By Darren Murdoch, trainee solicitor, Waddell & Mackintosh Solicitors, Troon.

“The first thing we do, let’s kill all the lawyers” said Dick the Butcher in Shakespeare’s Henry VI, Part II, act IV, Scene II. And, to a certain degree, the same sentiments may have run through the minds of new clients of the firm in which I am employed as a trainee solicitor; hereinafter the new clients shall be referred to as Mr. and Mrs. Misled.

Firstly, fear not the solicitors amongst you, for neither Mr. nor Mrs. Misled advocate the summary execution of lawyers or solicitors; however, they would both very much like to see greater regulation of the right to call one’s self a lawyer.

Whilst I would never proclaim to be in the same league as Shakespeare, I would like to welcome you to my account of how Mr. and Mrs. Misled were played.

Act I, Scene I: The Prelude.

On or around the month of June 2010 a representative from a certain limited liability company (the Company) called into the workplace of Mr. Misled, offering him expert advice on a will and a power of attorney. And so begins the masquerades ball with Mr. Misled being led on a merry dance to the tune of around £800 for the provision of wills and POAs, for himself and his wife, which were all to be drafted by a professional practitioner, fully affiliated to the Society of Will Writers. After the dance was over Mr. Misled was left in blissful ignorance believing his will and POA had been drafted, to his requirements, by a qualified solicitor, as were many others within the workplace of our new clients. Mr. Misled may have been reassured by the fact that the Company marketed themselves on their webpage as “The largest Firm of Estate Planning Practitioners throughout England, Scotland and Wales.”

Act I, Scene II: The telephone call.

We move forward six years and Mr. Misled receives a call from his old dance partner informing him that the Company had entered into voluntary liquidation. Consequently, the protagonist invited Mr. and Mrs. Misled back on to the dance floor, stating that there may be issues with their current wills and POAs, and recommending that they arrange an appointment with ilaws Scotland to have matters reviewed. Obviously, there was no mention of any insurance / master policy which would help alleviate the cost of rectifying any mistakes.

Act II, Scene I: Who’s that sitting behind the desk, a lawyer or a solicitor?

Mr. Misled enters my firm’s office and, following the initial exchange of pleasantries, Mr. Misled proceeds to ask me “Is a lawyer the same as a solicitor”? Tempted as I may have been, “To be or not to be, that is the question,” was not my response. I informed Mr. Misled there was nothing prohibiting his former dance partner form holding himself or other representatives from the Company from holding themselves out as lawyers; however, I explained he could not, in accordance with the Solicitors (Scotland) Act 1980 section 31, call himself a solicitor. I explained further that if he were to hold himself out as a solicitor then he would be committing a criminal offence.

Act II, Scene II. Enter the props.

Mr. Misled produces a copy of his own and Mrs. Misled’s will, together with each of their respective POAs. The wills were accompanied with rather impressive looking certificates. My personal belief is that the certificates were issued as a plot to distract the testators from the contents of their wills. Each will contained an improper liferent, over the respective half-shares of Mr. and Mrs. Misled’s heritable property. This was despite the fact that Mr. and Mrs. Misled had wished to create real rights, which could only be revoked by themselves or under a POA (should they lose capacity) as opposed to one which could be revoked by a trustee.

I hoped to be more impressed by the POA, but sadly not. There was no authority within the POA for the attorney to revoke the liferent, should either Mr. or Mrs. Misled lose capacity. Neither was I reassured when I read the POA document, which provided the attorney with the right to convey heritable property “whether situated.”

Act II, Scene III. Enter the stage the “Most outstanding Law Firm of 2016- the UK.”

Mr. Misled, informed me of the telephone call from his old dancing partner, advising him of the liquidation of the Company. Mr. Misled, having suspicions as to the honourable intentions of his dance partner, sought my advice. Being an inquisitive individual, I visited the website of ilaws Scotland and I was impressed by the seal on the home page, which is reminiscent of a Crown seal (I wondered as to the thoughts of the Lord Lyon and whether he would be as impressed as I was).

Furthermore, after reading that ilaws Scotland were awarded “Most outstanding Law Firm of 2016 –the UK,” by that prestigious publication Wealth & Finance International, I thought it only a matter of time until they appeared in the Legal 500.

Act II, Scene IV. The temptation was too great!

Surely no self-respecting trainee solicitor could have resisted the temptation to call ilaws Scotland, and, alas, for me the temptation was too great.

“Hello you are through to ilaws Scotland how can I help?

‘I am interested in obtaining further information concerning your services; if an individual gives your firm instruction for a will and POA, would the will and POA be drafted by a solicitor?’

“Please wait and I shall find out. (I duly waited). I am sorry but I cannot answer that question just now, can I take your number and have someone call you back later?”

Mr. Misled comments that he is somewhat surprised that the secretary was unaware as to whether she was employed by a solicitor. I concur. Thereafter, upon receiving my advice to consider a new will and POA, Mr. Misled departs the stage.

Act III, Scene I. A crowded dancefloor.

After receiving instruction I prepare new draft wills. Mr. and Mrs. Misled attend my firm’s office in order to have their principal wills signed. During the meeting both Mr. and Mrs. Misled express their dissatisfaction that more is not done to prevent individuals and firms holding themselves out as lawyers, when they are not entitled to call themselves solicitors.

I attempt to console Mr & Mrs Misled, informing them they are not the first, nor shall they be the last, to give instruction to someone they thought was a solicitor who was acting under misleading pretensions. Whilst they may or may not have appreciated my sympathetic comment they did state they “wished further action and a solution to the problem.”

Moreover, Mr & Mrs Misled could easily have been led astray once more by another organisation which is based in Troon by the Other Company (I give them their due, in that they do not claim to be the law firm of the year) and on their website they state: “…did you know that if you don’t have a Will to ensure your wishes are carried out, a Law from 1925 decides who inherits your possessions after you die;” perhaps they have not yet had notice of the memo in respect of the Succession (Scotland) Act 1964, or perhaps they are geographically challenged as they also offer “A Lasting Power of Attorney.”

I am aware of individuals who have used the services of this firm thinking they were instructing a solicitor, and there is certainly no declaration within their website which clarifies the fact that there is no qualified solicitor within the Other Company or within a certain limited liability financial advisor to whom they claim to “act as an introducer.”

Conclusion

Thank you for paying attention to this sorry tale of woe. Prior to departing the stage I would like to add my own cautionary note for the future. While we may be approaching an era of alternative business structures I feel it is imperative that we get our house in order. Thus, I advocate an amendment to section 31 of the Solicitors (Scotland) Act 1980. I feel that the Act should be amended to prohibit an individual from creating in the mind of reasonable person an understanding that that individual is duly qualified to act as a solicitor or a notary public when that individual is not on the role of solicitors, and to prohibit an organisation from claiming to be a law firm when there is no solicitor ownership of the firm. I am not advocating that Wills, Powers of Attorneys and Trusts be reserved for solicitors only.

However, I believe that if non-solicitors are seeking to offer legal services to the general public then they should always make it clear from the outset that they are not qualified solicitors, or lawyers, nor are they a law firm. As matters presently stand too many members of the general public are falling into the trap of believing they are instructing a solicitor when they are clearly being deceived. Finally, to the Scottish Government, I pass the quill.