
that the charges levied by the NHS
for providing individuals with access
to their health records will continue
at current levels for the time being.
This means that the maximum fee
that can be levied is £10 for records
held on computer and £50 for
paper records or other media.
“Over the past year the
Government has been working with
key groups, including representatives
from the NHS and patient interests,
to evaluate the charges that are
levied under the Data Protection
Act 1998 for providing individuals
with copies of their health records.
“The issue has been to strike a balance
between ensuring that cost is
not a barrier to individuals requesting
access to their health records
and allowing the NHS to recoup
costs incurred in servicing requests,
so that essential resources are not
diverted from providing direct
patient care.
“This is a difficult balance to strike
but a Department of Health led
review of the current charges
established that the present
to be prepared to make additional payments to
cover the cost? We believe that in most cases
owners are willing to accept this additional
financial liability much more readily if they know
about it before they buy.
We would like all members of the Society to be
aware of these issues so that they can advise their
clients accordingly. We have leaflets and other
information which can be sent to members and
their clients. We are happy to discuss any aspect
of our work and can be contacted at INNIS
Retirement Housing Advice Service, 113 Rose
Street, Edinburgh EH2 3DT. Tel 0131 220 6347
Fax 0131 220 2779.
Euphan Todd
arrangement provides an
acceptable compromise given current
technology and record keeping
practice.
“The Government is committed to
continuing discussions with key
interest groups and to working
closely with the Information
Commissioner with the aim of
achieving a long term solution.”
The £50 maximum fee under the
Regulations, therefore, remains for
the time being.
Mr Hamilton also refers to the qualification
in s.8 of the Act - I would suggest
that given the volume and nature
of many types of medical records it
should be relatively straightforward
for a Medical Records Officer to
show, in appropriate cases, that
supplying copies requires “disproportionate
effort.”
Alan Sharp,
Scottish Health Service CLO

Journal
A Changing
Profession
BRIGHT FUTURE in private
client work
Frank Fletcher says reports of
the death of private client work
as a source of profitable
business have been greatly
exaggerated

Journal
A Changing
Profession
SOLICITORS
in Scotland work in a changing and increasingly challenging environment, running harder and faster
each year even to stand still.This is especially so at present for those serving the private client.
This article examines some of the current trends and pressures facing private client practitioners and suggests how private client
work might develop over the next few years in response to these.
Much of what follows will be truer of city than of
rural practices, though the latter will not be
immune from the resultant fallout. Some trends
are presently confined to Glasgow and
Edinburgh. Will they spread to Aberdeen,
Dundee and Inverness in time?
Among the serious challenges facing private client
practitioners, whether in large ‘all service’ firms,
specialist private client practices or general
practices, are: (a) substantial numbers of experienced
partners approaching retirement; (b)
difficulty in recruiting good young solicitors into
private client practice; (c) pressures on the
profitability of residential conveyancing and legally
aided work; and (d), in Glasgow
and Edinburgh especially, the
trend of larger firms jettisoning
private client work to
compete for the top end
commercial work, with or without
a substantial ‘parent’.
This latter trend is highly topical, following
the announcement by Maclay Murray and Spens
and McGrigor Donald on 20th November that
the latter’s Private Capital unit was moving to
Maclays. Kirk Murdoch, managing partner of
McGrigors, was quoted as saying:“For some time
now, our growth has been concentrated
on our corporate and
commercial practice and,
while we have valued our
private client work, we did
not see it as an area for
investment and expansion”.
It is widely
rumoured that the
move is a precursor to
McGrigors joining
KPMG’s KLegal stable.
This most recent development will not be the last.
Specialisation and competition in the commercial
market has been increasing for many years. First,
niche commercial firms emerged – Dickson
Minto, Dorman Jeffrey (now part of Andersen
Legal) and Semple Fraser obvious examples.
More recently some large corporate firms have
shrugged off the ‘all service’ image to focus exclusively
on commercial work – Burness appears to
have made that deliberate choice, Shepherd &
Wedderburn has in effect done so with the
departure of Robin Fulton to Turcan Connell, and
both Dundas and Wilson and the ‘old’ Bird
Semple have done so in the course of absorption
by Andersen Legal and DLA respectively.
McGrigor Donald may be involved in the same
process. If it does join KLegal, will the remaining
large independent corporate firms, most obviously
Maclays and Shepherds, eventually decide
to seek a major accounting or English legal
parent too?
These developments reflect more than just
continuing technical specialisation.They also highlight
the relative marginalisation of private client
work within large corporate firms in recent years,
both in terms of personnel numbers and fee
income.
Large corporate firms necessarily have significant
overheads.They need to maintain prestigious
city centre offices, to recruit
and retain good people in a highly
competitive market, to incur the
marketing and PR expenditure
necessary to maintain brand awareness
with tendering and panel
arrangements becoming the
norm, and to develop and
maintain IT systems able to
service a sophisticated and
demanding client base.
It is no surprise that
even well-to-do
private clients, who
pay their legal fees from
after tax income and without
recovery of VAT, are less able to
pay the hourly charge out rates
required by such overheads and that the influence
of the partners who serve them should
have waned within their firms.
This trend seems set to continue. In future,
most private client work, even at the top end of
the scale, is unlikely to be delivered by large ‘all
service’ but predominantly commercial firms. So
how will it be done and are there opportunities
here for imaginative private client solicitors? In my
view there are.
One need look no further than the rapid growth
of Turcan Connell in Edinburgh, since its establishment
in 1997 when Dundas and Wilson joined
the Andersen Legal stable. From the original five
D & W partners the firm has grown to 14 in four
years, attracting the Burness private client
partners, Robin Fulton from Shepherd &
Wedderburn and others, to become one of the
natural first choices for private client work in the
east of Scotland.
Whether this success will be mirrored in the west
and elsewhere remains to be seen. Looking
around the private client departments of some of
the other large, ‘all service’ but predominantly
corporate, firms in Glasgow, most with a relatively
few, older, private client partners, it seems likely
that this trend will sooner rather than later
displace at least some of them. In that event a
west of Scotland equivalent of Turcan Connell
may well emerge. My own firm intends to be at
the heart of that development.
While any successful firm must invest in its
premises, people and infrastructure, overheads in
private client work are lower than in corporate.
The key investment is in the development and
maintenance of close and lasting relationships
with clients and their families. That has more to
do with attitude and effort than marketing or PR
spend. Freed of the burden of competing with
corporate colleagues for the support and
resources of large firm management boards,
specialist private client practitioners can make a
good living and have more control over their
professional destinies.
Many positive factors encourage the growth of
specialist private client firms, particularly those
dealing with the acquisition, management and tax
efficient onward transmission of family wealth.
There is more wealth about.The spread of occupational
pension schemes, the growth in home
ownership, and the general rise in living standards
mean that more and more Scots have family
wealth to manage and eventually pass on to their
children, creating opportunities for residential
conveyancing, wills, tax planning and trust and
executry administration.
The greying of the population means that more
older clients need help with their financial affairs,
help scattered family members often can’t
provide, creating an increased role for the family
solicitor.
The prevalence of divorce, separation and cohabitation
means there are more, and more
complex, family units needing advice on asset
protection, investment, trust arrangements, etc.
When large corporate firms abandon private
client work, that work doesn’t go away. Their
former clients still need the advice, usually at
quite a high level of expertise.Where are they to
get it?

Every plc chairman and MD still
needs a will, has an elderly parent,
needs to mitigate the IHT problem
which his success has brought him,
etc. If he can no longer get that
advice from the Dundas and
Wilsons and McGrigor Donalds,
where is he to get it?
For the moment, some large
commercial firms retain a private
client department. Maclays appears,
in taking in the McGrigor Donald
Private Capital Unit, to be committing
to its department for the foreseeable
future; but where will the
new breed of pure corporate firm
refer the chairman or MD for his
personal advice – hardly to a
predominantly corporate rival, with
the risk that the corporate work
might follow him there!
This dilemma is partly what is
fuelling the success of firms like
Turcan Connell and my own.
Corporate firms can refer well-todo
business clients to them for
private work without the risk of
losing the client’s corporate
business.
At the other end of the scale, small
general practice solicitors and small
to medium sized accountancy firms
are happier to refer clients to a
specialist private client firm on a
consultancy basis than to the
private client department of a
major predominantly commercial
firm, to whom they may lose the
client’s other business. In an increasingly
litigious world, they know that
it is dangerous to stray into areas
requiring specialist tax, trust or
succession, knowledge which a small
general practice may not possess.
The opportunities are more
obvious in relation to the acquisition,
protection, management and
transmission of family wealth. Legal
Aid will continue to be a hard row
to hoe, as will much personal litigation,
unless significant sums are
involved, though even here there
are signs of firms seeking competitive
advantage through specialisa-
tion – such as Bonnar & Co. in
Airdrie who specialise in personal
injuries work and Batters & Co. in
Glasgow who deal exclusively with
licensing.
In my view the key is specialist
expertise in areas which can make a
real difference to financial outcomes
or help solve significant family
problems with financial consequences.
I find that clients are happy
to pay realistic fees for such expert
advice.
Despite what I have said about
overheads, successful private client
practice will continue to require
investment of time, knowledge and
money in training, the development
of IT systems, recruitment, etc. to
meet the needs of an increasingly
sophisticated clientele. Cost
containment through up to the
minute equipment and software
and new methods of service
delivery, particularly e-commerce,
will be vital.
But for those with the imagination
and courage to grasp the emerging
opportunities and the commitment
to developing the new expert
private client firms who will serve
the top end work in future, there
will be significant rewards. A good
living will be only one of these. As
important will be greater control of
one’s professional destiny and the
respect and support of like minded
colleagues who appreciate the
complexity of the work at the top
end and the expertise and
ingenuity required to do it
well.
This in turn will
help solve the
m a j o r
recruitment
and success
i o n
problems
facing many
private client
departments at
present. Such
new firms will offer
an attractive career alternative to
talented young lawyers, not all of
whom can become the rising stars
of Megalawyers Inc. or necessarily
relish the long hours, late night
settlement culture which nowadays
prevails in 1st Division commercial
work.The development and maintenance
of the close personal relationships
which successful private
client work requires may seem
more worthwhile than a higher
income but higher stress lifestyle
and burnout at 40.
I am certainly optimistic about the
opportunities which are emerging
for a different way of serving our
private clients and the increased
professional satisfaction which I
believe they can offer.
These views are necessarily
personal and partial, but I hope they
will help to stimulate discussion and
debate about our fast changing part
of the profession and perhaps
encourage some of those presently
concerned about their future role
in their present firm to take their
destinies into their own hands.
Come on in, the water’s lovely!
Journal
A Changing
Profession
In future, most
private client work,
even a the top end
of the scale,
is unlikely to be
delivered by large
‘all service’ firms
Frank Fletcher, Bird Semple Private Client Solicitors
e:
fwf@bsemple.com

