John McGovern, the newly elected President of Glasgow Bar Association has called for a full referendum of all solicitors to determine whether the Law Society should continue in its representational role for the solicitor branch.

McGovern says the Law Society failed to consult the profession properly on its recent decision to reorganise its structure into a board, with input from unelected lay members.

His call follows criticisms from The WS Society who have also said the representation of solicitors should be returned to the pre-1949 model and removed from the Law Society.

“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 12th October. The consultation period ended on 5th November. In neither of October’s nor November’s Journal was the consultation mentioned. Nowhere. You probably missed it. I nearly did,” McGovern told the Firm.

“In March this 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 30th 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”. Its publication follows much uncertain debate within the profession about the provision of ABS. In fact the only certainty about the debate was the uncertainty of what ABS will mean for the profession.

“Section 92 of the Legal Services (Scotland) Bill allows the Scottish Ministers to appoint whatever number of non solicitor members to the Council of the Law Society as is “necessary”. This can be done by statutory instrument. I don't remember that debate.”

In an exclusive article to be published in the forthcoming edition of The Firm, McGovern says the profession has collectively weakened over the last twenty years, and the Law Society has allowed itself to become controlled by the Scottish Government

“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,” he says.

“Now, to understand much of the PR from Drumsheugh Gardens, a degree in amateur corporate euphemism is required. In a recession. Since devolution, 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.”

In his call for a member referendum, McGovern argues that Law Society have exceeded their powers and gone further than the constitution of the Society entitles to in the creation of its new structure.

“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”,” he says.

“It’s impossible to tell from the Law Society’s own website actually why this “Board” 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” being undermined by the pursuing rebels. But here, the rebels are the Government of the day.

“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.”

Prior to the creation of the Law Society and the formal role of “solicitor” in 1949, the legal profession in Scotland, comprising writers and law agents, was regulated by collegiates such as the WS Society and the Royal Faculty of Procurators. Some senior figures in the profession have told the Firm privately that modeling the Scottish Law Society on the English model has not proven successful, given the inherent “schizophrenia” that comes with the dual functions of representation and regulation. McGovern argues that separating out the regulatory function from the representation would also benefit Scots lawyers.

“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 organization, 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.

“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. Whilst I appreciate the arguments for non-solicitor participation in our regulation, why should twenty per cent of the Council that represents my professional interests be members of the public? Why should solicitors elect only fifty eights per cent of their representative body? Solicitors, and solicitors only, should represent the professional interests of solicitors.

“In its sixtieth 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 publicized 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?”

McGovern’s article can be read in full in the next edition of the Firm.