Law Society must put house in order

When the Bill was finally passed last December, some of the sting was removed, with lawyers having the right of appeal against the commission's decisions. But if the Law Society's head honchos had known what 2007 had in store then they might not have seemed quite so cheery at the end of 2006.

Thanks to the curveball of the Which? super-complaint to the OFT, this year has been dominated by an accelerated debate on the dreaded alternative business structure. Of course, everyone in the profession has been prattling on about Clementi for so long without similar proposals being seriously mooted for Scotland that perhaps the Law Society could have been forgiven for being lulled into believing it could escape the march of Tesco law.

To be fair, when the Research Working Group on the Legal Services Market in Scotland reported in April 2006, it recommended against intervention. But, after Which? forced the issue, the OFT turned its attentions to the Scottish marketplace, and soon the profession was presented with a list of recommendations for reform, just in time for the Law Society's conference on ABSs.

To say there was no shortage of opinions aired at September's debate would be putting it mildly. Lawyers from across Scotland offered the society plenty of food for thought about the impact of ABSs on legal services and particularly with regard to access to justice. The profession appeared divided into two camps: broadly speaking, there were those who make money, and want to stay competitive in order to keep doing so; and those who are struggling to keep afloat and fear the ABS would send them under. The big question was how the society would attempt to reconcile the two, and it promised the debate would inform its options paper, published with little fanfare on 1 November.

Yet this consultation paper stopped short of putting forward proposals that might give further direction to the debate. It certainly covered the pertinent issues arising from the main forms of ABS. It also stated that the society's council considers "it is now right to facilitate some changes", though it would prefer to see stepped or phased changes introduced. But it was surprisingly light on offering pragmatic solutions.

The society could no doubt argue its lack of prescription is a virtue - it is not prejudging the response from the public and will use the consultation, which ends on 31 January, to inform the process. But the Scottish Government still intends to respond to the OFT's recommendations by the end of this year. So is there a danger ministers will move ahead with their decision-making, without the benefit of clear directions emanating from the legal profession?

The profession has been looking to the Law Society to grasp the nettle on this issue, and provide leadership, and some much-needed certainty, for the marketplace.

Kenny MacAskill, the justice secretary, extended a clear invitation for the profession to take the lead, with the caveat that there was not the luxury of unlimited time. But the problem here appears to be that the Law Society is structured to need lots of time to respond to anything. Any decisions of significance need to be run past committees and its council.

And setting aside the current debate over market reforms, the Law Society's role is about to change markedly. When the new Scottish Legal Complaints Commission opens next year, at a date still to be confirmed, it will be unburdened of its role in investigating service complaints from consumers.

Theoretically at least, this should free up resources and allow the society to focus on issues such as alternative business structures and the ongoing debate to overhaul legal education.

The society has statutory duties to regulate and represent the profession, bearing in mind the public interest. To have any hope of doing this effectively - in whatever brave new regulatory world we are about to enter - it will need to get its house in order in 2008.