Journal
Cost of Time
GENERATING PROFITS
in larger firms
In last month’s Journal article John McCutcheon and Andrew Otterburn* discussed the performance of the
smaller firms who had participated in The 2001 Survey of Law Firms.This month they consider the larger
firms – those with five or more profit-sharing partners, concluding that a better support staff ratio is
likely to result in lower costs per fee earner.
(Throughout this article
the term partner denotes a
profit-sharing partner.)
THIS
year has seen a further increase in the number of participants to 325 firms – the highest
number in the history of the survey, and representing a quarter of firms in Scotland –
55 of these firms have five or more partners.
Eighteen firms were from Edinburgh, nine from Glasgow
and six from Aberdeen, Dundee or Perth.The remaining
22 firms were in smaller towns, although none of these
had more than nine partners.This last group is referred
to as “country” in the report.
As the chart indicates those firms with 5-9 partners
were earning very similar pre-tax before profit levels to
smaller practices – a median of £59,000 per profitsharing
partner compared to £53,000 for 2-4 partner
firms. 25% of the 5-9 partner firms were earning over
£68,000 per partner.
Note:The mid point, or median, is the middle value in the
range and is not influenced by the magnitude of the
extreme values (as the average is).The 25% and 75%
points indicate the range of values. 25% of firms are
below the 25% point, and 25% of firms are above the
75% point.These points are also known as the “lower
quartile” and “upper quartile” respectively.
The big difference in results occurred for firms with over
ten partners where median pre-tax profits per profitsharing
partner were over £138,000, with 25% of firms
achieving over £175,000. The real change probably
occurs in firms with more than twenty partners, and
Size and location of participating firms – 5 or more partners
Number of Edinburgh Glasgow Aberdeen, Country Total
profit-sharing Dundee,
partners Perth
5-9 13 5 5 22 45
10+ 5 4 1 0 10
Total 18 9 6 22 55
next year’s survey may consider this group separately
for the first time.
The survey indicates that median profits for 5-9 partner
firms increased from £51,000 last year to £59,000 this
year. For firms with ten or more partners the
corresponding increase was from £86,000 last year to
£138,000. However, this may reflect changes in the
relatively small sample for this category of firms.
The particular difference between the 10+ partner
firms and other firms lay in their “gearing” ratios – the
number of other fee earners in addition to the profitsharing
partners, as indicated in the chart:
For larger firms this better gearing is likely to result in a
greater proportion of work being undertaken by less

senior fee earners. This is likely to
result in a higher level of fee income
per profit-sharing partner, where
the median is over £400,000 for the
largest firms as indicated in the
chart:
The firms with ten or more partners
also had fewer support staff per fee
earner – just over one other person
(secretaries, cash room etc.)
compared with one and a half
persons in all other categories
of firms.
This better support staff ratio is
likely to result in lower costs per fee
earner.
Two conclusions in particular can be
drawn from the survey concerning
larger firms:
● Below a certain level you do
not necessarily make more
money by being larger –
indeed some of the most
profitable firms are sole
principals in rural areas;
● As would be expected, the
most profitable firms are some
of the large city firms who are
able to attract certain types of
commercial work not normally
available to many smaller firms.
They are also profitable
however because of some of
the working practices they
follow and their ability to assign
work to the most appropriate
e:
andrew@otterburn.co.uk
fee earner.
All participating firms have been
sent a free copy of “The 2001
Survey of Law Firms in Scotland”,
the detailed report upon which this
article is based. Other firms can
purchase a copy of the full report
which contains a wide range of
useful statistics and performance
indicators. Priced at £80, this is
available from Lisa Anderson at the
Society on 0131 476 8164.
In April next year the President will
be writing to all firms inviting them
to participate in the 2002 survey.
Participation is free and carries a
two hour CPD credit as well as a
copy of the survey report. In recent
years there has also been a prize
draw. This year the prize – of a
theatre weekend in London – was
won by Friels, a three partner firm
based in Uddingston.The Society is
again grateful to Alex Quinn for
sponsoring the prize in 2001.
* John McCutcheon, until his recent
retirement, was Professor of Actuarial
Studies in the department of Actuarial
Mathematics and Statistics at
Heriot-Watt University. He is a member
of the Society’s Remuneration Committee
and, since 1980, has conducted the
annual Cost of Time Survey.
Andrew Otterburn is a management
consultant and contributor to Update
courses on practice management. His
book on the Profitability and Financial
Management of legal practices is
published by the Law Society in London.

www.sykesanderson.com
This site is worth a look as a very good example
of what a well-designed law firm website can do.
The site is owned by Sykes Anderson, a civil and
commercial law firm in central London. The firm
says that it is committed to the use of
information and communication technology in all
areas of its practice.The site seems to bear that
out. There are lots of useful features such as
automated calculators for unfair dismissal,
redundancy compensation, child support
payments, conveyancing and remortgaging costs.
The site acts also as a portal for clients so that
they can see how their case is progressing.
Usefully, that feature also contains a demo facility
so that the prospective client can see what
information s/he will be able to obtain if the firm
is given the business. That information is fairly
limited and does not offer the sort of access that
a full extranet would offer but it must be useful
nevertheless. The same facility also exists for
associates: other professionals with a connection
with the case. As is usual with well-designed law
firm sites, free information is offered, in this case
limited to a detailed summary of recovery of
heritable property and how to get divorced: the
latter complete with links to other useful sites.
And if the viewer wants to engage the firm, the
hourly rate is given for each type of fee earner:
£80 to £165 per hour. Most law firm websites,
Scottish and English, are not up to this standard.
It’s not too late to catch up! Go to
www.venables.co.uk/mysteries/scottop.htm for a
year-old review of the top 20 Scottish law firm
sites: Golds took the top slot.
Subjective Rating
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Advocate Derek O’Carroll selects three more sites
that might be worth visiting
Site design ◆◆◆◆
Ease of use ◆◆◆◆
Updating frequency
www.scia.co.uk
SCIA stands for the Scottish Council for
International Arbitration which claims to deliver
arbitration and dispute resolution on a world
class scale. Unfortunately, this website (still under
construction since July 2001) does not fully
measure up to the aspirations of the organisation.
What is useful about the site is the introduction
to the Scottish Arbitration Code (based on the
UNCITRAL model), a clear explanation of the
relationship between the courts and arbitration,
information on the UNCITRAL model itself and
a very basic guide to starting an arbitration. It
helpfully provides the choice of reading the pages
on screen or download in pdf or Word format.
However, the full text of the Code is missing,
many pages remain unwritten and only passing
reference is made to current live issues (such as
the growth of judicial review of Adjudicator
decisions in construction disputes). One hopes
that the site will continue to develop past this
start-up stage so that this internationally available
site does more adequately represent the
undoubted expertise and experience of those
involved and the rightful place of Scottish
arbitration on the world scene.
Subjective Rating
Speed ◆◆◆◆
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Updating frequency ◆
e:
Journal
Websites
www.legaleaglelinks.com
This very professional looking website is the
work of just one person: a trainee solicitor to
boot (albeit with a string of qualifications under
his laptop) as well as being something of a
hypertechie. The main purpose of the site is to
provide a collection of links to Irish legal
resources. The categories include professional
and trade links (connected to the few such sites)
and a find-a-solicitor map (are there really only
three firms in the whole of Kerry?), court links
(Irish and international), government links
(including debates in the Dáil and Committees),
employment law and finance. Potentially, the
most useful set of links is under Source and
Research. Here are links to the usual
constitutional and legislative material, and a
handful of links to caselaw databases. Usefully, the
links are re-categorised by subject areas: such as
constitutional, planning and partnership law. The
links provided are very much the basic and core
links to each area so that, for example, the
interesting and useful material in the Law
Society’s site on employment law issues is not
referenced in Employment Links section.This is a
good site to start with for matters concerning
Irish legal matters but still has some way to go
when compared with a site such as Scottish Law
Online (www.scottishlaw.org.uk).
Subjective Rating
Speed ◆◆◆◆
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Usefulness to non-practitioners ◆◆◆
Site design ◆◆◆◆
Ease of use ◆◆◆◆
Updating frequency ◆◆
Derek O’Carroll welcomes comments on the reviews
and suggestions for sites to review
jlsswebreview@blueyonder.co.uk

Journal
Drug Court
THE GLASGOW DRUG COURT
reducing drug-related
Sheriff Hugh Matthews rectifies some of the myths and misinformation about Glasgow’s Drug Court
ON
Monday 12th November, a man in his mid 20s with a string of previous convictions and
facing ten complaints, became the first person to be made the subject of an order by the
Glasgow Drug Court. On the same day the setting up of an equivalent Court in Fife was announced
by the Deputy Justice Minister.
The first meeting of the Working Group which
examined the feasibility of such a Court using existing
Scots Law and procedures was held on 22 February
2001 and while in other circumstances a gestation
period of just under nine months might not be regarded
as remarkable it is a tribute to the flexibility of our
system and to those who operate within it that a report
was able to be made to the Minister in May 2001 and a
detailed reference manual prepared by October.
The manual is described as an Interim First Edition and
the implications of that description are felt acutely by all
of us who are involved in this pilot venture.
Far be it from me to suggest that we do not know what
we are doing but there is an element of feeling our way
and the lessons learned will be incorporated in
amendments to the manual as we go along.
I suspect however that there are some who do not
know what we are doing and I shall try to explain as
best I can.
What is a Drug Court?
Drug Courts began in the USA in the late 1980’s and
have spread, for example, to Australia, Toronto and
Dublin.The basic ethos is the same in each of them but
they have all evolved in different ways depending on the
particular legal system involved and, while recognising
the debt owed to the American pioneers, it would be
wrong to describe the Glasgow model as “U.S.-style”
although the media seem incapable of referring to Drug
Courts other than by that description. For example, in
many American courts successful participation in a
scheme may lead to a reduction in sentence or even a
withdrawal of charges while in Glasgow the Drug Court
order is a disposal in itself. Furthermore, the system of
rewards and sanctions and the manner in which the
courts operate depend not only on the legal system but
on cultural factors.
For the avoidance of doubt, the Glasgow Drug Court
Sheriffs will not be on first-name terms with any of the
offenders as appears to have been mooted in some
media organs.
The point of these courts is to reduce the level of drugrelated
offending behaviour by reducing or eliminating
offenders’ propensity to misuse drugs by the use of
court-sanctioned treatment rather than traditional
sentencing and thereby to tackle the so-called revolving
door syndrome. It is hoped that the additional costs of
such courts will be offset by the savings to the public
brought about by the reduction in crime and early
indications from abroad are optimistic in this regard.
For greater detail the reader is referred to Justine
Walker’s paper on the International Experience of Drug
Courts published by the Scottish Executive Central
Research Unit in 2001.
How does it work?
In regard to matters of detail I commend to the reader
the Working Group’s report and the manual but it is
important to emphasise a number of points.
The Pilot can only cater for 150 to 200 orders per
annum and so there will be many people who might
seem suitable but who cannot be accommodated. We
cannot deal with every drug-related crime in Glasgow.
In order to limit numbers certain criteria must be met.
● The offender must be over 21 and there must be
an established relationship between a pattern of
serious drug misuse and offending. We will not be
dealing with first offenders.The nature of the drug
misuse must be susceptible to treatment and
cannabis abuse alone will not qualify.
● No case on Indictment will be considered and the
existence of outstanding matters on Petition will
exclude an offender as will the existence of
current Drug Treatment and Testing Orders from
the High Court or Stipendiary Magistrate. Persons
with a dual diagnosis of drug misuse and mental
health problems will generally be excluded.
● The “trigger” case ( which need not itself be drugrelated
) must have started life in the Custody
Court and must involve a substantive offence
(not, for example, a failure to appear) committed

