The music has stopped and the empties have been tidied up. Janet Hood saw much to celebrate at the Law Awards of Scotland, but warns of much to fear from the dreaded Akzo-Nobel case ruling from the European Court of Justice

I was delighted to have been invited to Chair the Law Awards judging panel. However the thrill of decision making was certainly topped by the glam and glitz of the award ceremony. Everyone who was anyone in our world was there proving they are all winners. Top prizes went to category leaders and these prizes were well deserved . They went to practices who lead on innovation and drive.
This year the Chairman’s award went to The Glasgow Housing Association. Not because they were in house. You all know that the last time I was chairman that award went to the fabulous Stephen McGowan, paralegal of the year with his former firm Hill Brown now Director of Licensing at Lindsays: See, I can spot talent.

No the award went to the GHA because they were in my opinion - simply the best. They are an in house team who are at the very top of their game and who can compete with the best of the best. Their job is giving independent legal advice to their employers, serving their public and making a difference in people’s lives.

They were described as a refreshing experience when compared with other in house teams by the Customer Service Excellence awards assessor before they won that award. Now that is a subject dear to my heart as it does take real effort to remember the needs of the customer when dealing with high volume business.

Now onto Akzo Nobel: a decision which has and should cause all lawyers some sleepless nights. The decision of the European Court of Justice in my opinion reflects a mindset not readily approved or even understood in Scotland or the rest of the UK for that matter, where in house lawyers are solicitors, where those solicitors are full members of their professional bodies, where those solicitors require to adhere to the same regulations, rules, ethical and other standards as their colleagues in private practice.
These solicitors are -strangely enough- engaged by their clients precisely because they can be trusted to give robust, independent legal advice to those clients as and when required. They are not the Godfather’s consiglieries. They are also required to have a sound understanding of their employing client’s business and are expected to give appropriate advice to further the aims of that business while ensuring the business operates within the bounds of the law.

So where we at, bro?

In EC competition law investigations , a fairly narrow field, legal privilege does not apply to advice given by in house lawyers. The fundamental point made by the ECJ was that in-house lawyers are too “economically dependent” on their employers to give independent advice on these matters.

I pose the question: which solicitor (with the possible exception of those who act pro bono) is not economically dependent upon his clients? Do the fees not count? Or is the fact that some persons engaged in private practice have lots of clients make a difference? What about the solicitor in private practice who has one or two clients? Is his advice somehow “safer” because he is engaged in private practice? I don’t believe so.

This is probably able to be demonstrated when we consider who appears most often before client care committees. It’s not in house practitioners.

But why should we worry? Are businesses about to shed their in house legal teams? No. The CBI and other business groups are actively fighting along side the Law Societies of Scotland and the rest of the UK to attempt to broker a change in this outdated law. Are firms sharpening their teeth to secure in house work? Some undoubtedly are however they have always been there and in house teams should not fear the worst and should as always strive to serve their clients professionally and to deliver robust, independent advice.

We should all fear the worst. Anti money laundering laws removed privilege in respect of those matters from all solicitors. Anti-terrorism laws removed privilege in respect of those matters from all solicitors. We are required to “shop” our clients if we suspect they are indulging in those activities. It could be argued that the removal of “privilege “ in these circumstances is reasonable. Positively Benthamite.

This latest decision by the ECJ is a move too far. It fails entirely to grasp that the world has turned in the last 30 years and that the independent in house solicitor is now vital to the survival of business in this country. How long will we survive as a profession if we fail to stand together to protest this latest attack on our standing as solicitors? Solicitors whether engaged in house or in private practice should actively support one another in these difficult times, lest we discover that further encroachment is made on privilege or that all privilege is removed. Or worse, leached away by persons with no comprehension of the fitness of our wonderful profession to serve our clients, to preserve the rule of law and to act in the interests of justice and truth in the 21st century.