EXCHANGING anecdotes in the agents' rooms of the land, it's not that unusual to hear the rueful line: "This would be a great job if it wasn't for the clients." It's meant – and understood – to be a joke, of course.
Occasionally, it becomes painfully serious, when client and lawyer become adversaries and disappointed client expectations become accusations that the lawyer has been incompetent, negligent or even dishonest. Sometimes that is true.
On those occas
ions, the aggrieved client should have any financial losses made good and compensation offered.
All advocates as individuals are required to take out professional indemnity insurance, and the Law Society of Scotland administers the Master Policy and Guarantee Fund on a profession-wide basis.
At present, the Royal & Sun Alliance insurance company is the backstop for 90 per cent of the advocates and all of the solicitors in Scotland.
The public at large most likely sees reference to the Master Policy and Guarantee Fund in the last line of a newspaper story about a solicitor's misdeeds. That line will also include a Law Society of Scotland statement that the wronged client was reimbursed for his or her losses.
The Law Society's annual report revealed that the guarantee fund paid out £77,000 in 2007-8, and 18 new claims against eight firms were lodged for investigation.
Even for the majority of solicitors whose only experience of the policy and fund is what they have to contribute each year, the mechanics are something of a mystery, akin to Lord Palmerston's description of the Schleswig-Holstein Question – very important but only three people have ever understood it: one is dead, one is mad and the other has been forgotten. But now, some help is on the way.
When the Scottish Legal Complaints Commission (SLCC) opened for business last October, it took over statutory responsibility for oversight of the Master Policy and Guarantee Fund and gave an early undertaking that it would commission research into their purpose and function and that of the professional indemnity arrangements for members of the Faculty of Advocates.
The research remit envisaged face-to-face interviews with people who had experienced either of the indemnity schemes, as well as conducting focus groups within the professions and a literature review comparing the Scottish arrangements with those in other jurisdictions.
Eileen Masterman, SLCC director, says: "We needed to find out more about the way they work in terms of their contribution to an effective complaints procedure.
"From the client's perspective, we know it's a double distress experience. First, they feel bruised by the initial contact with the solicitor that they feel went wrong. But secondly they may be bruised again if the investigation and resolution doesn't do what they expected."
The contract was awarded in April 2009 to Professor Frank Stephen and Dr Angela Melville of the University of Manchester Law School. Prof Stephen is an economist by trade and was professor of economics at Strathclyde University from 1990 until 2005.
He also acted as an adviser to the justice 1 committee of the Scottish Parliament when it carried out its inquiry into legal aid and access to justice in 2000-1, and was a member of the research working group established by the then Scottish Executive's justice department to examine "competition and regulation in Scottish legal services markets" during 2004-5.
Angela Melville is a sociologist and says her particular expertise is in qualitative interviewing.
"We have become a pretty good team," she says. "Frank crunches the numbers while I draw out themes through interviews with people who have had experience of the Master Policy or Guarantee Fund, either as complainer or as solicitor."
They posted a call for interviewees on the SLCC website, with the suggestion that interviews could be conducted by phone and might last 40 minutes. Dr Melville laughs: "I'm aware that when you are interviewing someone about issues that have become central to their life, you can't deal with it on the phone or look at your watch after 40 minutes and say time's up. That's not appropriate.
"It often happens that the initial problem seems to be relatively minor, but the story then gets very complicated. You have to hear it all to understand what the issues became."
She has interviewed a dozen clients from various parts of Scotland, and several of them face to face. Her longest interview so far lasted six hours.
The original intention to meet with solicitors in focus groups also had to be modified. "You learn quickly as a researcher that you are the least important entry in the diary of a busy professional," she says. "Solicitors who have never experienced a claim against them have only a vague idea of the issues. On the other hand, solicitors who have had to deal with claims may not be happy to discuss them in front of their professional colleagues."
So, solicitor input became a mix of interviews and focus groups.
The concept of a literature review implies the existence of literature on the subject, but there doesn't appear to be much for the team to consider.
Dr Melville says the Office of Fair Trading and Consumer Focus Scotland have touched briefly on the workings of the Master Policy and Guarantee Fund as presently operated. "We have been looking at the approach of other jurisdictions," she says.
"Hong Kong used to have a system quite similar to Scotland but changed it to be more in line with England. England has a list of approved insurers but not a profession-wide approach. It's presently a hot topic in New South Wales and there is some interesting data recently published in Ontario."
The deadline for submitting their report is fast approaching – the SLCC expect it by the end of the month.
And what then? Dr Melville says the purpose of the project was to give the SLCC an insight into how the indemnity systems actually work and how their operations are perceived.
"We weren't commissioned to make recommendations as such," she says. "But both of us are fairly strong-minded, independent individuals, so if there is anything that needs to be reported, we'll do so."
