In a wide ranging critique of the tensions contained in Section 1 of the Solicitors(Scotland) Act 1980, David Flint of MacRoberts explains why the representational role of the Law Society required to be reassessed.

As many solicitors will be aware, for a little time now we have been endeavouring to secure more accountability and better value from the Law Society.

This has come to a head with Motions for both the AGM and the SGM this year, which whilst unsuccessful, were instrumental in having the Law Society reduce the Practising Certificate fee by £100.

It became clear as part of this process that the Executive and Council of the Law Society are inherently incapable of accepting criticism and considering what is in the interests of the members of the profession (as opposed to “Civic Scotland”). We have been very unfortunate that at this critical time in the development of the profession we have had a series of Office Bearers who, for various reasons, have not been as robust in their support and promotion of the interests of the profession as many would have expected and it is clear that the present thrust of the Law Society is to provide more remedies, powers and strengths to the consumer lobby.

Allied to these internal failings in the Law Society, we have had a Scottish government whose political leanings are towards greater regulation and central control of all aspects of society including, regrettably, the legal profession.

The Law Society have signally failed to win (or, arguably, make) the argument that a vibrant and independent legal community is a necessary foil in a mature democracy to the overwhelming power of the state. Whilst within MacRoberts, we do not have a direct financial interest in legal aid and the issues of individual representation, we all recognise the importance of a system which supports the more vulnerable and less fortunate in our society. The fact that successive Scottish governments have used the legal aid system as a means of reducing expenditure means that in many cases hourly rates have not increased materially for over a decade. I doubt that many of us relish working at an hourly rate of £54.80.

Criminal representation does remain possible on legal aid rates, perhaps due to volume, perhaps to contributions from other sources; in relation to civil matters, it is virtually impossible to find anyone prepared to conduct anything other than family matters on the basis of civil legal aid rates. If as a society, we believe that access to justice is important, should society not recognise that the best will not be attracted to areas of work which after overheads are deducted are little more than minimum wage? One must ask why, given these facts and the fact that hourly rates have changed little in 15 years, the Law Society has not done anything to lobby public support?

Perhaps the reasons behind this are as set out so eloquently in the comments from John McGovern of the GBA and from Robert Pirrie of the WS Society; the inherent conflict between the Society’s role as professional body for solicitors and also as the entity entrusted with an apparent consumer facing function.

Despite the inherent conflict of interest, much of the difficulty may lie not in the strictures of the statute so much as in the way that the Society has chosen to interpret those provisions. Section 1 of the Solicitors (Scotland) Act 1980 provides: -

The object of the Society shall include the promotion of—

(a) the interests of the solicitors’ profession in Scotland; and
(b) the interests of the public in relation to that profession.

This does not mean that the Society is required or needs to be a consumer champion, always taking the side of the public against its members or requiring it to favour the public against the solicitor. In my interpretation of that section (and in accordance with what is generally accepted as being one of the fundamental characteristics of a profession) the Law Society is merely required to put in place such rules and procedures as are necessary to take steps to ensure that any behaviour which is not in keeping with the standards of conduct and behaviour expected of a professional can be regulated, controlled and eliminated. The wording is neutral as to how this is required to be achieved. There is certainly, to date, no requirement that the public should be any part (let alone a major part) of that regulatory process.

An argument can certainly be advanced that in any organisation there may be merit in wise counsel being sought from those outside the organisation or the profession involved who may be able to offer their experience to assist in the fulfilment of the organisation’s purposes. Indeed, many law firms have found it advantageous to employ accountants, surveyors, estate agents and the like to afford them an expertise which they do not hold themselves. However, at the end of the day, the responsibility for all these individuals lies with the solicitors firm.

A cursory review of the process by which the Scottish government has embarked upon the present review of legal services indicates a clear bias against the legal profession; perhaps drawn from recent experiences in which lawyers have been successful, whether under human rights or procurement, in challenging successfully some of the abuses of government. Government doesn’t like being told that it has “got it wrong” and many might see the present attempt to rein in the profession as being the inevitable backlash of a party who lost the game so he changes the rules.

The danger of this process is that those who lobby for change are inevitably those who, for whatever reason, believe that they have been failed by the system; hence we see organisations such as SACL being given equal, or greater, time before legislative committees with the profession itself on the basis that anything said by a lawyer will merely be seen as self-serving. For politicians, it is an unpalatable thought that perhaps sometimes people have to be disappointed; that in any adversarial system there must inevitably be losers as well as winners; for every disappointed litigant, there will be one who is wholly satisfied with the result. It is impossible to devise a system whereby both parties in a dispute can end up as 100% victors.

Our legal system and the values which that underpins have been under sustained attack for some considerable time; for politicians legislative change is always more attention grabbing than actually providing adequate resources to implement and enforce existing rules; but there is always the perceived pressure from an ill informed public to do something; to make something expressly illegal, albeit that it probably already is. There is no merit in introducing new offences, of increasing potential penalties if that is not accompanied by adequate resources to detect, prosecute and penalise those offences. Hardly a day passes without some story of apparently deficient resources or of such resources as do exist being hindered due to an excess of rules, real or imagined, or red tape or health and safety issues.

