The WS Society and the Glasgow Bar Association both called for the Law Society's dual representative and regulatory roles to be overhauled ahead of the introduction of the Legal Services Bill. The GBA's new President John McGovern, writing exclusively for the Firm, delves deeper and explains his concerns over the insidious rise of government control of the profession.

It may have escaped your notice, but the Law Society of Scotland is undergoing major change. Notice of the consultation period for its new constitution was posted on its website on 12 October 2009 and the consultation period ended on 5 November. In neither of October's nor November's Journal was the consultation mentioned. Nowhere. You probably missed it. I nearly did.

In March last year at a special meeting of the Council of the LSS, it was 'unanimously agreed' to establish a  'Board' which is now 'the principal decision making body' of the Law Society. I had to dig deep into the Law Society website to get this information. It was worth the effort though, as it radically alters the shape of our profession's future representation.

The Council, according to the LSS, now has a 'senatorial' role, overseeing strategy but not making policy decisions. So, the membership of the LSS, that is to say, you and I, can now only elect representatives who will oversee strategy, but not make decisions.

If that doesn't seem right, then you should read the Legal Services (Scotland) Bill published on 30 September. It was the pending publication of this Bill that precipitated the Law Society's constitutional changes. The Bill has been 'welcomed' by the Society as meeting its 'agenda for change'. Section 92 of the Bill allows the Scottish Ministers to appoint whatever number of non solicitor members to the Council of the Law Society as is 'necessary' by statutory instrument. I don't remember that debate.

With the approval of the Scottish Government, the Council of the Law Society is proposing to increase non-solicitor Council membership to 20% of its number. At the moment, Council comprises 44 elected solicitor members. It also has four members of the public who 'observe' but do not participate, vote or contribute. The LSS proposes a new system for the part election/part appointment of a bigger Council of 60. It now proposes that 35 elected solicitor members will comprise 58% of Council and 12 solicitors not elected by members will be 'appointed' to Council from sectors which will include COPFS, the Scottish Government and inevitably SLAB. The remaining other 12 members of Council will be unelected, non-solicitor members with full participatory and voting rights. Proportionately, therefore, the number of solicitors elected onto Council by LSS members will have fallen by 42%, whilst the number of participatory, unelected non-solicitor members of Council (who do not pay for the LSS) will have increased by more than 1200%.  The profession will therefore, according to these proposals, be represented by a Council, 42% of which is unelected and 20% of which does not enjoy membership of the profession. Further, s92  of the Bill allows that number of non-solicitor members to increase at the behest of the Scottish ministers (does anyone seriously believe that the number of non-solicitor members will ever decrease?). Nowhere is there a safeguard preventing, for example, non-solicitor members of Council reaching more than 50%. That decision is within the command of the Scottish ministers, who need only 'consult' with Council. I don't remember that debate either.

One might have some understanding of this shift in balance towards non-solicitors were it the case that Council was solely responsible for the regulation of the profession and its new 'legal service providers'. However, Council's regulatory functions are to be 'exercised by a regulatory committee', at least 50% of which must be comprised of non-solicitors. That figure, too, can increase on the say-so of the Scottish ministers who need only 'consult' with the Council. Effectively, there is now Government control of the once much respected, tenaciously independent and democratically constituted Council of the Law Society of Scotland. It seems to me that the family silver has been sold.

The Law Society of Scotland is 60 now. The halcyon days, when it was 'never too early to call your solicitor', have long gone. That confidently marketed statement, although aesthetically unrewarding, was robust enough to articulate a profession willing to stand up for itself and let the public know what we did, and why we did it best. Now, to understand much of the PR from Drumsheugh Gardens, a degree in amateur corporate euphemism is required. Respect for the profession has deteriorated to the extent that Government control of our own regulation and representation is about to be placed on the statute book.

The seeds of all of this were planted within s1 of the Solicitors (Scotland) Act 1980. I have always had difficulty reconciling the conflict of interests that section presents. How can the Law Society have as a dual 'object' the 'promotion of the interests of the solicitors' profession in Scotland' whilst, simultaneously, 'promoting the interests of the public in relation to that profession'?  It is a conflict that most typically manifests itself when, for example, a member of the public or former client complains to the Law Society about a solicitor. Often, seriously defamatory allegations against a solicitor can be made on the basis of an ex parte, uncorroborated statement from the complainant. The solicitor, stressed and worried by the severity of these allegations, turns to the LSS, the representative body, for support, only to be told that it cannot assist, as it is investigating the complaint. The solicitor is exposed. Personally, I always reassured myself that the Law Society was an institution that, ultimately, favoured the solicitors that it represented. Unfortunately, however, this was a view also shared by the public, rightly unconvinced, given that the body to which its members were complaining had, as its 'object', the 'promotion of the solicitors' profession in Scotland'.

The politicians and the public have been griping about legal monopolies and 'closed shops' ever since. Change was inevitable. So, having agreed to open the market to non-solicitors, or legal service providers, one would presume that the profession has at least, by way of consideration, had the conflict within s1 of the 1980 Act resolved to its satisfaction. Surely now the solicitor can expect LSS support or protection when the conduct complaint arrives in the post? Sorry, no. The contrary and complaining former client will be afforded even more credence as a result of this Bill: twelve non-solicitors will be on Council and half the 'regulatory committee' will be the public itself. The poor solicitor being complained about will still not enjoy any LSS support: still exposed. The conflict which s1 of the 1980 Act presents has been certainly been resolved: in favour of the public.