offending
after 15th October 2001 although if it fulfils
these criteria other complaints can be rolled
up and dealt with. Cases involving more
than one accused will not be considered by
the screening group before calling in the
Custody Court but will thereafter be dealt
with according to circumstances.
● It is expected that most cases will proceed
on the basis of Pleas of Guilty although we
will not rule out referrals after trial and the
manual deals with various alternative scenarios.
It should be borne in mind, however,
that international experience has shown that
early intervention can be crucial and the
longer the gap between the commission of
the offence and the commencement of
treatment the less likely it is that treatment
will be successful.
● The offender will
normally have been
identified as potentially
suitable by the
police, who will
inform the dedicated
member of the
Procurator Fiscal’s
staff.The defence
agent may also alert
the Fiscal to potential
cases if the police have missed them. If the
Fiscal agrees, she will convene a pre-court
screening meeting with the offender’s solicitor,
the police and representatives of the
Social Work Department and if they agree
and a suitable plea is negotiated then this
will be intimated to the Custody Court
Sheriff who will be invited to defer the case
for a full assessment, including drug testing,
for a period of four weeks to call before
one of the Drug Court Sheriffs and to
admit the offender to bail.
Whether or not the Sheriff agrees will be entirely
a matter for him or her.
Assuming the case is so deferred it will call in the
Drug Court where the full range of Summary
sentencing options will be available.
Many people might
seem suitable but we
cannot deal with every
drug-related crime
in Glasgow
What kind of disposals can be expected?
Obviously each case will be dealt with on its
merits and there is no guarantee that a case
calling in the Drug Court will result in the
offender’s participation in the programme.
However, we expect to be utilising Drug
Treatment and Testing Orders, probation orders
with conditions of drug treatment, deferred
sentences on conditions and combinations of
these disposals. It will be a standard condition that
the offender report to Court for frequent
reviews.
Reviews of DTTO’s are a familiar statute-based
creature (See S. 234B-K of the Criminal
Procedure (Scotland) Act 1995) but they cannot
be held any more frequently than once a month.
There has been some discussion as to whether it
is appropriate or competent to order the
offender to attend court
perhaps fortnightly as a
condition of a probation
order.
Such an order is imposed
as a condition of bail in
the Toronto Drug
Treatment Court and it is
submitted that Section
229 of the1995 Act
(which allows a probation
order to contain “…such
requirements as the court, having regard to the
circumstances of the case, considers-
(a) conducive to securing the good conduct of
the offender or for preventing a repetition by him
of the offence or the commission of other
offences…”)
is sufficiently flexible to allow for frequent
reviews.
That is on the basis that, as the international
experience has shown, frequent court
appearances are themselves an integral part of
the treatment process and assist the offender to
carry on, thanks not only to judicial admonitions
where there has been some failure to carry out
the conditions of the programme but also to the
encouragement and words of praise which will
come from the bench when an offender has
done well.
Journal
Drug Court

Journal
Drug Court
It will be seen at once that these
tools are already available but,
uniquely, the Drug Court Sheriff
will, with the offender’s consent,
meet the various agencies involved
at pre-court review meetings
where progress or lack of it will be
discussed as a team and solutions
sought to problems such as by
increasing the frequency of testing.
Where an offender has done well a
range of rewards may be available
and these will be developed as we
go along. The Sheriff will have the
final say but this team approach is
one of the fundamental features of
Drug Courts and a major
contributor to their success.
As it happens the
team has had
s e v e r a l
opportunities to
blend and to learn
about each other’s
disciplines thanks
to the attendance
of many of us at an
international Drug
Court conference
in Toronto last
September followed by an intensive
three-day training seminar.
Members of the team have visited
the Dublin Drug Court and we will
be updating our training on a
regular basis in order for the
lawyers to learn more about
addiction, its causes and treatment
and for the social workers, medical
personnel and addiction workers to
learn from each other and from us.
Resort will be had, where
appropriate, to the provisions anent
amendment of DTTO’s and
probation in the 1995 Act (Ss.234E-
F, S.231 and Schedule 6) as well as
to those provisions relating to
e:
We do not expect
miracle cures and
recognise that relapse
into drug abuse
will be common
Sheriff.HMatthews@scotcourts.gov.uk
breaches but no decision adverse to
the offender will be made at a precourt
hearing. Any such matter will
require to be aired in open court.
We do not expect miracle cures
and recognise that relapse into drug
abuse will be common but we do
expect the offenders to be honest
with us, to turn up for their
appointments, to participate in the
counselling sessions and to refrain
from further offending.
These are early days but we are
already having to deal with
problems.
It is not always easy in a busy court
like Glasgow to have meetings start
on time with all of
the agencies
present, not all of
the assessments
have been
completed on time
and while provision
has been made for
Legal Aid cover it is
not entirely clear
how that is going
to work in practice.
In addition not
everyone is as yet familiar with the
criteria for inclusion.
The Drug Court team consisting of
representatives of the various
agencies involved will be meeting
on a regular basis to look at these
and other problems and we will be
glad to hear of any difficulties or
suggestions.
This is no panacea but we think
that this project can make a
difference not only to some of
those who are unfortunate enough
to be caught in the grip of drugs but
also to those who might otherwise
have been their victims.

Time to think again
IN
Journal
Independence
The perception of political influences detracting from that independence cannot be more clearly
illustrated than in the situation regarding the possible prosecution of Henry McLeish.
the public perception, the unfortunate affair of Henry McLeish, the former First Minister for
Scotland, is at an end. For lawyers, however, the most interesting part of the saga is yet to be played
out. The Lord Advocate has to decide, after receiving a report from Fife Constabulary, if Mr McLeish is to
be prosecuted - presumably for fraud or theft over his expenses claims for his Fife constituency office.
In the days leading up to his resignation, Mr McLeish, in
defence of his admittedly inaccurate expenses claims to
the Fees Office in the House of Commons, to a lawyer’s
eyes, appeared to admit repeatedly in public that he was
guilty of fraud. His constant refrain that he had not
personally benefited by taking the £36,000 for himself is,
of course, utterly irrelevant in a fraud indictment.
Indeed, his story that the money was used “for the
benefit of his constituents” is probably an aggravation of
any wrong-doing. Since the 19th century, the
Representation of the People legislation has made
“treating” of the public by politicians illegal as it is
perceived as a method of buying votes. Mr McLeish’s
tale of the use to which this money was put seems
suspiciously analogous.
But whatever may be the merits and demerits of Mr
McLeish’s actions, the position now is that the Lord
Advocate, who was a member of the McLeish Cabinet,
has to decide if his former boss should be placed in the
dock of a Scottish court and tried for fraud or theft.
Now Colin Boyd, the present holder of the Lord
Advocate’s office, is an honourable man. It is difficult to
believe that he will exercise anything other than a totally
professional judgment on this case, as in all others.
However, the perception must be that his decision will
be influenced by political considerations. This would
have been even more the case had McLeish hung on as
First Minister and the Lord Advocate had to decide if he
should be prosecuted when still holding office.
However, the new situation is not much different. The
damage done to the Scottish Executive by the prosecution
of a former First Minister (and still a sitting MSP for
the Labour Party) would be extreme. None of that, of
course, is legally relevant material for Colin Boyd in his
decision-making role. But will the public believe that
these factors will not weigh with him?
It seems that there may be a convenient solution to this
problem. The fraud, if it be such, was committed when
Mr McLeish submitted his incomplete claims to the
House of Commons Fees Office. This took place in
London. Although a fraud is the kind of crime which is
frequently cross-border and so can be prosecuted in
any jurisdiction which has an appropriate nexus, would
it not be more sensible in this case to consider that
England is the forum conveniens? If that approach is
correct then the decision as to whether or not to prosecute
Mr McLeish could be taken by the Attorney-
General, Lord Goldsmith. Lord Goldsmith, although, like
Colin Boyd, a creature of the Labour Party, has already
impressed as a man of considerable integrity. At the
remove of 400 miles, a decision taken by the Attorney
as to whether Mr McLeish should be brought before an
English criminal court would have the considerable
advantage of being perceived as properly dispassionate
and independent.
The wider constitutional question which arises out of
this sorry business is if the Scotland Act of 1998 got it
right when it legislated the Lord Advocate and Solicitor-
General into the Scottish Cabinet. The independence
which is required to fulfil the role of a Law Officer is
very much of the essence of that part of the job which
places the Law Officer at the head of the prosecution
system. But that independence is also one of the
hardest qualities to achieve and preserve. Since his
appointment, Lord Goldsmith has already given a
number of fascinating and frank talks on this aspect of
his work. Many public lawyers believe that the role of a
Law Officer is diminished and degraded by party-political
involvement. That involvement becomes a daily difficulty
if the Law Officer is placed in the political part of
the Executive - as has happened in Scotland. If a Lord
Advocate or Solicitor-General is a politician first and a
lawyer second, he or she is not worthy of the job.
Because of the new constitutional set-up we have in
Scotland, have we not put insurmountable obstacles in
the way of our Law Officers in fulfilling their proper and
traditional role as independent legal advisers to government
and heads of the prosecution system?
At the moment in Scotland, there is something of the
“last lagaar” mentality regarding devolution. Recent
events have delighted those who were against devolution
and given much force to their contention that it
simply will not work. In these situations it is very
tempting to put the wagons in a circle and repel all
boarders. But it would be a sign of considerable
maturity if Scotland was willing to admit that we may
have got this part of the Scotland Act wrong.
All democratic systems require independent legal advice
as part of the governmental process. That advice can
and must ignore party allegiances. Whether as a matter
of fact the independence of Scottish Law Officers is
compromised by the present constitutional set-up, only
those intimately involved in the process can know.
However, the perception of political influences detracting
from that independence cannot be more clearly
illustrated than in the situation regarding the possible
prosecution of Henry McLeish. In short, we should
think again.
If a Lord Advocate
or Solicitor-General
is a politician first
and a lawyer second,
he or she is not
worthy of the job

Journal
Media
Relations
NAVIGATING
the media maze
Solicitors need to be media sentient, both in the interests of advising their clients and promoting
their firm’s services, writes Roger Mackenzie
The golden rule is
to get back to
journalists quickly
or within an
agreed deadline
WHILE
the boundary between what constitutes media relations, public relations
and marketing is hazy, firms ought to grasp that knowing how to
use the media effectively is essential for modern solicitors.
Gillian Meighan, Head of Media Relations at the Law
Society of Scotland, says “working with the media is
becoming an increasingly important skill for solicitors in
Scotland”.
So what are the practical rules for solicitors for dealing
with the media?
“Media relations involves reaction to media enquiries
and stories, as well as actively seeking coverage. Good
communication skills are essential as is knowledge of the
media and how it works.
“On the reactive side, relatively minor issues can
become major issues if they are not handled quickly and
effectively with accurate information and comment.
Awareness of what to do, or having someone on hand
who does, is vital before a firm or an organisation
becomes involved in a story about themselves, or a
client.
“Solicitors are educated and trained that client
confidentiality is paramount and it is easy for a mental
portcullis to come down too abruptly when asked for
information about clients and firms.”
Gillian Meighan’s advice is to follow the law, use
common sense and avoid the words “no comment” at
all times.
“ ‘No comment’ can be the most damaging two words
in working with the media”, she warns. “Those two
words can clear a space for someone else to comment
in your place and leaves you little opportunity to set the
record straight. If there really is nothing that can be said
- perhaps for fear of prejudicing a case, or because you
are following client’s instructions - then explain the
situation and give the reasons why. Solicitors can often
confirm facts or information that is in the public domain.
They may find that their client is happy to give out
further information after taking legal advice.”
The golden rule is to get back to journalists quickly or
within an agreed deadline. “You may not have the
answers available immediately or want some time to
consider your response. If so, then tell the journalist that
you will get back to them, agree a time and stick to it. If
you are delayed, keep them informed of what is
happening. Journalists are working under an increasing
amount of pressure to report stories within tight
deadlines.There are fewer specialists in the media than
even a few years ago and many journalists who write
about issues they may not fully understand look to
solicitors for information and explanations to assist their
understanding and the accuracy of their story.”
Her advice is to steer clear of jargon, speak in plain
English and remember that journalists have deadlines
and a limited amount of space for your comment.
“Try to latch on to the story, find the line that the
journalist is following, listen to what they have to say and
discuss the issues, explaining the law if necessary. If you
have been contacted then you have a chance to set the
record straight.Your explanation may change the report
and can show up a story that is without foundation.”
The media community in Scotland is relatively small and
playing one journalist off against another can be a
dangerous tactic but what about how comment will be
used and when is “off the record” off the record?
“ ‘Only say it if you want to see it in print’ is the rule of
thumb many follow. Different journalists can have
different rules. ‘Off the record’ can mean that it will be
used but not attributed to you.‘Background information’
can mean that it will not be used but will assist the
journalist to understand what is happening. It is best
simply to agree with the journalist about the use of a
comment before you say it. The more you deal with a
journalist, the more you build trust and may agree to
give background information, but it is a personal choice.”
When Peter Lockhart was filmed and photographed
flanking his client outside the High Court after the
collapse of the Ayrshire child abuse trial, it was part of a
calculated process to put forward a case the Court
didn’t get to hear.
“From the start it was apparent that there was
enormous media interest in what was effectively to be
Scotland’s biggest paedophile trial.
“When the trial crumbled, my client and the rest of the
accused felt that they had lost their chance to put
forward a defence and strongly state the case for their
innocence.

