I was co-opted onto the Law Society Council as the member for new lawyers at the end of September 2009. I have attended several meetings now and just begun to get to know the 50-strong Council. The elected Council members combine enormous legal and business experience with diverse backgrounds and perspectives. I had hoped at the outset to spend some time listening and learning, and develop a good understanding of how the Law Society works, what it does and what it can do better for new lawyers like me (and not so like me).
As an ex-civil servant I thought I knew what to expect from being on this committee with a capital C. However, rather like beginning appearances in the sheriff court, I have tumbled into a fantastical Alice in Wonderland world in which hostile forces paint black and white what seems to me to be quite grey, and shout "off with their heads" with very little obvious provocation. Unfortunately Johnny Depp is nowhere to be seen.
Alternative business structures debate
The legal services reform agenda should be pretty familiar to anyone who has studied or qualified within the last few years, when an understanding of the Clementi reforms in England and Wales was mandatory in one LLB tutorial or another. When I joined Council I learned that the Society's policy on reforming delivery of legal services was determined by a vote at the 2008 Annual General Meeting. The majority supported alternative business structures (ABS) and the possibility that organisations which provide legal services could be owned and run by people (including Tesco) who are not lawyers.
Belatedly there has been a groundswell of opposition to ABS from representative organisations within the profession, most notably the Scottish Law Agents Society (SLAS). During my first couple of Council meetings I observed the mounting debate between member solicitors from different parts of the profession and of Scotland and the clash of disparate perspectives from their constituents. The views were diverse and discussions sometimes heated, although never less than courteous – unlike aspects of the external debate.
What was striking was the repeated assertion from the anti-ABS lobby inside and outside Council that any move away from solicitors' partnership arrangements was to undermine the very essence of legal independence. This was puzzling as even now there are constraints to what a lawyer can do. As all new lawyers know, from those legal theory tutorials in which it was explained very patiently to us that, despite lawyers' best intentions, law is not necessarily concomitant with justice. We are required to argue our client's best legal case irrespective of whether we think it right (provided it isn't actually illegal or unethical). If we wanted to fight for "right" in our adversarial system then legal practice might just disappoint.
Even if the arguments on ABS had been convincing, as a profession we have missed the boat on arguing that a partnership solely owned by solicitors is the best, indeed the only, way to provide independent legal advice and deliver good legal services. There is almost unanimous cross party support in the Scottish Parliament for the general principles underpinning ABS, and the bill to introduce the necessary powers will shortly reach stage 2 of the parliamentary process. The important thing now, is to ensure that solicitors can continue to give sound, independent advice to their clients no matter what the business arrangement around them is.
Special General Meetings and referendum
There have been two Special General Meetings on ABS in the last few months and one referendum. Although more lawyers voted in that referendum than ever before, still a majority did not express a view. And the minority are undoubtedly divided. There are parallels with our electoral politics, in which a party with 36% of the popular vote can form a Government to implement policies which 52% voted against. Most of the Scottish legal profession have not expressed a view on one side or the other on ABS. However principle and pragmatism must be combined in governance and representation of a profession, as well as a country. It was essential that the Council take a decision about how the Law Society can best represent the interests of the profession.
After the last SGM on 21 April and taking account of the ambivalence amongst the profession conveyed by the referendum result, the Council accepted that, as a credible representative body, it was time to modify the Law Society's policy of unconditional support for ABS. Council considered all of the information before it and adopted a compromise position which emerged from discussions with solicitors on both sides of the debate. This would guarantee majority ownership of legal firms, addressing the basic concerns of those opposed to ABS about justice and yet allow the Society to continue to work with others to shape the legislation to introduce reform.
SLAS have refused to countenance any compromise, and insisted that the Law Society adopt as policy opposition to any form of ABS because the proxy votes cast at the SGM indicated something like the settled will, to coin a phrase, of the Scottish profession. Now even the most hardline opponents of any form of ABS have begun to market their own compromise position, whilst maintaining, in discussions with the Law Society, a position implacably opposed to ABS. These are certainly interesting times.
New lawyers – taking soundings
The voices (for these are likely to be equally diverse) of new lawyers have been muffled in these discussions. There are two opportunities, and easy ones at that, to help shape what happens next. A group of solicitors now seek a further referendum on whether the Society should continue to have a dual responsibility to regulate and represent the profession. They argue that the Society has failed to properly represent lawyers' interests in the ABS debate, and more particularly the interests of high street practices as opposed to some of the large legal firms who want to embrace ABS.
That is a very different criticism from the failure to protect legal independence. It ignores the Law Society's investment of your funds in support for professional practice via the Practice Helpline; in training through Update events and conferences; and the information in your Journal. Separating the functions will only serve to weaken the voice of the profession. Regulation of the profession should be informed by strong representation within the profession. Nevertheless you should have your say. Please, please, please vote in the referendum.
Annual General Meeting – 27 May
Secondly SLAS seek to pass again their motion at the Society's Annual General Meeting to commit the Society, in the face of all the evidence that it will make no difference, to unconditional opposition to ABS. The compromise position on ABS now adopted by Council provides sufficient flexibility to heal the divisions within the profession without undermining its external credibility.
Three motions will be put to a vote at the AGM on 27 May:
- The first is a motion to support majority ownership of legal services by solicitors.
- The second is to limit ownership by non-lawyers (involved in the firm) to a maximum of 25%.
- The third is the original SLAS motion preventing any external ownership at all.
Please think about the issues. Continued division cannot be the right way forward. Think about where you are now and where you might want to be in future. The decisions taken by the profession will reverberate for a long time to come, and the landscape is moving fast around us. Have a look at some of the debate in the blogs on the newly formed Facebook group for New Lawyers which gives you a chance to comment directly and share your views with others. The page can be found here.
Please come to the AGM if you can and vote in person or by proxy if you cannot. Proxy forms can be downloaded here.
If you want to take part but cannot, then get in touch with me at firstname.lastname@example.org. Let me have your views and your proxy votes: open proxy votes if you are content that I vote with the Council's compromise position and against outright opposition to ABS, or closed votes if you wish to vote in a particular way.
Above all let your views be counted.Jackie McRae,
Council Member for New Lawyers Like to comment on this article? Please use the box below. Comments will be checked and then put live.