Law and Legal Affairs: 'Big society' in the line of fire

Published on Thursday 3 March 2011 12:05

Bolshie troublemaker or a messenger being shot? Mike Dailly speaks to David Lee

TEN days ago, Mike Dailly was convener of a Law Society of Scotland committee. Yet Dailly and the society's leadership are as far apart on the future of the profession as they could be. If there is a dartboard at Drumsheugh Gardens, Dailly's face is probably pinned to it.

The principal solicitor at Govan Law Centre is unrepentant - about everything. His resignation from the society's ruling council and as convener of its access to justice committee laid bare fundamental disagreements, including repeated claims that the society wants to silence dissent.

The 42-year-old has been a vocal critic of the Law Society in times past, but came inside the tent for a while, rather than dampening the canvas as external dissenters are inclined to do. Yet since his resignation on 25 February, he has highlighted very publicly and angrily the perceived failings in the society.

He's made it very clear what he doesn't want - but if he had a blank sheet of paper, where would he start? "The first thing has to be an independent statutory regulator (ISR) of legal services," he says. "There are ISRs of financial services and doctors, so how can you construct an intellectual argument to say lawyers are different? One of the great ironies of 'Tesco law' is that it sees legal services as a product - like financial services. I don't agree - I think access to justice is a constitutional right. My opponents say law is a product, like financial services - which makes the case stronger for an ISR.

"Lots of people do not have confidence in the Law Society and think it's a cosy old boys' network. There is no sense in the society regulating providers of legal services following the new bill. We don't know what new providers might look like - but if they have no resemblance to a traditional solicitor practice, why should they come under Law Society regulation and why should they benefit from the master policy? Why should those paying into the guarantee fund support them?

"Why does the Law Society want to take that on? I think it's because it has become a self-serving, tiny elite. If you leave any entity alone, it will get bigger and want more things to do. The society is a member-based organisation trying to transform itself into a private company with a board of directors. All those concerns would be addressed and confidence instilled if we had an ISR."

With that in place, what would representation look like in Dailly's new legal landscape? "Solicitors would have the opportunity to choose who represented them - it could be the Law Society, the WS society, faculties, the Scottish Law Agents Society - or new bodies could be formed. I think we'd see evolution."So does the Law Society have any place in the future? Dailly is, for once, coy: "Lots of its staff would be contenders for jobs in a new independent regulator, like Bank of England staff went to the FSA in 1997. Those able, skilled staff would have nothing to worry about, but I think there would be a fresh recruitment for the board of the new regulator." Finally, he concedes: "There wouldn't necessarily be a role for the body that is now the Law Society. The new regulator would have to be genuinely independent and run by an independent board."

Dailly claims the fundamental problem is that in trying to fulfil a dual function of regulator and representative, the society has effectively failed to represent solicitors: "It cannot stand up to the Legal Aid Board and civil servants; it does what it's told and takes what crumbs it can because it is told things will get worse if not."

Dailly has little good to say about the society, suggesting its powers have waned. "In the past you had the senior partners from the big firms on the council. You do not have the heavy hitters any more, it is not the cream of the profession as in the past. In these economic circumstances, senior partners have more important things to do.

"Now the society is a bit player - the guy who goes out for the rolls and the tea - and comes back with sticky buns and coffee."

Dailly is not shy of throwing flowery insults at the society - but isn't he guilty of playing a central role in fracturing the profession, of potentially creating a perpetual state of warfare that benefits no-one - including the public and consumer interest that he claims to represent? "The profession is already fractured. (Law Society President] Jamie Millar says we need to unite but you cannot do that unless you are prepared to allow open, transparent debate. People need to be allowed to express their views and you might not agree but you have to be mature enough to accept those views. The legal profession does not have that."

Dailly's resignation followed an accusation that the chief executive of the Scottish Legal Aid Board (SLAB), Lyndsay Montgomery, had leaned on the society to have him silenced. The access to justice committee had criticised Mr Montgomery and SLAB over who takes the brunt of millions of pounds in cuts to the legal aid budget. Dailly's resignation letter claimed SLAB asked the Law Society to have the committee "reined in and controlled" - an allegation fiercely denied.

What of the accusation that Dailly is very much in the minority, out of step with most lawyers - and that 'referendum 2' last year delivered a clear majority in favour of the society retaining its regulatory and representative functions?

"It's not about what lawyers want," he says bluntly."It's about what consumers and the public want - and if you sat down with a random sample of people on the street and explained the current situation, they would favour an independent regulator."

Dailly, a father-of-two who has led campaigns against bank charges and won awards for his work at the Govan Law Centre, insists everything he does is driven by the public interest and a desire for justice: "I grew up in Whitfield in Dundee, one of the most deprived schemes in Scotland. I was the first member of my family to go to university and it wasn't easy to become a solicitor. I think it's a significant job and a great opportunity - a strong legal profession oils the wheels of democracy."

There is no sign of the legal civil war ending any time soon, with the vote on the new Law Society constitution set for the AGM on 25 March. Dailly is, unsurprisingly, not in agreement with the society: "The changes are unnecessary - and, to all intents and purposes, make it impossible for members to influence policy. If passed, a member's motion not approved by council will need a two-thirds majority. Why is that necessary if the society wants, as its says, openness, transparency and democratic accountability?"

Cameron Ritchie, president elect of the Law Society, answers Mike Dailly's main points:

Why are lawyers different to other professions? In most jurisdictions, lawyers are regulated and represented by one professional body. The real question is whether the current system is working; we would argue it is. With the Scottish Legal Complaints Commission dealing with service complaints and having an oversight role in the way we handle conduct complaints, there is a robust structure in place.

Why should the society regulate new providers? More than 80% of voting members favoured the society becoming an approved regulator of alternative business structures. Mr Dailly talks a lot about listening to members, so we don't understand why he believes we should go against the clear view expressed. All LPs will be required to have professional indemnity insurance - as do solicitor firms. The guarantee fund is a statutory fund which the society administers. In the legislation, the fund is opened up for LPs to contribute to and be covered by.

Does the society kowtow to SLAB and civil servants? No. We have seen changes benefiting the profession as a result of extensive discussions with SLAB and the Scottish Government.

Is the society a bit player with no 'heavy hitters' on its council? This is untrue, and offensive to hard-working, experienced and dedicated council members. Part of the strength of council is its make-up of solicitors from across the profession.

Is the profession fractured? Far from it. We have had and will continue to have open debate. We have consulted widely and sought all our members' views on many issues that are key to the long-term future of the profession.The Legal Services Act is now a reality and we must move on from rehearsing old arguments.

Are the changes proposed to the constitution necessary? We asked members, and a big majority of those who responded believed a system of qualified majority voting was better than having to hold two consecutive meetings to make motions binding.