Last week Firm columnist and Law Society Vice President Austin Lafferty published a blog on this site entitled "The ABS Tsunami"; Law Society Council member Walter Semple has written this letter to Austin in response. It is published here in full.

Dear Vice President,

At last an office bearer of the Law Society of Scotland has recognised that the ABS threat has the potential, to use your expression, to decimate the core work streams of many law firms. It's a bit late. This result was both predictable and predicted by those who opposed the introduction of ABS.

You say that you are not making a political point but ask the reader to remember that governments here and down south demanded these changes, so it is no use crying about the injustice of the Law Society of Scotland position. This is nonsense.

The Scottish Government Policy Memorandum on the Legal Services (Scotland) Bill published in September 2009 recorded (at paragraphs 20 to 30) what happened. It asked the profession to respond to the challenge of achieving change. The Cabinet Secretary for Justice set out the Scottish Government's view that, although it did not agree that the Scottish legal system needed the radical changes being implemented in England and Wales, there was a need for reform. He challenged the profession to take a lead in identifying how to move forward. In a policy memorandum issued in December 2007 a Scottish Government policy statement had suggested (at paragraph 26) four possible models for third party entry to the profession and multi-disciplinary practices.

The Law Society Council responded in its paper published in April 2008: "Delivering Scottish Legal Services". It saw no objection of principle to any of the four models provided that an appropriate system of regulation was applied. This resulted in an unprecedented division of the profession. The Murrayfield SGM in 2008 was adjourned by the then President when it became clear that members of the Society would not support Council policy. Council policy was approved at a later SGM by a small margin after the Council had fought hard to obtain proxies to support its policy.

The evidence shows that our Council and its office bearers were responsible for sponsoring the adoption of ABS according to the English model. The result, according to you, will be that the core work streams of many firms may be decimated. The Scottish Government did not insist on this. It was the policy of our own Council. Solicitors in Northern Ireland resisted the change. It has not been applied there.

Mr Vice President, you and your predecessors have been presiding over a potential catastrophe for many solicitors in Scotland which was entirely avoidable. Now you say it was forced on us. It was not.

Your blog does not mention the public interest or the potential effect on the administration of justice. This is a far more important matter. The changes in the Legal Services legislation now require solicitors to act independently. Previously the requirement was that solicitors be independent. The two are not the same. This created a contradiction for “in-house” lawyers who by definition could not be independent of their only client. They could only be required to act independently. Their interpretation of “independence” now also prevails for solicitors in Scotland who offer services to the public.

This change will compromise the independence of solicitors who offer services to the public. External owners of legal service providers will not be directly bound by solicitors’ ethics. They will be motivated only by commercial interests.

The quality of lawyers’ independence was the central issue in the cases of AM&S and Akzo Nobel decided by the European Court of Justice. These decisions refused to accept that acting independently and being independent were the same. Legal professions in Europe and the USA have insisted that their members retain their independence in the sense of those decisions. It is entirely to be expected that employed lawyers have reacted against them.

The sponsorship of this ABS legislation by the Council of the Law Society has changed the ethics of the Scottish solicitors’ profession. At the same time, as you point out, it may inflict heavy damage on its members’ interests.

You should not be surprised if the independent solicitors’ profession loses confidence in the Council of the Law Society of Scotland, as presently constituted, as promoter of its interests and the related public interest.

Walter Semple