Address to Council on 29 May 2009, on taking up office as President of the Law Society of Scotland

At or about the 26th of August, 1928, Mrs May McAlister or Donoghue ended a somewhat curious journey from her address “c/o McAlister, 49 Kent Street, off London Road, Glasgow” to the Wellmeadow Cafe in the west end of the town of Paisley, which, today, remains the jewel in the crown of Renfrewshire.

There, she had a brief refreshment.

Less than a year later, on the 18th of July 1929, with an expedition completely unknown to modern practice, Lord Moncrieff, sitting in the Outer House of the Court of Session, closed the record on her pleadings as to what had then occurred within that cafe and appointed her case to a debate on the procedure roll.

The rest is history.

What, you might say, has that got to do with the legal profession of today?

Well, firstly, if you look back to the pleadings on that closed record, they have a certain familiarity. The pursuer pleads:

"The pursuer suffered severe shock and a prolonged illness in consequence of the said fault of the defender and his servants. She suffered from sickness and nausea which persisted. Her condition became worse and on 29th August 1928 she had to consult a doctor. She was then suffering from gastroenteritis induced by the said snail-infected ginger-beer. Even while under medical attention she still became worse, and on 16th September 1928 had to receive emergency treatment at the Glasgow Royal Infirmary. She vomited repeatedly, and suffered from acute pain in the stomach, and from mental depression. She was rendered unfit for her employment. She has lost wages and incurred expense as the result of her said illness. The sum sued for is a reasonable estimate of the loss, injury and damage she has sustained as condescended on. The averments in answer are denied. Prior to the incident condescended on, the pursuer suffered from no stomach trouble."

The defender pleads:

"Ans. 4. Not known and not admitted. Explained that the alleged injuries are grossly exaggerated. Explained further that any illness suffered by the pursuer on and after 26th August 1928 was due to the bad condition of her own health at the time."

Now, what do we conclude from this, other than that, on behalf of defenders at least, Simpson & Marwick are not simply creatures of a modern age?

In some ways, things never change. There will always be dispute over the facts and there will always be the need for expert advice to resolve these disputes.

But, as well, there will always be scope for dispute over the law, or, at least, over what the law should be. We look back now with astonishment at the idea that the apparently innocent victim of food poisoning might not have had a remedy against its perpetrator.

But we also look back with satisfaction that, in this case above all others, the law proved itself capable of adapting to the modern age and to modern expectations.

Richard, our departing President, is often wont to observe that the law lies at the centre of a civilised society. In my cups, I, in turn have occasionally retorted with my old Marx: that the law is no more than an ideological superstructure on an economic base. We are both right, and we are both wrong. For the law to remain relevant to the society of its time, it must move with its time.

That is what Lord Atkin appreciated when he handed down his leading judgment in 1932. That is my message to you, today.

And for the law, so for the legal profession. Mrs Donoghue was fortunate to come across W G Leechman, Solicitor, Glasgow, who was prepared to take her case on what was then, as now, a “no win, no fee” basis.

But how many other deserving cases went by the board in 1928 for want of the access to justice then necessary to pursue them?

Eleven years later, and after a World War which acted as godmother to the modern welfare state, at last that question began to be answered by the Legal Aid and Solicitors (Scotland) Act 1949. And thanks to that legislation, we, in turn, sit here today.

But to continue on that journey out of history, we must recognise that it can’t simply be by a route on which we, alone, decide. Just as the law must adapt to modern expectations, so must the legal profession.

It is almost exactly 31 years since I sat my last degree exam at the University of Glasgow and, the following Monday, started my apprenticeship with Messrs Pattison and Sim, Solicitors and Notaries Public, 19 Glasgow Road, Paisley. That was, quite literally, a different age. I left university with an ordinary degree, partly, I have to say, by virtue of personal circumstance. But also because, then, the goal for few of us was the laurels of academe. The prize was rather the reward of the title of “Solicitor”, epitomised, though we little realised at the time, by a practising certificate issued on a single sheet of A4 paper by the Law Society of Scotland and sent from the semi-mythical address of 44 Drumsheugh Gardens. For us the objective was never the study of the law, it was always the practice of the law, and a good apprenticeship was always valued much more highly than a good degree.

