The WS Society has transformed itself under Chief Executive Robert Pirrie who has moved the organisation into the frontline of policy. Writing exclusively for the Firm, he says it’s time to recognise that the Law Society can no longer credibly both regulate and represent solicitors, and argues representation should be handed to  a council of Scotland’s independent legal bodies .

The stage 1 scrutiny by the Scottish Parliament’s Justice Committee of the Legal Services (Scotland) Bill has brought to a head the debate about whether it is tenable for the Law Society of Scotland to both regulate and represent Scottish solicitors.  The catalyst is the Scottish Government’s desire for a more open, competitive legal services market.  

The Bill introduces a framework for the regulation of alternative business structures (ABS or non-traditional legal service providers) to compete with solicitors’ law firms.  It also proposes change to the regulation of solicitors and law firms by the Law Society.  This has exposed once again the increasingly troublesome fault line within our legal environment: the contradictory and unstable combination of regulatory and representative functions in the Law Society.  

I write this having been a Scottish solicitor since 1981.  I do not think for a moment that the introduction of ABS and more accountable regulation is a problem for solicitors.  That is to be welcomed. But there is a problem for the Law Society as currently structured.  My contention in this article is that the Bill as it stands will perpetuate the Law Society’s confusion of purpose to the detriment of Scotland’s independent legal profession and the reputation of Scotland’s legal system.   

A factor pertinent to the debate is the credit crunch and its aftermath.  This has raised serious questions about multi-service corporate brands, and the effectiveness of government regulation, in financial services and elsewhere. Public confidence in both is not what it was when the debate began on the reform of the legal services market in Scotland.  I am sure we all recall the admission wrung from the bank chiefs before the House of Commons Select Committee that they did not have a banking qualification between them.  This should be a wake up call for solicitors and consumers alike on the virtues of independent, professional values and control.  The Scottish legal profession enjoys a worldwide reputation based on hundreds of years of independence and integrity.  We need to do a better job than we have seen in the financial services sector if that is to survive.   

A practical consequence of the credit crunch is that solicitors are more concerned than ever with value for money and relevance to their businesses when it comes to the costs of regulation and representation.  We have seen this with the pressure on the practising certificate fee. The mood now is for regulatory costs to be proportionate and transparent, and for representative costs to deliver value according to each law firm’s or in-house department’s individual needs.          

Returning to the Bill, it is hardly surprising or objectionable in the 21st century that a statutory regulator of legal services will have a close relationship with government, and significant involvement from outside the legal profession.  Nobody should be swimming against that particular tide.  The problem for the Law Society is that closer government involvement in its regulatory function (through powers the Bill would give the Scottish Government in relation to control and operation of the Law Society) tips the balance in the already problematic relationship with its representative function.  We have somehow lived with this until now, although not without growing unease.  I seem to recall that, in the aftermath of the Clementi Review in England and Wales, the conventional wisdom was that s1 of the Solicitors (Scotland) Act 1980 (the Law Society’s poisoned chalice of promoting both the interests of the public and the interests of solicitors) was no longer tenable.  Yet, without missing a beat, the Scottish Government has produced a Bill that happily contemplates carrying on as before, despite increasing government powers of intervention in the Law Society.  

A first year law student would easily reach the conclusion that it is fundamentally untenable to have the representative function for solicitors within a body whose Council is controlled by the government and whose responsibility it is to regulate the legal profession through a non-solicitor controlled committee.  The legal system and its practitioners must be independent of the state.  This is basic, applied constitutional principle.  

The Law Society’s predicament is that its representative function is an illusion in the first place.  The truth is that solicitors are members of the Law Society because it is compulsory.  It is time to set aside the fudges of the past and recognise that it is fundamental to being represented that you have a choice as to your representative.  The way for the Law Society to recover clarity of purpose, respect and organisational efficiency, as it is moved ever closer to a partnership role with the Scottish Government in regulation, is to be focused on regulation alone.  It is not to pursue an ‘agenda for change’ with even more extensive, representative services, many of which are in irreconcilable conflict with its regulatory role.  Given a choice, I do not think solicitors wish to identify with, be represented by, or receive services from a government controlled regulator.  

Consider also the lack of financial transparency when regulatory and representative functions are fused in one body.  It becomes difficult to identify de facto cross-subsidy between the two functions.   Much of the recent disquiet about the practising certificate fee has been about the lack of transparency between purely regulatory functions and other, optional, possibly income generating, representative functions.  It is now a concern to solicitors whether their practising certificate fees are subsidising optional support services which they do not require but from which competitor solicitors may benefit.  

All these concerns are compounded by the possibility, permitted under the Bill, of the Law Society putting itself forward as a regulator and representative for ABS businesses.  One body could regulate both solicitors and ABS, but it is difficult to see how one body could represent both without, again, irreconcilable conflict of interest.  

It is worth recalling that what is currently the Scottish solicitors’ profession does not begin and end with the Law Society.  The Law Society is a relative newcomer in a lineage that goes back to Scotland’s first separation of the judiciary and legal profession from the state with the creation of the College of Justice in 1532.  As our first year law student would tell us, the College of Justice was our first constitutional entrenchment of Scotland’s independent legal profession.    

If the Law Society is no longer in a position to represent the solicitors’ profession – and, in case you missed it, it is my contention that it is not – then we need an alternative.  Before the Law Society was created in 1949 (following the English model), regulation and representation were carried out by a co-ordinating council of Scotland’s independent legal bodies.  That degree of self-regulation would be an anachronism today.  But a reprise of that form of representation would be a different matter.  Each solicitor and law firm would have the freedom to affiliate to an independent, representative body suitable to their individual business needs, and to participate in a collective representation of their independent profession.  It might be beyond our first year law student’s ability to devise the constitutional framework for such a council of Scotland’s law societies (e.g. WS Society, Royal Faculty of Procurators of Glasgow, SSC Society, Society of Advocates in Aberdeen, Glasgow Bar Association, and local faculties), but certainly not beyond the collective abilities of a committed profession.  

We are at an important historical juncture, not just for the Law Society, but for all Scottish solicitors.  This is a time to set aside personal and organisational interests and focus on the fundamentals. It is right to have a new regulatory framework for Scottish-based legal services that is fit for the standards of the 21st century.  I urge all solicitors to think carefully about how we achieve this in a manner that best suits the needs of solicitors’ businesses and preserves the independence and integrity of our profession.

Robert Pirrie is the Chief Executive of The WS Society and a former partner of Dundas & Wilson and Maclay Murray & Spens