“There was no feeling of elation
when the trial ended, all the public
had heard about was the evidence
of the children. After discussion
amongst the agents and the accused
the decision was made to hire the
services of a media adviser and
come up with a co-ordinated
response to the collapse of the trial.
“There was a unanimous feeling we
had to seize the nettle, and that it
was very important to go out on to
the doorstep of the High Court to
make a statement to effectively
demand a public inquiry. All the
accused and their agents agreed to
that policy, got together and framed
a statement.
“It was a very successful approach.
The press line would have been that
they got off on a technicality; instead
this gave us high ground on news
reports that night which reported
the unhappiness of the accused.
“People might have shied away from
such an approach but it was a good
example of when it was the right
thing to do. Experience told me we
could use media interest in the case
to the best advantage of our
clients.”
He suggests training could help
some solicitors who are often very
wary of dealing with journalists in
the belief that what they say will be
twisted.
“In fairness to journalists this won’t
be the case. It sometimes happens,
but in my dealings with journalists
they have always reported
accurately.”
Lockhart advises practitioners to be
aware, however, there are dangers
and note the Society’s Practice Rule.
“Some clients won’t want to
comment on a case, practitioners
need to clarify with them whether
or not they should have dealings
with the media and need to be able
to warn the client about the
implications of any such dealings.”
Solicitors can also be proactive in
dealing with the media, generating
positive coverage of the law and
raising the profile of their firm or
organisation.
Gillian Meighan advises building
relationships with local papers and
radio stations, which can often yield
more coverage and feedback than
national media. Sometimes it is
difficult to see a return on the effort
invested but frequently contacts
established come to fruition later on.
“Be available for comment in the
local press, perhaps establish a legal
column, give them good local
interest stories and build
A legal expert willing
to comment to the
media, can bring
opportunities for
your business
relationships with local journalists
and editors, so that they can rely on
you and trust you. Good local media
contacts can help clients raise the
profile of their business or publicise
their views and can help solicitors
raise the profile of the law, legal
issues and their firm or organisation.
Becoming established as a legal
expert who is willing and able to
comment to the media, can bring
many opportunities for your
business .”
Peter Lockhart has also cultivated
local and national media in order to
raise the profile of his Ayr-based
firm Lockharts.
“In terms of being pro-active and
generating good publicity for the
firm there can be an advantage to
having your name in a newspaper or
being on national television. When
this is directly linked to the firm’s
name it raises your public profile
and it’s hard to put a price on 60
seconds on national television.”
If you are invited to give a television
interview it’s worth thinking about
the backdrop, if can you get the
firm’s name in the background, so
much the better.
“Firms should build on the fact they
might have someone in the firm
who has the skills to be a
spokesperson. They need also to
think about local radio and
newspapers looking for stories and
realise they are unwittingly sitting on
a vast array. Solicitors should say to
a client ‘here is how the story will
go’, outline the possible advantages
of that and maximise the benefit, all
the time making sure the client
knows what is being said on their
behalf.”
Austin Lafferty’s media profile
ensures he is probably Scotland’s
best-known solicitor. Frequent
appearances on television and radio
and a column in The Sun mean, to
many, he is in effect the face of the
legal profession. Unsurprisingly he is
a strong advocate of the positive
benefits that can accrue by
cultivating the media.
“If you are creative, you can get your
face in the paper without spending a
penny. At a local level it need only
be feeding a story about something
out of the ordinary, whether it’s
abseiling off the Hilton, or
whitewater rafting for charity.
“These are corny, but evergreen,
methods to get your name in the
paper, making you look good and
show solicitors aren’t ‘high priests of
law’.”
Offering a legal advice clinic to the
local paper or on local radio is
another sure-fire way of getting
positive publicity.
Journal
Media
Relations

Journal
Media
Relations
“Very few people think about it, but it
gets the firm’s name, address and
phone number in the press, while the
paper gets free copy and a feature that
they can’t produce themselves. Your
only investment is creativity and effort.”
His own media career began 20 years
go when he phoned Radio Clyde and
persuaded them they needed a legal
clinic.
“I’m surprised that in that time nobody
has ever risen to try and take ‘my crown’. Other lawyers
are sometimes on air but nobody else does what I do.
While that’s good for me, I’m not sure if it is for the
profession.”
Though he claims to be unaffected by the reaction of his
peers, he was “well aware of a degree of contempt in
early days”.
“I think I have become an institution, part of the
furniture. It says something about the profession
generally that they don’t want to do what I do.
Experience tells me that the numbers who hold me in
low regard are less than there used to be and there is
perhaps greater recognition that I am doing a service to
the profession as a whole.
“Solicitors are sometimes surprised to see me at court,
as though I’m somehow not a real lawyer. All they can
see is my column and television appearances, but that’s
a very small part of my working week. I do a full shift
at the desk as a general practitioner like everyone
else.”
He pursues media work for “my own sake not
just for what it brings to his firm”, though the
marketing and advertising it provides is
priceless. His national profile means that
in terms of advertising all he has to pay
for is his Yellow Pages entry.
“Many cases arrive because I am the
‘lawyer on the telly’, but it can be a
double- edged sword when people
phone for ‘wee bit of advice‘.”
So what tips would he offer
practitioners in dealing with
journalists?
“In essence, solicitors sell secrecy,
and are right to exercise caution
because confidentiality is key
and doesn’t sit well with giving
quotes to media professionals.
“Thinking beyond that, a
solicitor can sit with a client
and discuss pros and cons of
publicity or reacting to
Peter Lockhart
A spokesperson need
not be the senior
partner but does
need to be someone
who is a good
communicator
unwanted publicity.The default position
is to shut up shop and say nothing but
there is benefit in co-operating.
“Take charge of any conversation, ask
what they know and are prepared to
tell you about articles they are writing,
say you are telling them things off the
record and use these words. Try to
make an agreement that you get to
check any copy for accuracy before it
goes public, journalists are good at asking questions
leading you in to giving more information than you want
to, so be careful when giving replies - especially when on
the record.”
For some firms, a dedicated media relations and public
relations plan might involve using a consultancy. Gillian
Meighan again.
“Firms should have communications plans in place,
co-ordinate media and marketing communications, have
financial and time resources allocated and a clear view of
what they want to achieve. A spokesperson need not be
the senior partner but does need to be someone who
is a good communicator.
“Invest in some training, ask a journalist to tell you about
their job and what they need, what they look for in a
commentator and what makes them come back to you
until you become an established contact”.
While many solicitors now deal with the media as a part
of their work and have a much better understanding of
the media, some are still reticent to talk to the media,
especially if they have had a bad experience. “Problems
arise for solicitors who have had no contact or a bad
experience with the media and find themselves being
contacted for comment in a crisis.The damage may be
done before a consultancy can be employed or the skills
learned. On the other hand, developing the knowledge
and the skills of media relations and taking advantage of
the opportunities the media presents can be a
worthwhile and fruitful experience.”
Josie Saunders, a senior account manager at the BIG
partnership, a public relations company with experience
working with a commercial law firm, an online legal
service and a firm with criminal expertise, says legal
firms can be more pro-active in generating a media
presence.
“Law firms are now recognising the benefits of
marketing as a way to ensure their place in a highly
competitive industry and public relations plays a major
part in any marketing strategy. Budgets are always
limited but those firms that are keen to raise their profile
are turning to PR advisers to help them generate a buzz
about their firm. Many law firms, from the big players to

the smaller operations, are
beginning to adopt strategies that
distinguish them from their rivals
but those with a PR focus seem to
be breaking free from the pack.
“All firms want to grow their
business and PR is an essential tool
to help achieve specific business
goals. Larger firms with lots of fee
earners and high profile cases on a
regular basis can use PR to publicise
how well they are doing in
comparison to their competitors.
This can help to attract other high
profile cases and customers but it
can also be a platform to generate
interest in a new service, a high
profile appointment or a change of
address.
“PR can help smaller firms to
develop niche markets that will grab
a larger slice of the legal market,
whether it is in employment, sport,
commercial property, banking or
housing. The media is a curious
animal and there is an art to
securing coverage, whether it is in
print, on the radio or on television.
Reporters and editors need a good
news line before they will print a
story and will knock back anything
that resembles advertising.
“The mainstream media reacts
against unnecessarily complicated
legal jargon and complex
descriptions about changes in the
law and has in the past used this to
make solicitors, law courts and firms
appear out of touch. Similarly many
solicitors do not understand how
the media works and assume that
any contact with a journalist will
result in bad publicity. A PR
company can help make legal
services more accessible and can
present them in a punchy way. It can
also help solicitors tailor their
delivery so that the story makes the
news schedule. A PR adviser will
help law firms understand the
dangers of speaking to the press
and will be a middle man who
shields the firm or individual from
unwanted exposure.”
Useful tips for
effective press relations
e:
● Stories must be angled for different audiences, whether these are
identified by their location, interests, age or sex
● A press conference or briefing should only be called when the
story is sufficiently important
● Draft legislation, the Budget and official statistics all provide
opportunities to provide comment.The press will favour those
organisations able to provide sound, reasoned comment.
● Good photographs are important to illustrate appropriate stories
● Product or service brochures and other explanatory material
should be provided if this will help journalists
● Quotes should be attributed to someone of sufficient authority
and interest to the press, and they should be available for interview
whenever possible
● A contact name must be provided on any material sent to the
press, including an out-of-hours telephone number
From Effective Media Relations published by The Institute of Public Relations
roger@connectcommunications.co.uk