What a different age it was! An age when partners each still had their own shorthand typist; before word processors, or fax machines, or mobile phones, let alone email and the internet. An age where counsel, of any age, senior partners in your own firm and partners of any sort in other firms were inevitably addressed as “Mr”. An age when the vast majority of the population never went anywhere near a lawyer because working people had no estates to settle up on death, no houses other than those provided by the council, and no dealings with the police unless they were manifestly guilty, since, after all, the police would hardly have arrested them otherwise. An age when only the very rich or the liberal middle classes (neither a large part of Paisley’s demographic) ever got divorced, and where the father of a child born out of wedlock had the single remedy of marriage if he wished to secure his parental rights.

And a different age for the legal profession as well. Where the largest firms in Glasgow or Edinburgh were rumoured to have an almost incredible up to 20 partners. Where, while some firms might do more legal aid work than others, all did it if asked, and then enjoyed a remuneration rate tied to 85% of the Law Society’s recommended hourly rate. An age when that hourly rate, and, more significantly, the scale fee for domestic conveyancing, underpinned the financial wellbeing of a profession which, yes, did then deliver on its part of the social contract by engaging in any amount of charitable, pro bono work on behalf of local churches and voluntary organisations, as well as on behalf of the deserving poor who might otherwise have slipped through the legal aid system.

But it was also an age when the higher reaches of the profession, with the very occasional (and exotic) exception was closed to all but one group: the sons of white Protestants. It would be an interesting study as to whether there were more Catholics than women, but it would have been a close call either way. Where there was no doubt was that the idea of an ethnic minority lawyer was just about as strange as the idea as a black President of the United States.

Today is a different age. An age where three quarters of today’s trainees start with firms of more than 20 partners; where the acquisition of a law degree is not restricted to the very best of our school leavers, but which, in turn, is then no guarantee of employment within the law; an age when the ability to negotiate a law library does not ensure an exclusivity of knowledge; an age when success in the law is determined much more by its practical application than by its academic mastery; but also an age where, thankfully, that selfsame success can be enjoyed by all, based on their ability, rather than their origins.

So, as your President, I will never be the obstacle to change. Change is in my lifeblood. In my term we will see the start of potentially the biggest single change in professional life since 1949. I do not underestimate the challenges that will bring - or the opportunities. Above all, however, I do not underestimate the obligation, on us, this Society of lawyers, to ensure that the Mrs Donoghues of 2028 cannot be left simply relying on the good fortune of the Mrs Donoghue of 1928 when seeking to ensure justice for their cause. I have been to the forefront of those arguing for greater financial efficiency in our affairs, but I also recognise that, for a profession such as ours, some things are beyond price.

And I also recognise that some other things have a lasting value. That a letter of obligation means the same whether it is issued by the largest firm in Scotland with offices in Saltire Court or by a one man solicitor's firm, up a close, in Cumnock; that the sheriff, no matter how wrong, is always right (at least until the sheriff principal says otherwise); that the client must always come first, but the integrity of the system above that still; that my word is my bond and that this reputation, once lost, can never be regained.
And one other thing, above all, at this place and at this time. That there will, always, in any lawyer’s day-to-day practice, be close calls or marginal decisions, but that in making them he or she knows that if they get them wrong then they will have to submit themselves to the jury of their peers, organised together in the Law Society of Scotland.

If you look at my interview in the Journal, you will know that, as a necessary condition of my office, I have forgone political partisanship, in this country at least. There was however one other event this week which I cannot allow to pass without comment. On Tuesday past, the young President of the United States, in whom so many of our hopes reside, named Sonia Sotomayor, a woman, a Puerto Rican, someone who has struggled with diabetes from the age of eight, but most remarkably of all, the daughter of a single parent, brought up in the one of the most deprived urban communities in America, as the next member of the United States Supreme Court.

Sometimes, just sometimes, you truly do believe that, in the famous words of R H Tawney, if there is to be a golden age, it lies not in our past but in our future.

I wish to conclude by saying only this. It is an honour beyond words to be chosen as your President. Thank you for your trust.

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