Law Society: Opening the door on argument for change

Published on 16/05/2010 19:51

A LAW Society referendum is under way, asking lawyers if it should continue in its role as the representative body for the profession. Here are the views on both sides.

YES

FOR SO many reasons, solicitors in Scotland, and the public who use their services, are better served by retaining a single body for regulating and representing the legal profession.

At the heart of the issue is the question of what it is to be a profession. The rights and duties that a profession has, and the relationship between regulation of the profession and representation of its members by the profession, are not mutually exclusive.

These roles can rest within a single professional body that both regulates and represents. Providing that dual function through the Law Society of Scotland ensures effective leadership. Its elected council is well placed to promote, lead, represent and support the Scottish solicitors' profession. The council can make informed decisions on the way forward and ensure that effective regulation remains with the profession, while maintaining the interests of the profession, which do not differ from the interests of the public in relation to that profession.

The council is made up of elected members drawn from the profession throughout Scotland. They make decisions for the whole profession based on their knowledge and experience in practice.

The council is informed and assisted in the delivery of its decisions by more than 600 solicitor and non-solicitor committee members who add relevant, practical knowledge and insight through the society's extensive committee structure. This allows them to cover a plethora of areas of interest to the profession.

Providing a forum for differing interests and views is part of being a profession and the society's committees and council allow it to debate, decide and then act. In operating through the Law Society in this way, the profession is able to speak with one voice. A single professional body that includes other representative groups provides a focus for regulation, representation and support.

That, in turn, ensures credibility, recognition and respect, both among legal groups and other bodies, such as government and parliament, while closely safeguarding our independence.

Coming together in one body also greatly enhances our negotiating power, for instance, in relation to legal aid rates and other fees. In addition, the 1,250 firms represented by the society provide significant purchasing leverage. The Master Policy for professional indemnity insurance is a prime example of the society securing best value for its members.

Crucially, there are also significant cost savings in having one organisation covering various functions. The costs of the Scottish Legal Complaints Commission and the Scottish Legal Aid Board show the effect of splitting off functions from the society.

Likewise, when regulatory and representative roles were separated in England and Wales, the cost of a practising certificate increased substantially.

It should also be borne in mind that splitting the Law Society's functions could result in provision of regulation – rather than representation – by a body independent of the profession. This cannot be an attractive option. Our own decisions are best informed and moderated by being a professional body responsible for regulation and representation. That allows the society to make practical decisions that work for the profession.

When dealing with individual cases, there is clear separation between support and the regulatory functions. For example, there is a confidentiality protocol for advice given to members on rules and practice inquiries.

Yet, effective regulation alongside support for solicitors allows us to maintain the highest professional standards by promoting the delivery of quality services and building the trust of clients.

All of this ensures that the badge of the Scottish solicitor is a mark of distinction that sets solicitors apart from unregulated legal advisers. That badge represents what it means to be a profession: a common commitment to the rule of law; the importance of personal integrity, and the realisation that professional privilege brings with it an equal obligation to work for the public good. The society promotes and protects that badge for the profession.

Solicitors in Scotland are a diverse group. But small and large firms, urban and rural, private practice and in-house, all belong to the same profession. And the title of Scottish solicitor is best and most instantly defined as being a member of the Law Society of Scotland.

The society's council, committees and staff work tremendously hard for the profession. There will always be times when members might disagree with some of council's policies, priorities and decisions, but the way to best shape the future is by engaging with the society. Solicitors can stand for election to the council or join a committee. By listening to diverse views and seeking constructive solutions, we will move forward as a united, effective and respected profession.

&#149 Jamie Millar is the president-elect of the Law Society of Scotland. The referendum is open until 25 May. See www.lawscot.org.uk for more details.

NO

FOR the second time in a month, our profession faces a choice in a referendum. Split down the middle over the principles behind the Legal Services Bill, the profession now has to choose whether the "dual functions" of the Law Society of Scotland should be separated.

These functions, of representation and regulation, have existed since the Law Society was created under statute in 1949. Until that point, existing bodies, such as the WS Society and the Royal Faculty of Procurators of Glasgow, were responsible for the regulation and representation of their members.

The 1949 change of status for the profession was a noble one. The concept and idea that there should be a national Law Society that could more effectively regulate and represent the profession, in a unified manner, met with little objection and, in subsequent decades, it established itself as one of this country's most respected institutions.

The Solicitors (Scotland) Act 1980 stated quite specifically that the Law Society should have as its objects the "promotion of the solicitors' profession in Scotland" as well as the "promotion of the public in relation to the profession". This was a balancing act that often (in my view unfairly) attracted criticism. However, it was, and is, a conflict that sits uneasily on many shoulders.

Over the years, this has resulted in a regulatory scheme (for solicitors) that now tips the balance in favour of the public. Section 93 of the Legal Services Bill will allow the public to have the chair of the Law Society's regulatory committee, which will be split 50-50 between the profession and the public.

In England, where the "dual functions" of the Law Society were split under the terms of the Legal Services Act 2007, the Solicitors' Regulatory Authority has a two-thirds/one-third balance in favour of the profession.

Our council, however, is also responsible for the representation of the profession. Under the terms of the Legal Services Bill, at least 20 per cent of our representative council will be appointed members of the public. There is no limit in the bill as to how high that percentage figure can reach. The public will have full voting and participatory rights in the representation of solicitors. The well-founded arguments for the removal, or at least amendment, of Section 92 of the Legal Services Bill (which allowed the government to control the proportion of non-solicitor members sitting on council, as well as setting the criteria for the appointment of those members) were, despite the Law Society's acquiescence for months, eventually recognised by the government as not complying with Article 11 of the European Convention of Human Rights.

Although Section 92 will be substantially amended, the principle of government, or public, interference with our council still worries many. As Robert Pirrie, chief executive of the WS Society, recently explained, it was symptomatic of what many perceive to be the steady encroachment of government involvement in our profession. While that may be intended to be directed more at the regulatory function, it compromises independence if the representative function sits in the same body.

There is not another democratic country in the world that has deregulated its legal market, and yet still has a solicitors' governing body representing and regulating. The profession owes it to itself to at least consider separating the functions of the Law Society.

Historically, its policy of compulsory membership was perfectly understandable: to ensure the highest of standards and thus offer enhanced public protection. However, when solicitors' independence is undermined in the manner proposed in the bill, it becomes a problem.

If there is external ownership of law firms, as the bill proposes, then surely it cannot be suggested that the profession will remain independent? Independent of whom? To some, there is no difficulty in the public being directly involved in representing solicitors. That being so, they can choose for the Law Society to continue to represent them. But for others, the compromises to our independence are too great to envisage and a choice should now be allowed.

The notion that the profession could not organise itself adequately, into independently constituted representative bodies working within a Joint National Council framework, is to do it a disservice. These bodies already have highly developed education, training and law reform infrastructures. For those that don't, the saving practitioners will make, of about 3.5 million per year in practising certificate fees, could be re-invested.

When the Law Society says it wouldn't work, it infers that the current arrangement does work. But there are not many solicitors who voted "no" in the last referendum who feel the Law Society is working for them at present. I suspect many who voted "yes" are unhappy with how matters have been handled by the Law Society.

My contention is, if you value the principle of an independent profession, then you will vote "no" in the current referendum.

&#149 John McGovern is president of the Glasgow Bar Association. The referendum is open until 25 May. See www.lawscot.org.uk.