Journal
Management
WINNING PITCHES
or learning when to
This is the first in a series of articles looking at practical solutions to tackle some problems we now face.
In this article Fiona Westwood focuses on a new problem for many professionals – being asked
by clients to “pitch” for work.
In formal
presentations, the
key element is to
provide sufficient
illustrations of what
we have achieved
for other clients to
allow potential new
clients to make
that choice.
EVEN
the most sophisticated of commercial clients has a limited understanding of the services
we provide. Clients can only appreciate what we do for them by what they directly
experience.As a result, to win a pitch for work, we need to be able to contextualise what we will provide –
by showing them that we have expertise in and experience of their particular situation.
In addition, we need to start to build a working
relationship. At the end of the day, clients will have to
make a personal judgment about whether to use us or
not. Research into how clients choose their
professionals highlights the importance of trust. In
addition, clients want to work with people who
understand them and are focused on solutions.
Finally, clients want their professionals to listen to them.
Too often professionals do all of the talking and expect
the clients to be impressed by this. Clients, however,
would prefer to be listened to rather than talked at!
Let us start by looking at formal presentations.
Formal presentations
1 Contextualise what we do
Many professional brochures and websites tell us how
important these firms are – that they have offices in 15
cities in Europe or that they employ 200 people. This
generates a “so what” response in clients – “so what
does that mean for me?” Clients can become cynical
about expensive offices, websites and staff.They wonder
if they will be expected to pay for all of these in the fees
we charge. Quoting our hourly rates at them merely
confirms that we charge by the hour rather than by the
results we achieve! Clients are much more interested in
finding out whether the firm has experience of his or
her particular situation and what success it has achieved
for other clients.
It has become fashionable to present formal pitches
using PowerPoint software.This allows firms to develop
template introductions to themselves and their services.
However, many clients now complain of “PowerPoint
fatigue”, where teams of professionals spend 40 minutes
or an hour talking at them, showing no regard for the
clients’ business or understanding of their situation.
Clients notice when there has been little pre-thought
or preparation. They often find it difficult to
differentiate one group of presenters from another.
Some firms do rehearse and practise their
presentations but many do not, thinking that they will
“wing it” on the day. One of my clients accepted any
opportunity to pitch for work, with the result that they
won 1 in 10 pitches. They estimated that, including
partner and travel time, each pitch cost them about
£4000, with the result that the one piece of work they
did win had to generate in excess of £30,000 of profit
to break even. By concentrating on targeting key
clients, they now win 1 in 3.
It is important to think through the content of the
presentation. With limited time, it is essential to make it
direct and straightforward, avoiding jargon. Depending
on the client, using humour can be a valuable way of
getting a message across. One firm of surveyors, pitching
for a project where teamwork was vital, simply put up 3
slides illustrating great cartoon teams!
Sometimes it is easier to jump the “should we use this
professional firm?” stage to “how would we use this
professional firm?” stage by offering a couple of options
of how the project would proceed.This approach allows
us to show our understanding of their context and our
experience in it, as well as illustrating that we are
prepared to invest time in clients up front.
2 Develop trust
Both clients and professionals want to work with people
they trust. For professionals, this means that we can get
on with our work without constant interruptions and
back covering and that we get paid promptly. For clients,
it means they can focus on their own job rather than
spend time watching over people they are paying!
At the outset, whether we trust people is based on
instinct checked against subsequent experience. We
make this instinctive judgment by finding out about
people’s values – are they the same as our own? Think
about how we ask about family, background and past
experience. Once we establish that there is

shut up
commonality, we will check our
judgment against direct experience.
In formal presentations, the key
element is therefore to provide
sufficient illustrations of what we
have achieved for other clients to
allow potential new clients to make
that choice.
Knowing who we are presenting to
is vital. If, for example, the selection
panel includes the finance director,
he or she is likely to value
professionals who minimise risk and
deliver certainty. If we can provide
examples of bringing the project
through on time or where we
directly reduced risk, that director
will want to work with us.
Formal pitches by definition can
become too formal with clients
struggling to see the people behind
the presentation. It is important
therefore to keep the pitch short
and to the point and then sit down
and let the client speak.
3 Listen to them
In general, professionals tend to talk
rather than listen, yet clients
continually complain about our
inability to communicate effectively.
As a result, we need to be very
careful about how much we talk!
Listening to clients allows us to find
out what is important to them and
what they are looking for from their
professionals. By asking particular
questions, we can also find out how
they make decisions. Finding out
what other professionals they use
and why provides illustrations of
what is important to them and
what they will want from us.
Like any skill, our ability to listen can
improve with practice. It needs to be
built in to any formal presentation
and not just left to happen by
chance. In addition, attentive listening
implies direct eye contact – not
taking notes! It also requires us to
show that we have listened in the
way we then respond. Too often
listening appears to be an
opportunity to mark time until the
next opportunity to start talking
again where we left off!
Being able to respond to any
question the client may have shows
that we are experienced in their
situation, not just that we are good
talkers. At the end of the session,
clients have to make a judgment
about who to use and speak of a
“leap of faith”. One part of that is
hearing us say that we want to work
with them, yet many firms do not
include that in their pitch. This may
to us appear to be stating the
obvious (as why else would we be
here and have put all this effort into
being here) but it still needs to be
said.
Finally, it is important not to assume
that formal presentations are always
the best way to convince a client.
Some clients would prefer
informality.
Informal presentations
These three
elements apply
equally in any
informal discussion
with existing clients and
potential new clients or
contacts.
One of the main mistakes that
professionals continue to make is
that we assume existing clients
understand the full range of
services the firm provides.
Clients need basic information
about what we can achieve for
them. Developing trust with
existing clients should be much
easier but cross selling
continues to be fraught with
difficulties. At the end of the
day, people make an intuitive
judgment about whom they
trust. Assuming that they will
automatically trust other
professional in our firm is a
mistake. We need to manage
this transition by continuing to
be part of the “getting to know”
process until we feel confident
that both sides will work well
together. Listening continues to
be an essential part of informal
client development. We all
recognise the difference between
spending time with people
at a networking event
who do all
Journal
Management

Journal
Management
Professionals tend
to talk rather than
listen, yet clients
continually complain
about our inability
to communicate
effectively.
the talking and those who listen to us and develop a
two-way conversation with us.
How to do it?
● Prepare fully for any formal presentation – the
background to the client and their brief. What is
their overall objective? What impact will this
project have on their business?
● Find out who you are pitching to. How do they
make decisions? Are they risk takers or risk averse
● Find out what other professionals they use. Ask
them about the client – how did they decide
about them? What works well with the client?
● Think through whether formal presentations are
the best way – many clients would prefer
informality with professionals illustrating that they
can work alongside them
● Tailor your presentation to show your
understanding of their problems – show them
what you can actually achieve for them
● Keep it short and to the point – 20 minutes
maximum and then sit down and shut up
● Build in time to listen to the clients – prove that by
listening at this stage you are confident that you
can take any questions they have and that you will
listen to them in the future
● Have some specific questions for them – show
them that you have thought about them, that you
are prepared to listen to them and respond to
them
● If possible offer them a number of options – this
bypasses the first stage of “should they use you”
to “how can they use you?”
● Say that you want the work!
Fiona Westwood runs her own management and training
consultancy specialising in working with the professional sector. A
solicitor with 20 years’ experience of private practice, she
established Westwood Associates in 1994.
For more information see her website,
www.westwood-associates.com.
e:
faw@westwood-associates.com

ALL I WANT FOR CHRISTMAS IS SOME PKI
... I think
IMAGINE
a world where your Practising Certificate is abolished, and to be a solicitor
you need to have a Smart Card, which can be used to electronically lock
documents and prove you are who you claim you are.You think this couldn’t happen in Scotland?
It has already happened in other countries. It should happen here. It could happen here inside twelve
months if people wanted it to. But ours is a profession that has a long-term love affair with pen and paper.
The purpose of this article is to demystify digital “signatures”.
In the paper world millions of paper documents are
exchanged daily via Legal Post, Royal Mail, DX and so on.
Why? You accept paper-based instructions because you
are conditioned to make an indirect and subconscious
assessment of the:
● Headed notepaper
● Style & Signature
● Presentation and other features
● Trustworthiness of the sender
If the envelope is sealed, you assume the contents are
still intact and confidential.
All this happens instantly as the document is opened,
read and interpreted. Doubts can be resolved with
comparison to previous documents, the signature can
be compared to a known predecessor or a confirmation
phone call could be made to the sender.You could even
personally visit the offices of the sender to confirm: but
who has ever done that? If the integrity of the packaging
has been compromised or is suspect the recipient can
immediately alert the sender.
It can be argued that in the electronic, e-mail world this
comfort factor is less easy, and less intuitive to grasp.
Because –
● There may be no opportunity nor time
to meet
● Instructions may come from someone you
don’t know
● There is no damaged packaging to alert you
to hacking and lack of confidentiality
But think about it. In the e-world sending e-mail is like
sending a postcard through the mail system. It can be
read, copied, changed, added to, examined etc. as it
passes through sorting offices. You wouldn’t send your
clients letters on a postcard. And this is why increasingly
solicitors are adapting to and adopting new technology,
seeing and benefiting from increased usage of electronic
communications. Benefits include:
● Reduced Office Administrative Costs
● Reduced Post Costs (DX, LP, Royal Mail)
● Responding to client demand
● Faster turnaround times
So how do solicitors operate in an e-world whereby
instructions, issued electronically (eg in e-mail), will be
immediately trusted and treated as if they had been
presented as an original paper document?
Clinging to paper might be easier and more comfortable
for you. But it is unlikely to give you a competitive edge.
The Law Society of Scotland believes IT and electronic
communications offer significant advantages and wants
to ensure the profession is best placed to take
maximum advantage of these.
People need to know that their e-mails and web traffic
will stay confidential. Building a trusted electronic
environment requires a number of skills in addition to
technical know-how. There are three cornerstones,
which are fundamental to the process and solicitors
have an advantage in two of them:
1 Creation of a trusted environment using Public
Key Infrastructure (PKI) technologies
2 Legislation and Regulation
3 Laws of Evidence
It would be easy if all the issues could be purchased
shrink wrapped from a local IT store but the Society can
support and assist in this area. By taking a professionwide
view the Society can address all three
cornerstones for the benefit of all.The remainder of this
article looks at PKI.
A Trusted Environment built on Public Key
Infrastructure (PKI)
Some marketing gurus hold that that lawyers sell trust,
not knowledge of the law; in the same way that Black &
Journal
IT
The Law Society of Scotland is well ahead of the Digital ‘Signatures’ game: Scottish solicitors
must keep up with developments in this crucial area

Journal
IT
Decker sell perfect holes, not drills.
Trust is everything in the legal
profession. Preserving trust and
confidence within the electronic
environment can be addressed using
PKI techniques.
PKI is really a fancy name given to
the collective package of:
● Software
● Technicalities
● Procedures
● Administration and
documentation
In combination these provide a
secure and trusted environment for
electronic-based communications.
PKI is much more than a simple
software product.
Fundamental to the
operation of PKI is the
concept of electronic
public and private
keys. A short
explanation is
required here to aid
understanding with
regard to the
operation of
these keys.
Public and private keys
are manufactured
simultaneously and operate as a pair.
They are useless with out each
other. Public keys can be distributed
to everyone and indeed they should
be; private keys must be kept to
oneself. Perhaps one day soon, all
Scottish solicitors will have their
public keys posted on the Law
Society website! When I wish to
send you a message securely I use
your public key to encrypt the
message and send it to you in the
knowledge that only you with your
secret private key can decrypt it (i.e.
no one else can have read it).
Additionally I can sign a message
with my private key and send it to
you.You can confirm it was me, and
only me, who sent it, by using my
public key to analyse my signature.
Assuming that keys are issued,
managed and administered in a
tightly controlled way to a given
community, trust and confidence
follows within that community when
using keys to securely exchange
information. PKI is the infrastructure,
which brings that control for issuing,
managing and controlling keys and
educates users in the operation of
the system.
The Law Society of Scotland wishes
to support the profession by setting
up a PKI infrastructure for the
profession to use.
Why and What is The Law Society
of Scotland doing about this?
There are sound business reasons
for the Society to pursue this
initiative on behalf of the profession:
● Natural Role extension
● Fragmentation and
Avoidance of incompatible
solutions
● Consistency In Operation
● Reliable interoperability and
acceptance with other
systems (e.g. SLAB, ARTL)
The Society already maintains the
definitive register of solicitors. It
issues Practising Certificates. A
natural extension of this is to issue
‘electronic certificates’ or ‘keys’.
Issuing keys within a rigorous PKI
infrastructure against the definitive
register (which no other provider
can do) maintains trust and integrity
when using and receiving certificates.
Further concerns are fragmentation.
Fragmentation leads to uncertainty.
Do we really want fifty different PKI
systems in use amongst Scots
lawyers? With just one system, trust
can be maintained, understood and
ensured. Consistency in operation,
management, and certificate issue
etc. is ensured. Users of the system
will be comfortable to accept and
recognise certificates of other users,
because they understand the
rigorous rules of the system. The
Society can also manage
interoperability with other systems
on behalf of users achieving an
economy of scale which individual
firms will not achieve.
The Society believes that by being
proactive it will avoid the risk that a
series of different incompatible
solutions (i.e. a number of poorly
thought out or implemented PKI
infrastructures) will be randomly
implemented. Firms should not be
expected to study and understand
the complexities or technicalities of
PKI and it is crucial to avoid a
situation where-by firms are
pressurised to adopt a solution to
suit the providers’ sales figures

