Legal Review: Despite Brexit uncertainty, the law profession in Scotland is in good shape

At a time when the shifting sands of Brexit keep us guessing on a daily, sometimes hourly, basis, the Douglas Adams quote – “Trying to predict the future is a mug’s game” – seems more apt than ever.

Law firms have had to do more than most to try to respond appropriately to this uncertain future, for the sake of clients and their own businesses. Despite almost three and a half years with little clarity, Scotland’s legal sector has pressed on largely successfully so far, but even the optimists have niggles about what 2020 might bring.

“I do worry that some of the positive indicators belie impacts yet to come to pass,” says Lorna Jack, chief executive of the Law Society of Scotland. “I’m an optimistic person who looks for silver linings but I am more concerned about the economic uncertainty and potential impact on our member firms and less certain than I have been in previous years.”

However, both Jack and Angela Grahame QC, vice-dean of the Faculty of Advocates, see a positive and growing pipeline of talent coming into the legal sector.

With traineeships at a level not seen since before the financial crash, Jack says: “Trainee numbers in rural areas have shown a slight increase, with a significant increase in those going to work for the Scottish Government and Crown Office too. There’s more information out there about the value of small firm traineeships and the Society regularly speaks to law students about this. Young people are also more flexible about the wide range of opportunities on offer, including in-house and smaller firm traineeships. They are not limiting their horizons so much.”

From a Faculty of Advocates perspective, Grahame sees a similar picture: “We have 26 devils who have started out on their training towards becoming members of Faculty – the highest number for at least ten years – and their enthusiasm is obvious. We hope this buzz continues and grows in 2020.”

Grahame says the Faculty’s work on equality and diversity will continue into next year: “Improved equality and diversity will be a major and important aim within the Scottish legal profession in 2020, and at the Bar we are making considerable inroads in this area, working on a number of projects to produce greater fairness of opportunity across the board.”

Jack says the Society also has a focus in this area and will do all it can to deliver a diverse profession and to assist members in areas like deriving maximum benefit from new technology and supporting those suffering from mental health issues. “We are upping our game and will continue to do the heavy lifting to ensure our members are in good shape – and that we deliver what they want and support them to deliver excellent legal services,” she says.

Jack urges legal firms to be aware of global challenges, especially the increase in lawyering by large advisory firms: “It’s been suggested the big four [Deloitte, EY, KPMG and PWC] could employ around 15,000 lawyers in total globally. They are making enormous investments in technology and artificial intelligence and working well with young tech companies. It’s a real challenge for our profession.”

Yet Brexit remains the immediate in-your-face challenge – and one which Scotland’s largest legal firms have coped with pragmatically and, broadly speaking, successfully.

Andrew Blain, chief executive of Shepherd and Wedderburn, says: “Like any business, we can only worry about what we can control, so we have worked hard to maintain our focus on clients and providing a high-quality service. Our Brexit advisory team has been assisting clients with preparations for a range of possible outcomes, including a no-deal Brexit.

“Some certainty would be good but looks unlikely. But we are well placed as a business to face whatever confronts us in 2020 and beyond given our broad sectoral expertise, focus on building long-standing relationships of trust with clients and investment in technology... to help us and our clients work smarter.”

Nick Scott, managing partner at Brodies, says that his firm’s Brexit advisory group continues to provide updates on the process and its likely impacts, advising clients on all possible outcomes.

Brodies’ chair Christine O’Neill, a constitutional law expert, was in the Supreme Court for the Brexit case as standing junior to the Scottish Government and Scott says that clients across local and central government and the business community have called upon the firm to help guide their own Brexit plans.

Next year is a big one for Brodies, as it merges its split Edinburgh offices into a new-build premises at Capital Square, beside the Edinburgh International Conference Centre.

Burness Paull chairman Peter Lawson says his business is increasingly active in global markets in these uncertain times: “Our UK and international connections are absolutely central to our continued growth, allowing us to help clients in a wide range of different jurisdictions by building relationships with the very best legal firms in countries across the world. We are seeing record levels of inward investment into Scotland and our international clients tell us they are happy to do business here.

“We’ve been on regular trade missions to Asia and this year alone have visited Beijing, Guangzhou, Hong Kong, Shanghai, Shenzhen and Seoul. We know the US/China trade dispute is resulting in the US being off the agenda for investment from Asia. The UK and Scotland is firmly on the radar for Chinese, Japanese and Korean investment with energy, infrastructure and technology being key targets.”

And one target which will certainly focus the attention of the legal sector in Scotland next year will be the continuing discussion over future regulation of the profession. Last year’s Roberton review made 40 recommendations, the most contentious of which was to create a single regulator.

When the Scottish Government responded in June, the Minister for Community Safety, Ash Denham, said views were “polarised in respect of the primary recommendation … to establish an independent body, responsible for the regulation of all legal professionals in Scotland, and implications [for] the existing landscape”. She said the government would seek to build consensus on the way forward prior to deciding on action.

Neil Stevenson, chief executive of the Scottish Legal Complaints Commission, says “evidence is building” for an independent regulator, from other regulatory sectors and other jurisdictions: “A recent YouGov survey showed the public is firmly in favour of independent regulation.

And it’s difficult to agree there’s no mischief in the current system when there is only partial transparency as to how it works. We’ve been consistently calling for a more proportionate, consistent, accountable, transparent and targeted system.” But he expresses concern that “rather than a consensus on an effective regulatory system, we may end up with another messy compromise, which is what got us here in the first place.”

Angela Grahame QC says the Faculty of Advocates will “continue to collaborate... to build on the recommendations of Roberton and achieve the improvements needed to ensure confidence in the legal profession.”

Lorna Jack is hopeful that “polarised views” around regulation can be resolved: “The Scottish Government has signalled that it wants to bring parties together to find a consensual solution and everybody is working in good faith towards that. In the first half of 2020, I think we will see an outcome from that and I hope, out of the polarised views, we improve processes, not obsess about frameworks.”

This article first appeared in The Scotsman’s Scottish Legal Review 2019. A digital version can be found here.