In-house counsel is ideally placed

IN-HOUSE lawyers have been urged to "get in the faces" of their clients to guard against being marginalised during a period of unprecedented change for the profession.

Janet Hood, chair of the Law Society's In-house Lawyers Group (ILG), said solicitors working in-house are ideally placed to play a crucial role in the debate about the future shape of the profession, including advising on multidisciplinary working.

But, speaking at the ILG's annual general meeting and symposium in Edinburgh on Friday, she warned lawyers needed to push themselves forward as integral members of the team running businesses, as changes such as the new Scottish Legal Complaints Commission may make it less attractive for employers to retain lawyers in house.

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And she added that feedback from the ILG's meetings around Scotland was not always positive, with many in-house solicitors complaining they already felt sidelined within their workplaces. "Lawyers say they are feeling marginalised," she told delegates. "What can you do to make things better? One of the things you can do is to get in to the face of your clients. The only way to get on is to know who your clients are. How many of you go and see your planning service, your financial service, the commercial director of your firm? How do you expect to be noticed? You fight your way on to management committees. You prove that you have a brain that can help with the business."

She added: "One of the things that is tremendous is we work in an alternative business situation. All of us have to drive the business we work for forward. Our job is not just to give legal advice, but to assist in the running of the business."

Hood expressed concern about the implications for in-house lawyers of the Legal Profession and Legal Aid (Scotland) Act, which has paved the way for the new Commission. "This is something that has been coming down the line like a steam train," she said. "We have to be aware of what is coming - everyone in this room will have to pay a fee to the Commission [but] we act for our internal clients. We don't owe a duty of service to any other person. We are going to have to find ways of making it clear what we are doing is giving legal advice to the people who are our masters, and not general advice to people in the public domain."

Richard Henderson, president of the Law Society and a former in-house lawyer with the Scottish Executive, also expressed concern about the impact of the Commission on in-house lawyers, who now make up one in four solicitors. "There can be no doubt the prospect of the complaints commission casts a shadow over the sector," he said.

Henderson added that the payment of an annual levy, pegged at 50 per cent of the practising certificate fee, may be a disincentive to employers to retain solicitors in-house. "It is a more serious business for those whose employers will not meet that cost," he said.

Despite marked differences in the perceived interests and needs of in-house and private solicitors, Henderson called on all in-house solicitors to engage in the debate about the profession's future: "The core question is whether Scotland wants and whether we as lawyers want a legal profession rather than a collection of people engaged in the practice of law and more importantly, what sort of profession that should be."

Last week, the Law Society published a consultation paper on the future of legal services in Scotland, drawing on views aired at its September conference on alternative business structures. Hood said she was pleased that the society was involving in-house lawyers in the process: "We work within an alternative business structure. We are required to work with accountants, politicians and anyone else and still able to be appropriately regulated by the Law Society. The Law Society, I am sure, will come up with solutions to ensure all types of business flourish but are appropriately regulated."

But Hood said she had been "astounded" by the lack of understanding of the issues from the consumer lobby, and cited failure of Which? to comment in detail on new models for reforming the rules governing business structures when she questioned their representative at the recent conference. "It made me think of a nasty child who takes apart someone else's toy and can't put it back together again," she said. "We are not dealing with toys here."

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The range of topics covered by speakers at the ILG symposium highlighted the breadth and complexity of the legal issues that in-house lawyers and the solicitors they instruct in private practice are dealing with. Speakers included Graeme Fyfe of Pinsent Masons, who gave an overview of the main changes resulting from the Companies Act 2006, while Sheila Gunn of Shepperd+ Wedderburn outlined some of the latest issues arising from discrimination law, and the establishment of the new Commission for Equality and Human Rights. The keynote address of the conference was given by the country's most senior in-house lawyer - the Lord Advocate, Elish Angiolini, who, in addition to her role as head of the prosecution service, is also chief legal adviser to the Scottish Government on civil matters.

Angiolini outlined the main responsibilities of the dual role, and added that the workload and level of public scrutiny surrounding the job had increased markedly since devolution. "Life as a law officer is probably more uncomfortable, but that is probably a very good thing," she said.

She also acknowledged that debate would continue as to whether the role could be split, with a new post, similar to that of the Advocate General, created to take over as government legal adviser. But she added: "The allegiance of the Lord Advocate to the public interest can be seen in the dual role."

Hood added that in-house lawyers should be proud of their achievements, exemplified by the recent success of solicitors including the Lord Advocate. "She is an enthusiast, and she is an example to us all. She started in the procurator fiscal service and has got to the top. It is absolutely wonderful for in-house lawyers. We can demonstrate we are as good if not better than anybody else."

Hood added that the ILG would be attempting to do more to support recruitment of in-house lawyers, particularly among prospective trainees, and cited recent successes in attending university law fairs.

"Many [students] said they had never considered a career in-house and didn't realise they could get traineeships in-house. It was fantastic to see enthusiastic young people warming to the idea."