A free-for-all unfolding across the profession
serves neither the interests of
solicitors nor clients
rather than one for the benefit of
the profession.
In a fragmented solution none of
this exists. Were there to be a
number of systems and certificate
providers how would you as a
recipient of a secure e-mail know:
● Whether the key from a
source can be trusted?
● Has the issuer of the key
undertaken rigorous checks
to ensure that the user of
that key is who he claims
to be?
● Is the sender a bona-fide
solicitor in the first place?
The answer to these questions is
“you don’t know”. With that lack of
knowledge comes uncertainty. With
uncertainty no trust can exist.
Without that trust……what was it
lawyers sold again? A free-for-all
unfolding across the profession
serves neither the interests of
solicitors nor clients.
The Society has also been working
closely with SLAB and the Registers
of Scotland ARTL team (has your
firm signed up to the pilot yet – if
not why not?) who have initiatives to
streamline their processes and make
them more efficient. SLAB and
ARTL will use the Society’s PKI
solution to enable members access
to their new developments.
What then has the Society been
doing? More than you think,
probably.
Since July of this year a small project
team headed by the Society’s IT
Director, Gordon Brewster, has been
assessing the market place. Detailed
discussions have taken place with a
number of providers. After site visits
to the Netherlands Bar, the London
Borough of Camden, and Scottish
Amicable, an Invitation to Bid
document was issued in September,
which set out the requirements of
the Society on behalf of its
members. Five possible providers
responded and an assessment panel
selected a preferred provider.
Detailed discussions are now under
way with this company and a
presentation to Council will follow
shortly.
Marsh, the Society’s insurance
broker, has been involved at all
stages to ensure risk and relative
indemnity insurance matters are
addressed. Significant insurance and
risk management issues arise in the
project and Marsh will continue to
be involved in discussions concerning
these issues....(a fragmented solution
with the profession implementing
solutions independently and
randomly will not address this very
important issue).
Running in parallel with this,
representatives of the project team
have taken the opportunity to brief
and consult with the profession.
Presentations have been given at
Nothing But The Net Conference,
the Legal Aid Conference and the E-
Commerce committee. This article
is another part of the process and
the authors welcome and encourage
feedback from readers with regard
to this initiative.
By undertaking this, the Society
ensures an economy of scale. The
provider will be mandated to
provide:
● Profession wide technical
training
● Road shows across
Scotland to promote and
increase awareness
● Comprehensive Help Desk
for all users
● Verification of User Identity
to secure trust
● Monthly reports to the
Society on progress and
performance
It is anticipated that this can be
provided for a cost of under £1.50
per week per user in the first few
years. Once awareness builds and
the user base grows economies of
scale become significant and the
Society believes this can be
provided for under £1 per week per
user. A firm would immediately
recover this cost through reduced
DX, LP and Royal Mail charges and
increased use of secure and signed
e-mails (not to mention the savings
in paper, envelopes and
administrative time).
Gordon Brewster is Director of IT at the
Law Society of Scotland. Paul Motion a
partner with Ledingham Chalmers,
Edinburgh and is the Convener of the
Society’s E Commerce Committee. Both
authors sat on the PKI assessment panel.
The second part of this article is due to
appear in February 2002 and will focus
upon legal aspects of digital signatures.
e: Paul.Motion@LedinghamChalmers.com
e:
gordonbrewster@lawscot.org.uk
Journal

Journal
Criminal
Courts
TIME FOR FUNDAMENTAL REVIEW
of children’s evidence
Sheriff Andrew Lothian examines issues including corroboration, sentencing and expert witnesses
in his ongoing series rounding up the latest developments in the criminal courts
I
TAKE this from “The Herald”of 17 October:“The judge said that he had checked this
(an item of evidence) on Mr Allason’s own website directly after the trial ended last Friday….”
If true, this is an interesting development in the law of evidence and reminds one of the east coast baillie
who was supposed to have prefaced his finding of guilt on an assault charge with the words “As it happens
I was passing on a bus and saw the whole thing myself.” But the judge in question was sitting in England;
it is perhaps now more profitable that we should turn our attention to what has been happening in Scotland.
ECHR Cases
ECHR has been invoked in some pretty odd
circumstances so far.Two recent cases demonstrate that
its provisions have, not surprisingly, not been of much
assistance in attacking the concept of breach of the
peace and of the duty of a judge to deal summarily with
contempt in his or her court. Common sense might
dictate that the existence of a general public order
offence and of the power of a judge to enforce proper
compliance with decent behaviour in court were
essential in any developed society: happily that appeal
court has affirmed that that is
indeed the case. Smith v
Donnelly 2001GWD 26-1011,
which involved a protester
lying on the road, held that it
was neither possible nor
desirable to provide a
comprehensive definition of
the crime, that what was required was conduct that was
genuinely alarming or disturbing, taken in context, to a
reasonable person and that while there would inevitably
be borderline cases this was not unusual with all
common law offences. It was observed by the court that
the fact that police officers do not at any stage charge
someone with an offence does not mean that the
offence has not been committed. The case of Little
(Cheryl) 2001 GWD 30-1179 confirms that in making a
finding of contempt on the ground of prevarication by a
witness, the sheriff is not acting as prosecutor and judge
(by implication in a separate case) but merely carrying
out a normal judicial role in assessing the evidence
before the court.
One of the most frequent invocations of the
Convention has been in connection with the question of
delay.Another such case is that of HMA v Dodwell 2001
It may be that there is once more
a ground swell of dissatisfaction
about how we approach the
evidence of children
GWD 32- 1274, which was a successful Crown appeal
against a sheriff’s decision dismissing an indictment on
the grounds of a breach of the accused’s right to a
hearing within a reasonable time. Nineteen months had
passed between the police interview and the
indictment, but the court held that this was not, prima
facie, unreasonable given the type of case (drug
offences). Another case worth a look is Mills v HMA
(no2) to be found at 2001 GWD 31-1228, which lays
considerable stress on the fact that the completion of
proceedings for ECHR purposes includes the appeal
part, even although at this later
stage the Lord Advocate is no
longer master of the instance.
A more radical look at the
whole matter, however, is to be
found in the judgment of Lord
Reed in the case of HMA v R
2001 GWD 32-1275, which
discusses the question of what the proper remedy may
be where a trial is not brought within a reasonable time.
Starting with the proposition that in every case it is
necessary to examine the exact nature of the violation
in order to ascertain its legal consequences and thus to
find an appropriate remedy, his Lordship goes on to hold
that domestic courts can provide a remedy for delay in
a number of ways, including discontinuing proceedings,
reducing a sentence, (something mentioned in Mills,
supra,) acknowledging the delay and awarding monetary
compensation. Adopting this approach, it becomes clear
that a plea in bar of trail will only be sustained in
exceptional circumstances. If this approach is to be
followed, it would appear that the widespread belief that
the only remedy for delay is bar of trial will no longer
have any force. It should be noted that his Lordship
specifically observed that there is no reason why the
civil courts should not grant a remedy under s 8 in cases

where appropriate redress cannot be obtained
from the criminal court. Something of a spoke
among the pigeons, as the mother of one of my
friends used to say, and so far as reading is
concerned, an essential judgment.
Corroboration
I do not suppose I am the only person to put on
a philosophical frown whenever the word
corroboration is mentioned although I daresay
the whole thing is my own fault for having dark
thoughts about its effect on credibility as
opposed to sufficiency. The topic turns up again
in Mackie v HMA 2001GWD 26-1009 and
Anderson v HMA 2001 GWD 27-1090.The first
case is about corroboration in a rape case, where
it was argued, unsuccessfully, that the medical
report founded on for corroboration of the
complainer’s evidence that the act, agreed to
have occurred by the appellant but said by him
to have been consensual, was in fact against her
will. I am bound to say that the idea of
corroborative evidence fitting in with the
account given by the complainer, rather than
inclining to favour it over any competing
explanation, is one with which I continue to have
some difficulty. In the second case the court was
once more dealing with the question of
corroboration by means of distress, in
circumstances where there were two charges,
abduction and lewd conduct, and only one
episode, if one can so put it, of distress. So how
is the jury to know where the corroboration lies?
In this case they were directed that they could
not look to distress in respect of the
corroboration of the second charge, which
seems to have met the appellant’s point that in
addition to directing the jury that they had to be
satisfied that the distress was attributable to the
abduction and detention, it should
have been emphasised that they
should be satisfied it was not
attributable to the alleged
indecent conduct. Ford v
HMA 2001 GWD 34-1325
deals with corroboration in a
case of attempted rape. First
the court held as unsound the
appellant’s argument that it
was necessary for the
crown to prove an
actual attempt at penetration, the requirement
being rather an intention to have intercourse
forcibly and against the complainer’s will together
with conduct that took matters beyond
preparation to perpetration. Then it was held
that both evidence of distress and of the
condition of the complainer’s clothing might be
capable of corroborating her own account of
what happened. It was held that not every detail
of the complainer’s account had to be
corroborated, the court following the decision in
Fox v HMA 1998 SLT 335 in this respect.
Expert witnesses
Another interesting case about evidence is HMA
v Grimmond 2001 GWD 27-1083 which deals
with an attempt by the Crown to lead the
evidence of an expert witness, who had had no
contact with the complainers (boys aged eight
and seven at the material time) particularly on
the topic of two-stage revelations. (The children
had originally reported acts of indecency and it
was at a later stage that the allegation of sodomy
was made.) It was argued on behalf of the
Crown that it was reasonable to lead evidence as
to how common two-stage revelations were in
the specialised area of child sexual abuse, the end
result being it was intended, to strengthen the
credibility of the child witnesses. The Court
refused the motion on the basis that the
assessment of evidence was a matter for the jury
who would bring to the task their experience of
life and human nature.This seems to be the law
as it stands; whether it should be is another
question.To leave matters as complicated as this
unexplored by expert evidence, which may
illuminate areas where some lay people would
not even realise that there is a problem, seems
verging on the perverse: common-sense after all
is only an inability to understand how
complicated the problem really is.
It may be that there is once more a ground swell
of dissatisfaction about how we approach the
evidence of children, both as victims and as
general witnesses. It may be too that the matter
is of greater urgency than some of the issues of
pest control that have
occupied legislative time
recently. If there is to be
a reconsideration of
matters, it is to be
hoped than it will
involve something a
bit more fundamental
than the removal
o f w i g s
and the erecting
of screens. In
Journal
Criminal
Courts
particular there may be much to be said for one
video interview only by a trained questioner
prepared to elicit not only the child’s story but
also the particular matters requested by
prosecution and defence.
Sentencing
Now a couple of matters relating to sentencing
to be found at 2001 GHWD 1158 and 1159. In
the latter, HMA v Mason, a post-Galbraith case, a
plea of guilty to culpable homicide on the
grounds of diminished responsibility was
accepted where the accused was found to have
an abnormality of mind which impaired his ability
to control his actions and in particular his inability
to see the connection between his grabbing his
wife by the throat and the risk of his killing her.
On a less serious level, in Angiolini v Duguid an
accused who had pleaded guilty to throwing a
snowball which hit a police officer was invited to
make a payment to a charity of his choice and
having done so was accorded an absolute
discharge.Years ago I remember being less than
impressed when the then sheriff at Dingwall
made it a condition of a probation order that my
client should pay a large sum to a police
dependants’ fund. An opinion about the certainty
of a successful visit to the appeal court was
immediately rejected by a client only too glad
that the stranger to local ways representing him
had not mitigated him into a custodial sentence.
Contempt
A couple of contempt cases are reported in
2001 GWD 34. 1327 HMA v Beggs (no2) was
an application on behalf of the latter that the
“publishers” of certain matter to be found on
websites be ordained to appear before the
court. In refusing the application the court held
that there had been publication in terms of s 2 of
the Contempt of Court Act 1981, that “the time
of publication” meant all of the time that the
material was available and that there was no risk
in the circumstances that the course of justice
would be prejudiced thereby. 1327- Beggs (no1)
involves an unsuccessful motion that an order
should be made under s 4 of the act prohibiting
any reporting of the trial until its conclusion, the
defence, who made the motion having to make
the fatal concession that they could not be
prejudiced by fair and accurate reporting.

