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Solicitor David Flint, who in 2009 lodged the motion at the Law Soicety AGM to reduce the solicitors' practicing certificate fee, has criticised the "major failings" of the latest draft of the Society's constitution and the process behind its implementation.
In a lengthy and highly charged critique of the Society's governance, Flint argues that the process amounts to "pointless interference", and the reform exercise is "window-dressing of the most blatant and shameful type."
"Irrespective of what comments are made, none of it will matter since previous behaviour by Council and the Executive make it clear that the views of the members don’t matter; it is the view of the (heavily unelected) Council and the non-solicitor Executive which will count," Flint says in comments submitted in response to the Society's consultation on the constitution.
"Even if the member are impertinent enough to challenge that view, the proponents of opposing views should expect to be driven from Council and face criticism and a barrage of adverse publicity from the organs of the Society, the Journal of the Law Society of Scotland (supposedly the magazine of the profession, but in truth the voice of the Executive and of Council) and a campaign funded by members contributions – despite the obvious fact that the Society is meant to be representative of all the members and not of some faction within the profession."
In his analysis, Flint challenges the current existence and purpose of the Society's executive Board, arguing that it is ultra vires of the constitution for it to discharge the Society's executive function. The current draft constitution proposes formalising its role.
"If there is to be a Board (and if the Constitution needs changed to allow this) why has the Society had a Board for several years? The Corporate Plan 2011-12 talks about a Board, but if members have not voted to change the Constitution to allow this, is this not somewhat presumptuous?" he asks.
He adds that transparency of the Society's elecion processes is "totally lacking", and creates & perpetuates a perception that the Law Society "is run by a small group for the benefit of a small group." He adds that Standing Orders are "fixed in secret and determined by Council with no democratic oversight", and are used to "stifle debate and prevent opposition to Council."
He concludes by arguing in favour of solicitors' right to choose their membership of the Law Society, or an alternative "democratic organisation."
"Of course at the present time, solicitors don’t have a choice, and Law Society policy is that they do not get one. However, these documents are in the public arena so perhaps the Society is waking up to the fact that it cannot be all things to all men and that even for it, it is a conflict too far to represent all strands of the profession, the public interest (however that is drawn under the Act) as well as being a regulator of Alternative Business Structures, the very existence of which may undermine the interests of both the profession and, arguably, the public interest," he says.
"Maybe the Society should come clean about its intentions and whether it will support legislation to remove the compulsory representation obligation. Or perhaps we should all find someone with whom we can form an ABS and move away. Either way, tinkering at the edges of the problem by an attempted power grab through a new constitution addresses none of the issues and serves merely further to alienate a substantial section of the membership."
The full response can be read here.