The former President of the Glasgow Bar Association and former member of the Law Society Council John McGovern has proposed the creation of a separate representative committee of the Law Society.

He also says the Society’s proposed constitution aims to add a third function to the Society’s oft-conflicted dual roles of representation and regulation, which he says have forced the Society into conflicts of interest.

His comments come in his response to the Society’s consultation on the proposed new constitution.

“This constitution is unworkable. It is trying to achieve a balance between representing the interests of solicitors, regulating solicitors and regulating LSPs. The constitution proposes this be under the authority of Council. It cannot be achieved. And indeed has not been achieved in any other national jurisdiction, anywhere,” he says.

“It is essential that solicitors are properly represented by those whom they choose to represent them.

“As if the “dual functions” of the Law Society were not sufficiently conflicting in the eyes of the profession and the public, the Law Society now intends to have a “tertiary function”: the regulation of LSPs.

“In order to carry out its policy to act as a regulator of LSPs, the Law Society must include in its constitution express provision that it must avoid conflicts of interest in relation to its own “dual functions” for solicitors and how they relate to its LSP regulatory functions. There is no such provision in the constitution.

He adds: “The widespread public, and professional, dissatisfaction with the “dual functions” of the Law Society will be aggravated by the creation of its new “tertiary function”.

McGovern says the recent example of reform of the legal aid bill in England led by their Law Society with the sole function of representing its members interests, was a model “desperately needed in Scotland.”

“Such a complex legislative provision, on such a fundamental matter as the functions of the Law Society, exists only because the Law Society seeks to retain power. But, in my view, this provision can only work if, effectively, Council is fundamentally changed and a new governance model is created,” he says.

“The only way I can envisage the constitution meeting the criteria of the 2010 Act is for a separate representative committee to be established. The representative committee would and should consist only of solicitors.. Otherwise the proper interests of solicitors are not being served.

“Observing the English Law Society discharge its exclusive representative function in an ever more influential way, makes it all the more lamentable that the Law Society of Scotland has, simultaneously, spent a great part of this recession trying to write its own constitution from a perspective of self preservation. Given such a motive, it has, not surprisingly, once again, failed.”

McGovern’s response can be read in full, here.

The consultation on the constitution closed yesterday.