Journal
Risk
Management
RISKS IN ADVISING SPOUSES
– the Etridge effect
This month,Alistair Sim looks at the risk management issues for practitioners flowing from the decision
in Etridge. The contribution of Ken Swinton, University of Abertay Dundee, in commenting on
a draft of this article is gratefully acknowledged.
THE
recent case of Royal Bank of Scotland v Etridge (House of Lords, 11 October 2001) has once again
highlighted the problems arising from a transaction in which a wife had agreed to grant
a security to a lender over her share of the matrimonial home in order that her husband (or the husband’s
company) could obtain further finance.While the case is generally referred to as Etridge there were a number
of different cases heard at appeal. Following attempts by the banks to enforce the charges, the wives argued
that they had signed the charges under the undue influence of their husbands. Scots law was changed by
the House of Lords in Scotland by Smith v Bank of Scotland to produce results in line with the English decision
in Barclays Bank v O’Brien, albeit from a different theoretical basis. Etridge had already been influential in the
development of Scots law, being cited in Forsyth v Royal Bank, Wright v Cotias and Broadway v Clydesdale Bank
Much of the discussion in Etridge focused on the alleged
deficiencies in the quality of legal advice given to the
wives. The speeches of a number of their Lordships
pointed out that the current practice of giving legal
advice is perfunctory and often honoured more in the
breach than observance. “The system is a charade.
In practice it provides little or no protection for a wife who
is under a misapprehension about the risks involved or who
is being coerced into signing. She may not even know
the present state of her husband’s indebtedness”.
(Lord Nicholls)
The content of the advice from the solicitor will be
dependent on the circumstances of the case, but Lord
Nicholls suggests a “core minimum” of advice:
● explain to the spouse the nature of the documents
● advise the spouse as to the implications of
signature in practice: in particular, the fact that the
spouse could lose his/her home in the event of the
business underperforming – the spouse could, of
course, ultimately face bankruptcy
● point out to the spouse the seriousness of the
risks involved
● advise the spouse as to the reason for the new
lending, the amount of the further lending and its
principal terms
● advise the spouse that the lender might increase
the amount of the lending, change the terms or
even grant a further facility without any intimation
to him/her. In terms of the Mortgage Code, lenders
should no longer seek an unlimited guarantee from
a cautioner/guarantor. Solicitors should therefore
be aware that now an attempt to seek an
unlimited guarantee should be seen as unusual.
● tell the spouse the amount of his/her liability
● discuss with the spouse his/her finances and the
valuation of the property
● check whether there are any other assets which
could be used to pay off the borrowings, in the
event of the business failing
● advise the spouse that he/she has a choice – this
will most likely require to proceed upon a
discussion of the current levels of indebtedness
● seek the spouse’s confirmation that he/she wishes
to proceed – solicitor should confirm that spouse
is happy for confirmation to be given to the bank
or whether he/she wishes the solicitor to negotiate
the terms of the transaction
Such a discussion with the spouse should take place at a
face-to-face meeting in the absence of the borrowing
spouse. In addition, in Lord Nicholls words, “It goes
without saying that the solicitor’s explanations should be
couched in suitably non-technical language. It also goes
without saying that the solicitor’s task is an important one.
It is not a formality”
In Scotland, the basis of the Smith decision was the
creditor acting in good faith. In Forsyth, Wright and
Broadway, Lord Macfadyen has interpreted this narrowly
so that the creditor is entitled to assume that the spouse
has been given advice where it appears to the lender
that the same solicitor is acting for both spouses, even
when that is not in fact the case. It seems that in
Scotland the risk is more likely to lie with the solicitor
rather than the lender.

Risk management action points
Their lordships have given their own
risk management guidelines within
the speeches in Etridge. Whilst only
persuasive in Scotland it is likely that
it will de facto set the standard
north of the border as well.
Practitioners should familiarise
themselves with those guidelines
but should also be aware that:
a Each subsequent case will turn
on its own facts – the risk
management must be
proportionate to the facts.
Etridge does not provide a tick
box checklist to complete
protection against a claim
b There are a number of
additional risk management
points that flow from the
principal ones reviewed in
Etridge, such as:
● The information that may have
to be given to the spouse
could involve financial advice –
care should be taken that the
solicitor has the necessary
expertise to advise
● It may prove necessary to ask
the lender to disclose financial
information about the debtor’s
finances to the proposed
guarantor/cautioner. Again here
the Mortgage Code makes
clear that this may be required
and a waiver of confidentiality
may be needed by the lender
but equally by the agent where
he has knowledge of the
debtor’s financial affairs. This
may often mean not completing
the advice in a single visit.
The more pressure put on a
solicitor to complete the
matter quickly, the greater the
potential risk.
● If the point of the exercise is
to ensure there is adequate
separate legal advice given to
the spouse, the spouse should
effectively be treated as an
entirely separate and distinct
client, rather than a “consensual
add-on” to the husband’s file.
Lord Nicholls did not require
separate advice for spouses
and considered that in many
cases the husband’s agent
would be best placed to advise
the wife, being familiar with the
business and the family circumstances.
However, the 1986
Practice Rules should not be
forgotten either. There is an
exception for spouses to the
general rule that a solicitor
may not act for two or more
parties whose interests may
conflict but this does not apply
where there is an actual
conflict and a guarantee by a
spouse is always a potential
conflict.
Spouse should
effectively be treated
as an entirely
separate and
distinct client
● Additionally, it may be prudent
to have a separate meeting
with the spouse, rather than a
rushed discussion whilst the
husband is sent out of the
room. This physical separation
of dealings may reinforce the
message of Etridge but was not
seen as essential in the case.
● As with any other client, make
sure the message has been
delivered clearly. It may be up
to the solicitor to manage the
client’s expectations upwards:
i.e. making sure they know they
are not just signing “a bit of
paper” but are committing
themselves to a course of
action with potentially huge
ramifications. Spouses will
often regard the entire process
as a huge imposition on their
time for nothing more than
legal “form-filling”. Solicitors
will, however, have to reconcile
these requirements with the
fact that there may be no real
alternative for the spouse.The
whole family finances may be
intricately bound up with the
transaction and without the
security the family business
may fail, along with the only
source of income.
● Make sure there are adequate
records on file regarding the
advice given to the client and
the instructions to proceed.
● Although not an essential
element in Lord Nicholls’
formulation, make sure that the
advice is followed up by letter
and that the letter is actually
received by the spouse. In
Broadway the letter was
collected from the solicitor’s
office and it was claimed that it
had never been seen by the
wife. If necessary, get a copy
signed and returned for the
file.There will only be one
person in the firing line if the
lender is unable to enforce a
security through an
Etridge/Smith claim!
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
Risk
Management

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
EUROPE EUROPE EUROPE EUROPE EUROPE EUROPE EUROPE EUROPE EUROPE EU
EUROPEAN UPDATE
THIS
month we feature a number of brief articles on areas of European law which are currently on the move. The Society’s Brussels
Office produces each month the Brussels Agenda, a publication which aims to give brief updates on progress on different areas
of EU law which are of most interest to practitioners – giving advance warning of future changes in the law, outlining European Court of Justice
cases of particular importance and providing up to date information on current EU negotiations. This month the Agenda features items on money
laundering, criminal law, data protection, employment law and a number of other matters, some of which are set out below. The Brussels Agenda
can be received either by post or by e-mail and is also posted on the Society’s website. If you would be interested in subscribing to the
Brussels Agenda (which is free of charge), contact Sarah Fleming at the Society.
MONEY LAUNDERING Green light for new money laundering Directive
ON 13 November 2001, the European
Parliament facilitated the final adoption of a new
Directive on money laundering, by approving the
compromise text, which had been agreed by the
Conciliation Committee in October
(http://www.europarl.eu.int/plenary/default_en.ht
m) [under “Joint texts approved by the
Conciliation Committee”].The new Directive will
require lawyers engaged in financial or real estate
MEP Marco Cappato was given a
second chance to win the hearts of
MEPs on the much-debated
Commission proposal for a
Directive to protect privacy in the
context of electronic communications(http://europa.eu.int/eurlex/en/com/pdf/2000/en_500PC038
5.pdf). During their plenary session
in September MEPs referred the
proposal back to the Citizens’ Rights
During its second reading in October 2001, the
European Parliament voted for amendments
previously rejected by the Social Affairs Council in
June 2001 over the proposed Directive for equal
treatment amending Directive 76/207/EEC. The
Commission’s proposal establishes a general
framework on equal treatment in employment
transactions to identify clients and report
suspicions of laundering of the proceeds of
serious crime to the authorities.The Directive will
also recognise legal professional privilege when
lawyers are engaged in giving legal advice but this
is subject to a number of exceptions.A lawyer will
not be covered by privilege, if he/she is engaged in
a criminal enterprise with a client or knows that a
and Freedoms Committee. On 13
November, MEPs agreed that
Member States should be given the
choice, when implementing the
Directive into their domestic legislation,
as to whether unsolicited
e-mails for marketing purposes will
only be permitted with the prior
consent of users (‘opt-in’) or
whether users should merely be
given the right to un-subscribe to a
mailing list (‘opt-out’). MEPs were
more definitive on the issue of direct
marketing by fax, SMS (text
messages) or automated calling
systems, where they voted in favour
of an ‘opt-in’ approach. On the
controversial issue of traffic data
retention, MEPs emphasised that
Member States should only be
allowed to restrict data protection
provisions for national security and
and occupation, covering discrimination on
grounds of sex, race, age, religion or sexual orientation
and also includes a definition of sexual
harassment in the workplace. Amendments reintroduced
by the European Parliament include a
distinction between sexual harassment and
harassment on the grounds of sex, the introduc-
client is involved in money laundering. Member
States will be able to decide whether to apply the
prohibition against ‘tipping-off’ to the legal
profession. The UK already has legislation which
forbids ‘tipping-off’. The Council of Ministers
formally adopted the Directive on 19 November
2001. EU Member States will be given a period of
eighteen months to implement the Directive
DATA PROTECTION Second time lucky for Parliament’s vote on ‘spamming’ legislation
the investigation of crime, if this was
appropriate, proportionate and
limited in time. The Parliament
opposes any form of blanket electronic
surveillance. The Council will
continue its deliberations on this
draft Directive, which has been given
even greater prominence in the
aftermath of the 11 September
attacks on the United States.
EMPLOYMENT LAW European Parliament challenges Council on equal treatment Directive
CRIMINAL LAW Raft of new proposals in the sphere of criminal law
Justice and Home Affairs Ministers
met on 16 November in order to
discuss ways of ensuring greater cooperation
in the sphere of criminal
law.There are a number of concrete
proposals currently being discussed
including measures to combat
terrorism and a European arrest
warrant. In relation to the former,
only six EU Member States currently
define terrorism in their domestic
legislation and each definition is
different. One possible solution is to
adopt the definition used by the
United Nations: “intimidating the
population or forcing governments
or international bodies to do, or
abstain from doing, something.” In
terms of the arrest warrant,
Ministers agreed a list of thirty
crimes which would fall within its
tion of measures to tackle discrimination at the
work place, the creation of confidential counselling
services, the right to paternity leave and the
establishment of bodies to ensure that equality
legislation is complied with. The proposal is now
expected to go to conciliation.
scope. There were however differences
of opinion with regard to
extradition to non-EU countries.
Ministers hope to be able to reach
agreement on these issues by the
end of the year.

