Vote will put focus on whole question of representation

SIGNS of growing resentment among some sections of the legal profession came to a head last week, when a "requisition", signed by just 50 of the 10,500 lawyers in Scotland, cast the future of the Law Society into doubt.

As the society's council prepared the ground for a referendum on its policy towards alternative business structures – a vote announced last Monday – a much more pressing issue landed in the in-tray at Drumsheugh Gardens.

A small section of the organisation's membership forced the society to pose a much more fundamental question to Scottish solicitors – does the society still retain your support as a body set up to represent your interests?

The dual regulatory and representative role has long seemed incongruous to external critics of the society, many of whom suspect it reflects a cosy self-protection and a 21st century manifestation of the old-boys' network.

How can the society, they protest, act as both head-prefect and best friend in the school playground of law? Until now, the disquiet over this set-up has restricted itself largely to non-lawyers, but the society's handling of the once seemingly inevitable march towards alternative business structures for Scottish firms has fostered a growing band of dissenters, who accuse the organisations of kow-towing to the wishes of the Scottish Government.

Their gripe is that, by signing up so enthusiastically to the Legal Services (Scotland) Bill that would enable ABS to be introduced, the society is priming itself to hand over the much-cherished independence of solicitors to ministers who will be free to install lay representatives on the society's council.

In its defence, the society notes that the move to alternative business structures and all they entail was overwhelmingly approved at the 2008 AGM, and the reforms have passed off largely without significant incident ever since.

It also denies the very premise of the complaints themselves, insisting that the much-scrutinised and criticised Section 92 of the bill will not, as critics claim, allow ministers "unfettered" power over the make up of the society's council.

The society insists that any lay-membership put forward by ministers would still be subject to consultation with its council as well as the Lord President, a stance seemingly backed by Holyrood's justice committee as it outlined its report on Friday.

It was with an almost audible sigh that the society acceded to the request, made by the Govan Law Centre, Glasgow Bar Association and MacRoberts, to hold this latest referendum, which is, in effect, a motion of no confidence in the council.

They are frustrated that such vocal and concentrated criticism has come so late in the day, especially after it was understood the society had a mandate to speak on behalf of the profession.

But times change, and the legal landscape has fundamentally altered since the vote was passed in 2008. Many of the legal firms now concerned about what an alternative business structure filled future will hold for them were in a much more optimistic frame of mind when the original question was posed, and many harbour a suspicion that the society all too easily bowed to the pressure exerted by the larger firms in Scotland which wield massive numbers of proxy votes.

And surely, as they observe the conduct of their representatives as the bill passes through the parliament, members are permitted to judge their effectiveness in the negotiations and pass their own judgment?

What happens next is more difficult to judge. First, as the Law Society points out, the precise nature of the "representation" in question must be clarified.

Does this solely mean its political representation at all levels of European, British and Scottish politics? Or is the responsibility for professional support or training and education at issue?

Those that have called the referendum suspect a touch of filibustering at the heart of the society's decision to refuse to include a question on representation in the first referendum on alternative business structures. And while there is no doubt the Law Society has nothing to gain from an early vote, it will need to address this question eventually – it clearly hopes that a resounding endorsement in the initial vote on ABS strategy will dim the appetite for the second, more risky, ballot.

But for every lawyer in Scotland, the quicker the second vote is scheduled, the better.

If the society loses the representative vote, things become a whole lot trickier still. The announcement on Wednesday was short on details of proposed new representative structures, and whatever new body takes over – be that an existing society or a council of societies – the 60-year presence of the Law Society at the heart of the legal profession will be difficult to untangle.