What does the public think of the legal status quo in Scotland? ​​​​​​​- Rob Aberdein

As I was sitting with my coffee and laptop, ready to pen my regular column – which would have been about the health and wellbeing of solicitors in Scotland (which, rest assured, will follow) – an email arrived in my inbox which arguably also has a lot to do with the wellbeing of solicitors in Scotland.

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The author is proposing a motion at the upcoming Law Society of Scotland AGM that would seek to exclude alternative business structures (ABS) from operating in Scotland and put forward a number of arguments to support this. These included the following points:

• solicitors’ rights are held in public trust and cannot legitimately be sold privately;

Rob Aberdein is Chief Commercial Officer at Progeny

• the solicitors’ profession enjoys the privilege of monopoly rights to deliver to and charge the public for certain legal services;

• the solicitors’ profession has not consented to ABS;

• ‘State Control’ of solicitors’ regulation cannot legitimately be purchased by private bargain, and;

• that ABS has failed to benefit England and Wales and that it is inevitable that a solicitor acting within a shareholder company shall face an irreconcilable conflict of interests.

I don’t propose to analyse the merits and demerits of ABS here but am content to share on record that I am broadly in favour of this, subject to the appropriate checks and balances. There are also those in the profession, such as Brian Inkster, who can set out the alternative case for ABS in a much more articulate and informed manner than I.

Brian will tell you that legal practices currently operate as private businesses run to generate profit for their owners and that they are not ‘public assets’. He will also tell you that there is indeed a monopoly that was correctly identified some considerable time ago (by the Roberton Review) as not being in the best interests of the legal practices nor consumers.

He would also point out that in England and Wales, when that monopoly was removed by the Legal Services Act 2007, there was fear amongst certain solicitors that they would lose their livelihoods as a result. That never transpired. Instead, Brian would point out that evidence shows that non-solicitor spouses have become part-owners in a business they had supported, as have employees, and that more options are now available to law firms for succession planning and raising finance.

My overriding thought when reading the email however, and the question I’d pose to the Scots lawyers reading this, is – how would members of the public ‘looking in’ view the current debate within the profession and what might they conclude was the best way forward to advance their interests? Would they perhaps be encouraged by the prospect of investment that improves the customer experience and the removal of a monopoly? If the client was able to ask those advocating for the status quo to outline the positive arguments for the consumer, I also wondered what these might be? I struggled to come up with any to be honest.

The very nature of the profession and all that’s good about it means that healthy debate about its future should be encouraged and facilitated, but ought the debate not to centre on what is best for our clients, as opposed to what is best for some in the profession?

Rob Aberdein is Chief Commercial Officer at Progeny