Information is also available from the Society in Edinburgh from Sarah Fleming.
Tel: 0131 476 8132 Fax: 0131 225 4243
E-mail: sarahfleming@lawscot.org.uk
ROPE EUROPE EUROPE EUROPE EUROPE EUROPE EUROPE
JUSTICE AND HOME AFFAIRS
Hearing on Draft Convention of the Hague Conference
ONCE in force, the Convention of the Hague
Conference on Private International Law,
proposed in 1999 will regulate both the direct
jurisdiction of the courts in civil and commercial
matters and the recognition and enforcement of
foreign judgments in approximately 55 countries.
As a follow-up to the current draft the
Commission organised a hearing in Brussels
covering the latest status of the Convention on 24
FOLLOWING objectives laid down
in the October 1999 Tampere
summit, where it was agreed that an
area of freedom, security and justice
should be created within the
Community, EU Member States have
reported on their progress to date.
In respect of asylum and
immigration, the general consensus
is that not enough action is being
October 2001. A number of participants from
industry, consumer interest groups, academic institutions
and the regulated professions attended.
Many felt that it was vital for the USA to be a
signatory for the Convention to be truly global.
Some also believed that it was too ambitious to
have such a broad Convention. However, lawyers
who attended generally welcomed the increased
predictability and reliability that would emerge
Member States provide assessment on Tampere objectives
THE seven-member group of Company Law
Experts, appointed by the European Commission
to advise on a new proposal for a Directive on
take-over bids, attended a meeting of the
Parliament’s Legal Affairs Committee on 5
November 2001. In a report to the Committee
on their work, the experts admitted that the most
difficult question for the group, with regard to the
taken in this field. Some Member
States would like the Directives on
reception conditions, asylum
procedures and family re-unification
to be adopted immediately whereas
others have shown resistance.
Criminal law has also proved to be
contentious as some Member States
have expressed a preference for
harmonisation whereas others
favour applying the mutual
recognition principle. Views on civil
law are less divergent as most
Member States agree that there
should be a simplification of crossborder
civil procedures. The
Commission has also recently
provided its assessment on the
Justice and Home Affairs scoreboard
COMPANY LAW AND FINANCIAL SERVICES
Experts report to Parliament on company law issues
ON 15 October 2001, a hearing
was held at the European Parliament
to receive views from experts in the
field of financial services on the
planned Directives on prospectuses
and market abuse. The main idea
behind the proposal for a Directive
on prospectuses is to create a ‘single
passport’ for issuers, so that once a
prospectus is approved in one
Member State, it can be accepted
take-over bids Directive, concerns the creation of
a level playing field for shareholder rights throughout
the EU. The group is expected to make
recommendations to the Commission on a
revised take-over bids Directive by the end of the
year. Another aspect of the group’s mandate is to
examine broader company law issues and it was
reported that these could include the need for
without any further conditions or
procedures throughout the EU
(http://europa.eu.int/comm/internal_
market/en/finances/mobil/com280e
n.pdf). The proposal on market
abuse establishes a framework and
harmonises Member States’
legislation on insider dealing and
market manipulation
(http://europa.eu.int/eurlex/en/com/pdf/2001/en_501PC028
1.pdf). The main points for debate
on the Commission’s market abuse
proposal were: (1) Criminal vs
Administrative sanctions and (2) a
Code of Conduct. The debate on
the prospectuses Directive revealed
several areas of concern for the
experts and chief among them was
registration with a home competent
authority. The overwhelming view
Journal
once the Convention comes into force. It was also
felt that various intellectual property rights should
be dealt with individually rather than collectively.
At the end of the hearing, the Commission stated
that it would take stock of the points raised and
that negotiations would now continue between
the contracting states on the present substance of
the Convention.
(http://europa.eu.int/comm/dgs/justi
ce_home/index_en.htm) generally
applauding the efforts made by the
Member States to realise the
Tampere goals.The Commission will
now present the scoreboard to the
December 2001 Council in Laeken
where the Tampere agenda will be
reviewed.
EU rules for co-operatives and mutual societies,
transfer of corporate seat and the ability of shareholders
to exercise voting rights across borders.
The experts will deliver a report to the
Commission with recommendations on the
broader regulatory aspects of company law by
June 2002.
Market abuse and prospectuses Directives put under the microscope
was that issuers should be free to
choose the competent authority
with which they file their prospectus,
provided there is a reasonable
connection with the Member State
of the competent authority. Both
Directives are expected to be put to
the Parliament’s plenary sessions in
February/ March 2002.

Journal
Review
BANKING LAW in Scotland
SCOTLAND
hosts the headquarters of some of Europe’s largest banks and
banking is now one of our major industries. Despite this
most of the main Banking Law textbooks are published south of the border with the result
that we have only a limited supply of banking textbooks available for Scottish students.
The publication of Mr Grier’s book
is therefore to be welcomed as it
presents a useful opportunity for
consideration of some of the more
recent developments in the field of
banking law in Scotland.The author
acknowledges that the book is not
intended to provide comprehensive
coverage of all banking related
topics. With this in mind where he
touches on specialist areas he
provides some helpful guidance to
readers who require more detailed
commentary on the subject matter.
On reviewing the Contents section
it was not surprising to see that
many of the
‘boilerplate’
chapters of
banking law
books appear,
such as those
dealing with the
structure and
regulation of the
UK Banking
system, Types of
Account and
the Transfer of
Money. One
chapter did, however, catch the eye
under the rather unusual title “The
Responsible Bank”. In this chapter
the author explains how banks
operate under a complex web of
legislation and codes of practice and
touches on a number of issues
which were not previously covered
to any material extent in Scottish
banking textbooks. The guidance
provided in this chapter will be
useful to Scots Banking Law
students but may be less
comprehensive than an experienced
practitioner will require. For
Nicholas Grier
W Green
ISBN 0 414013 093
Price £80
example, the author cites the case
of Stafford v Conti Community
Services Limited [1981] 1 ALL
E.R.691 as authority for the
proposition that “In certain
circumstances, particularly those
involving complicated financial
transactions such as derivatives ….
the complexity of the transaction is
such that the customer takes the
risk upon himself”. In light of the
current stringent FSA rules relating
to hedging and derivative
transactions, a banker requires to
satisfy himself that his customer was
an experienced professional
investor before
he could be safe
in assuming that
a customer
could take a risk
of this kind
upon himself,
w i t h o u t
adequate
advice.
There are also
useful chapters
dealing with the
relationship
between a Bank and its Customers
and the Banker-Customer contract
as well as some useful information
on a range of other everyday
banking transactions.
One somewhat disconcerting
feature of the book is the way in
which related topics appear under
apparently unrelated headings, e.g.
in the chapter entitled “Types of
Account” there is a section dealing
with Arrestment of Bank Accounts.
Elsewhere, the topic of inhibitions
appears under the chapter headed
“Security for Loans and their
Documentation”.
Without detracting from the book’s
value as a useful first point of
reference to the subject there are a
few areas where minor errors have
not been picked up in the proof
read. For example:
The increase in the level of loans
affected by the Consumer Credit
Act from £15,000 to £25,000 has
not been identified.
Reference is made to the Solicitors
Indemnity Fund rather than its
Scottish equivalent of the Master
Policy and Guarantee Fund.
In the section dealing with
overdrafts it is suggested that
sometimes the rate is a certain
number of percentage points above
the “LIBOR” (London Inter-Bank
Offered Rate). Experienced banking
lawyers will recognise that LIBOR
related rates are not normally
available on overdrafts and are
generally confined to term lending
facilities.
The paragraphs dealing with the
vexed question of ‘Guarantees
given under pressure’ and The need
for Independent Advice’ was
unfortunately written before the
landmark judgment issued by the
House of Lords in Royal Bank of
Scotland v Etridge.While Mr Grier
highlights the key pitfalls to be
avoided practitioners will need to
pay heed to the more detailed
guidance provided by their
Lordships in the case of Etridge.
Derek Arnott

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
Tel: 0141 338 2352 Fax: 0141 338 2973
E-mail: alistair.bonnington@bbc.co.uk
BOOK REVIEW BOOK REVIEW BOOK REVIEW BOOK REVIEW
Journal
RESTORATIVE JUSTICE IDEAS,
values, debates
THIS
book, while modestly claiming to be an introductory text, actually provides an excellent overview of recent claims that restorative
justice might provide an alternative to current responses to crime. One of the book’s strengths is that Gerry Johnstone, while
clearly having some sympathy with the aims and ideals of the restorative justice ‘movement’, takes a commendably disinterested and ultimately very
well-balanced approach to the subject. Thus he neither proselytises, like many recent writers who attempt, often in an irritatingly worthy manner
and with unrealistic idealism, to convert unbelievers to the merits of restorative justice. Nor is he haughtily dismissive of the lessons
which might be learnt from this approach, unlike some over-critical academics and many jaundiced practitioners.
Johnstone writes extremely
well. His summaries of the
work of the leading theorists
and their critics are models of
clarity. And his own thoughts
and arguments are easy to
follow. For those unfamiliar
with the ‘gurus’ of restorative
justice – for instance,
Braithwaite, Christie, and
Zehr – this is an excellent
place to start, and even to
finish for those seeking no
more than an informative and comprehensive
tour around the issues raised by restorative
justice. The positions of all the major contributors
to the field are fairly put, as are the arguments
of their opponents, and Johnstone then
outlines his own views in a thoughtful and
constructively critical fashion. Chapter 3, for
instance, summarises the gist of Braithwaites’s
seminal work, Crime, Shame and Reintegrations
Gerry Johnstone
Willan Publishing
ISBN 1 903240 425
Price £16.99
(1989), his subsequent
r e s p o n s e t o
criticisms that his ‘shaming’
strategy cannot work in most
of the modern western world
because there is insufficient
sense of community, and
Johnstone’s view (p 54ff) that
Braithwaite’s response to his
critics is unsatisfactory.
The principal strength of the
book is the way in which its
author pulls together and
organises the disparate strands of thought which
make up the restorative justice movement into a
coherent whole. Each aspect of the movement is
carefully scrutinised both for its internal cogency
and in terms of its coherence with other facets of
the movement. While some of the inconsistencies
are already well documented, for instance,
the tension between those pushing ‘offenders’
rehabilitation’ and those espousing ‘victims’
reparation’, others are not. For example, I found
particularly fascinating Johnstone’s treatment in
Chapter 7 of the differences between those
advocates of restorative justice who are seeking
to help individual victims and offenders and those
who are attempting to use these individuals, in a
rather instrumental way, to re-create a sense of
community and build a better society.
Thus, for anyone who wants an introduction to
current thinking about restorative justice, this
book is by far the best I have come across. It is
extremely assessable, admirably fair-minded and
covers all the major issues without getting
bogged down in detail. For those who already
have some familiarity with the area, this text
should also be essential reading, both for its
up-to-date synthesis of the literature and
Johnstone’s own thoughtful critique of the debate
thus far.
Peter Duff

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