All of these are real issues, not just for solicitors and the wider legal profession but for society as a whole. These are the real arguments that a truly representative and effective “Law Society” would be advancing, not only in support of their obligations to promote the interests of solicitors but also in the wider societal context. The purposes of section 1 need not be at odds with each other; indeed I would argue strongly that they are complementary to each other; society needs lawyers as much as lawyers need society.

It is in that context that many believe that the present regime has failed in both its purposes; much has changed in the last 60 years since the Law Society was established. Then the purposes were not seen as opposites, but with the passing of time the two purposes have been seen by all but the Law Society as creating an insurmountable conflict of interests as the “consumer” part of the interest has grown in stature and importance and traditional areas of society are being challenged to justify their existence or face enforced change.

Not that the profession is afraid of change; solicitors require to face and deal with change on a daily basis; law is a moving target with a vast amount of new information, from a number of sources having to be found, digested and assimilated on a daily basis in order to meet professional standards. Change is disruptive, but it is also stimulating and a necessary part of a vibrant profession. All that solicitors wish to achieve, and what they are, I believe, entitled to expect is a reasonably level playing field with a referee who can be expected to apply the rules fairly and equally to all players. Continuing the sporting analogy, they are also entitled to expect that the second in their corner will be fighting for them, arguing their case and only throwing in the towel when the fight is over; and then, seeking an early rematch.

We must all accept that in a battle with government, government will always win eventually – as they have the ability to change the rules to suit; however, that does not mean that an attempt should not be made to prolong that battle to allow an opportunity for solicitors to point out why the proposals are wrong; why society should be concerned and, finally and perhaps most difficultly, to show why their views are not based solely on self interest but in a wider regard to the public interest which interest is, in some form, enshrined in the 1980 Act.

Over the last month or so the Law Society has been embarked upon a “consultation” in relation to the structure of its Council. This consultation which passed largely unnoticed by the profession – perhaps that was how it was intended to pass – has now closed. The comments by John McGovern, the President of the Glasgow Bar Association succinctly set out the arguments why these changes are detrimental to justice and the interests of the public (let alone the interests of solicitors). Why then has the Society not been making more fuss about this consultation; why has it not sought to lobby solicitors to argue against changes which will change forever the fundamental relationship between government and an independent legal profession.

Perhaps it really is hung up on this conflict in Section1, terrified to oppose lest it incur the perceived wrath of the consumer lobby. Perhaps as John McGovern and Robert Pirrie suggest, it is now time to look again at that inherent conflict; to separate the two functions; to provide a separation of regulation and representation as has been done in most other jurisdictions. Indeed in some jurisdictions there is a view that requiring membership of a professional body in order to carry out one’s trade or profession could give rise to a challenge under Article 11 of the European Human Rights Convention.

It is unlikely that the Law Society would make these challenges, as it quite likes this statutory status quo; perhaps it has doubts whether given a choice, many in the profession would see it as providing value for money to solicitors in these difficult times. After all, on its own figures a third of expenditure is on regulation, which means that two-thirds must be for something else. If one had a choice, is that how one would choose to expend that money?

As others have sought to enter the legal advice space, and whatever one’s inherent dislike and foreboding of more competition, it is a fact that competition in legal services is with us all already. The large commercial firms compete and the smaller firms compete. They may not always compete in the same space at the same time, but the large firms of today were at some time the small firms of yesteryear; they were simply successful, which is the purpose of competition. I don’t personally object to Tesco providing legal services (although I doubt I would use them) provided that the competition is fair; that the public understand the differences in services; and that the playing field is such that all will be faced with the same advantages or disadvantages.

Regrettably the Law Society has not grasped this opportunity to fight the solicitors’ corner; to explain clearly and impartially why if society wishes to widen the pool of legal information and service availability what implications that may have for the public; to argue why solicitors are different; why they are a preferable choice. How does that fit in with the purposes of Section 1(a)?

It is for that reason, that I believe that there needs to be a fundamental rethink of the nature of the Law Society; to separate its apparently conflicting roles; to allow a split between regulation and representation. Much regulation has already been ceded to SLCC, it would not take much for the remainder to be passed over also. I do not accept the oft made argument from the Law Society Executive that whilst the present situation is not perfect the alternative would be worse; at least in a new system there would be someone fighting our corner!

For the last 9 months or so, we have been in a dialogue with the Glasgow Bar Association in relation to change and have found much common ground despite our generally different markets. Whilst traditionally (and presently) seen as a thorn in the side of the Law Society there is no doubt that as an organisation it is focussed on representing its members and lobbying against actions or inactions which it perceives as being detrimental to such fundamental issues as access to justice and the rights of the individual. Whilst one might not agree with all that they have done, and leaving aside the fact that they, as with any organisation, have their “characters”, they are keen to widen their base within the profession outwith the traditional area of the criminal practitioner.

In discussions it is clear that they would very much welcome the involvement of MacRoberts and other commercial firms with an interest in true independence and representation, either en bloc or as individuals within the Glasgow Bar Association to strengthen their position in dialogue with government and to widen their area of expertise.

There are other organisations out there of which many firms or some partners thereof are members; included in these would be the Royal Faculty of Procurators, Scottish Law Agents Society, WS Society. It is interesting to note that across such a diverse spectrum of the legal profession many are reaching a similar view

The debate is ongoing; the profession owes it to itself and to the public to participate, to argue and to fight for what is right; it is clear that the Law Society not only lacks the will to win, it has lost the will to fight.