ÊMoreover, it is my view that s92 creates an even bigger conflict than s1 of the 1980 Act. How can the Law Society properly represent the profession, or promote its interests, in negotiations with the Government, when that same Government can determine who goes onto the Council of the Law Society? The stick of more non-solicitor members on Council must inevitably mean that any negotiations with the Government are conducted cap in hand, with the other tied behind the back. Control has been lost and with loss of control comes loss of power.

The constitutional status of the 'Board' that the Law Society agreed to create, at its special Council meeting in March, is unclear. There is nothing I can find in the constitution of the Law Society that allows the creation of this directly unelected yet, by its own description, 'major policy making Board'. It's impossible to tell from the Law Society's own website actually why this ÒBoardÓ has been established other than Ian Smart saying that the new 'Board' allows the LSS to establish a 'clear path set, common understanding of the future and focus on the needs of the profession and the public'. (Your guess is as good as mine!) The 'Board' is reminiscent of a regime on the run: scared and cornered, its 'senatorial Council' undermined.

I am now of the view that if solicitors are to have any control over their profession in the future, there has to be a Solicitors' Representative Association, independent of the Law Society. According to its own annual report, the LSS spends 40% of its revenue on 'representation'. By my calculations, that amounts to approximately £3.5million per year. An independent Solicitors' Representative Association could comfortably operate, in my view, for considerably less than that.

The operating model of the LSS, whereby dozens of solicitors are expected to profitably run their own firms, but find the time to adequately and diligently represent the profession for next to nothing, is a relic of the last century. When nothing more than the legislation that the Scottish Parliament enacts is considered (the Criminal Justice and Licensing Bill which has just passed committee stage at Holyrood, is an enormous document which would tax the response time of a full time solicitor for weeks) it is apparent that a lean, professionally organised, full time, representative body is required to protect, represent and promote the interests of the profession.

Dozens of solicitors sacrificing time and turnover for little more than the potential of patronage is not a framework that can adequately serve the profession in a complex, congested, ABS market place.

In England, under the terms of the Legal Services Act 2007, the conflicting 'objects' of the Law Society were separated in anticipation of the legal marketplace opening to non-solicitors, and there is now a Solicitors Regulatory Authority, independent of the Law Society. Its Board is split roughly two-thirds lawyers and one-third members of the public (compare that with our own 50/50 regulatory split). The major difference, however, is that the SRA in England regulates, but does not represent, the profession. So, apart from having their own regulatory body, which has proportionately more solicitors than ours, English solicitors also have their own independent representative body made up entirely of solicitors. Its name?  The Law Society. What else?

A browse of the English Law Society's website shows how a robust organisation, exclusively operated by solicitors, can effectively represent its members.  We, in Scotland, are in lose-lose territory. By trying to balance the interests of the public and the profession, the credibility and control of the LSS have been lost.

In other jurisdictions, such as much of the United States, Switzerland, France and New Zealand membership of the Law Society, or its equivalent, is not compulsory for solicitors. Indeed, in Denmark, the Law Society took the view in 2006 that compulsory membership was a breach of the Article 11 rights of freedom of association for solicitors.  No other democratic country has a Law Society, or solicitors' representative body, with such levels of Government and public interference. That is because Scotland is the only jurisdiction where solicitors and non-solicitor 'legal service providers' will now compete in the same market place, but where both are represented and regulated by the same organisation, namely the Law Society. When that fact is very carefully considered, one then has to ask oneself: is this about what is best for the profession? Or is this about what is best for the institution of the LSS itself?

Whichever, in my view, the situation is unsustainable. And not just for the reasons mentioned. The market place itself is going to be open to conflict through the application of different ethics, codes and professional practices (or 'non-professional' practices as the case may be). 

The independence of the profession has been lost with this Bill. It is not, in my view, appropriate for the LSS to continue to represent solicitors when it has ceded control of its Council to the Government, and almost halved the democratic mandate of the profession.

Why should solicitors elect only 58 eight per cent of their representative body? Solicitors, and solicitors only, should represent the professional interests of solicitors.

The establishment of a new Solicitors' Representative Association would allow the profession to regain control of its own representation. In the period since the publication of this Bill, until the date when this article was trailed online (a period of over two months), no one at the Law Society even mentioned that this Bill, and s92, threatens the independence of the profession.

Only since a precis of this article was posted on this magazine's website has the Law Society made any mention of the independence of the profession being 'maintained'. Draw your own conclusions.

In its 60th year, the Law Society has been forced into semi-retirement, literally a 'consultant' to its own governing Council, having granted a power of attorney, through s.92, to the public and the Scottish ministers. The Law Society of Scotland hopes its new constitution will be ratified at the AGM in May 2010. The Legal Services (Scotland) Bill is the biggest change to the legal profession in a generation.

I call upon the Law Society, not to embark on a barely publicised three and a half week constitutional consultation period, but to allow a referendum of all LSS members. A true referendum: one solicitor, one vote; secret ballot; no proxies and no three line whips from the big commercials. The question? Should representation of the solicitors' profession be independent of the Law Society of Scotland?