Break-away move is the latest blow for lawyers' body

EVEN those at the helm of the Law Society of Scotland will now openly admit they are experiencing troubled times. Of course, suggesting anything otherwise would be laughed out of court, and the revelation that lawyers are now actively manoeuvring to establish a new representative body, to argue better their case for recognition and remuneration, is only the latest instalment in the society's depressing litany of woes.

In the past 12 months, the society has tried, and failed, to retain its absolute power to regulate solicitors. Once the Legal Profession and Legal Aid (Scotland) Bill is enacted, it will lose control over service complaints.

The society finally admitted defeat in December, agreeing to the principle of an independent Scottish Legal Complaints Commission, but only after initially rejecting all four of the Scottish Executive's consultation options for reform - and coming up with one of its own instead.

But another crisis was simmering. In May, criminal defence solicitors requisitioned a special general meeting, calling on the society's council to withdraw co-operation in criminal matters from the Executive and Scottish Legal Aid Board, until the question of legal aid fees could be resolved.

More than 300 solicitors, incensed that they had not received an increase in solemn legal aid fees for 14 years, voted for the move, and the society's council had little choice but to agree.

Last week, the society finally brokered an improved legal aid deal with the Executive, but if they had hoped this would end the bitter dispute, and quell the revolt, clearly they were wrong. Criminal lawyers - many of whom were already aggrieved that the society had to be bounced into putting more pressure on the Executive - argue that the negotiators caved in too quickly and failed to consult them widely enough before accepting the offer.

Now they are not only openly questioning what role the society will have, once stripped of much of its regulatory power, but also where else solicitors can turn for representation.

For now, the revolt is largely confined to the ranks of the legal aid lawyers, who only make up around 15 per cent of solicitors, but there are other solicitors who are less than happy. It was the profession's lack of support for the status quo that persuaded the society to back down on the complaints-handling issue last year.

But most of these problems can be boiled down to one source: the tension in the society's dual role as regulator and representative - as promoter and policeman of the profession.

Ironically, while the public widely perceives the Law Society as little more than a glorified trade union looking after the interests of lawyers, its duty to protect the public interest is in fact enshrined in section 1 of the Solicitors (Scotland) Act 1980.

Of course, many consumers will argue it has failed dismally to protect the public interest. A sift through some of the public's responses to consultations on the Legal Profession and Legal Aid (Scotland) Bill, or a glance at the "rogues gallery" on the Scotland Against Crooked Lawyers campaign website, shows just how many people feel deeply aggrieved.

In recent years, the society has made some significant and beneficial changes to the complaints-handling process. There is now increased lay representation on its client relations committees, and all firms must now designate a client-relations partner.

In her last report, Linda Costelloe Baker, the former Scottish Legal Services Ombudsman, acknowledged there had been real improvement.

"I was satisfied that the Law Society had acted fairly, efficiently and reasonably in 60 per cent of the cases I examined, the highest rating ever recorded," she wrote. But despite their frustration that their efforts have gone largely unrecognised, senior figures at the society have conceded that it has all been too little, too late. The profession has been too slow to respond to the demands of a consumer society.

For some time, there has been a clear disconnect between what the society feels its role is and what the political climate dictates it should be.

To be fair, the fact that many solicitors are unhappy will not have come as a surprise to staff working at 26 Drumsheugh Gardens. In an interview for this newspaper's law pages in July, the chief executive, Douglas Mill, issued a pre-emptive strike. He called for a "robust debate" on the future role of the society, including whether section 1 should be ditched.

Writing in the Law Gazette, solicitor Brian Allingham argued section 1 was "redundant and anachronistic". Its removal would allow the society "to evolve into an ardent representative of its members, without having its hands cuffed securely behind its back".

Only a change in the law could free the society from the shackles of its public interest duty and allow it to become a trade union. That change might come eventually, but not soon enough for solicitors. The society will have to review its priorities quickly. While it has a clear duty to address concerns about the battery of regulatory reforms that are being proposed, it cannot afford to lose sight of the issues affecting lawyers at grass-roots level.

For the society to weather this storm, it must now prove its worth to solicitors; it must look for new ways to engage with the profession and ensure it consults solicitors, especially those who are remote from Edinburgh.

Unless the profession can have faith in the society's ability to represent its interests, then its power and influence can only wane.

Past president Caroline Flanagan's recent comment that the society is seen as "pleasing no-one" might well become its epitaph.

• Jennifer Veitch is a freelance journalist and regular contributor to The Scotsman's Law & Legal Affairs pages, which are published every Tuesday.