Ross Anderson reflects on the Legal Services Bill and the value of solicitors' independence

Lawyers are described with many words, many unprintable. But beyond the pejorative, what words best sum up what it means to be a lawyer? Honest? That goes without saying. Knowledgeable? Hopefully; but most clients are not interested in a lecture. Expensive? Expense does not always correlate with quality or value. Integrity? We’re getting warmer.

Law is the one profession whose members speak for others. This may involve standing up to the state, the judiciary and the executive. It may involve taking on the might of global corporate entities. It may involve promoting the activities of global corporate entities in the face of a hostile public. As we all know, the pressures on lawyers can be considerable: from an opponent, a judge, a colleague, a client. At different times and in different ways, the lawyer must always be able to put those pressures aside in order to consider her client’s position.

Throughout the debates on the Legal Services (Scotland) Bill (the “Bill”), the Scottish Law Agents’ Society, and others, have stood firm at a principled Alamo: in any open society subscribing to the rule of law, there must be an independent legal profession. This is not some “regulatory” principle to be binned on ministerial whim. It is a core constitutional principle. And it is a principle recognised by international benchmarks on the rule of law.

Opponents of the Bill are not in principle opposed to change or reform. Many reasonable people have made reasonable arguments in favour of the Bill, many of which were aired and challenged at the Law Society of Scotland’s AGM. But let us not forget that, in analysing these arguments, we must always bear in mind the end result being proposed: non-lawyer investors, motivated by profit, ought to be able to hold equity, perhaps all the equity, in law firms. Almost all existing law firms are, of course, businesses. But it does not follow that any business can be a law firm.

I address only one of the oft-repeated arguments here. It is said that certain firms – small as well as large – are already dependent on their most important clients. Since these firms are already economically dependent on certain clients, so goes the argument, it is mere detail to abolish the legal prohibition on such clients owning law firms. In other words, because firms are sometimes economically dependent on some clients, it should be permissible for them also to be legally dependent. The argument is not new. In a curious irony, the present advocates of the argument – Scotland’s corporate lawyers – follow one of the basic tenets of Marxism: the law is but an instrument of economic power; law is thus economics (class power) formulated in words; law ought therefore to be ignored or destroyed or harnessed to achieve ideological goals. If that is the Big Four view, they are entitled to it. But it is such legal “technicalities” – the sanctity of contract and property; the differences between equity and debt – that, every six minutes, many times over, corporate law firms breathe and bill.

Two other issues have been rightly raised. The first is that a failure to implement ABS will have a detrimental effect on the Scottish economy. It can only be emphasised and re-emphasised, however, that the ABS proposals will have a generally neutral economic effect. The Big Four could have taken their own advice months ago and re-registered in England. And, irrespective of the outcome of the AGM, they can still do so. I do not wish to see the Big Four leave Scotland; but, equally, we could introduce ABS in Scotland tomorrow and still the Big Four might leave. The “neutral economic effect” position is, of course, no argument for saying that we should not have the Bill. But, by parity of reasoning, the Bill has, in economic arguments, no firm justification.

The second issue is a much-repeated-mantra: “the status quo is not an option”. Now, that statement is either vacuous or irrational, depending how one views it, but nothing else. I do not thereby mean to suggest that proponents of the Bill are, in any way, deliberately trying to undermine the concept of law or the legal profession. On the contrary: I suspect the proponents are quite well-intentioned. But we do well to remember A W B Simpson’s warning: “the threat to liberty comes not from some malevolent enthusiasm for tyranny, but from a professional concern for efficient government.” We cannot predict the Bill’s consequences. We can ensure only that its rationale and details are compatible with the fundamental principles which underlie the rule of law. In my view, as presently drafted, it is not.

In this debate it is easy to become lost in fallacious headlines and technical details. The ABS debate, however, is not just about whether law firms continue to be, as Burns hoped, “o’ independent mind”; but that the profession is, in addition, seen by the public, potential corporate clients, and the market, to be independent in action. Independent, indépendant, unabhängig: whatever the language, no other single word – independent – better encompasses what it means to be a lawyer. Let our elected representatives bear that in mind when they come to consider passing the bill into law.



Dr Ross G Anderson, solicitor
Lecturer in Commercial Law
University of Glasgow