Whatever the result of the now imminent referendum, the world will not stop turning. Nor will the practice of law suddenly look different. New proposals from the Law Society of Scotland, on the other hand, could radically change the familiar landscape of practice rules and regulation tools.
If the Journal's experience to date is anything to go by, many solicitors are at best only vaguely aware of the two consultation papers, explained in this month's lead feature, on entity regulation and on principles and outcomes-focused regulation. However it would be a mistake to let this exercise sail by without troubling to find out what it might mean for you and your business.
Regulation is never the most exciting subject to try and write about. But think of what the papers might mean in these terms. Should a practice, with or without an individual solicitor, be able to be taken to the Discipline Tribunal, if inadequate systems lead to breaches of the rules? Should the Society be able to lay down basic criteria that proposed startup practices have to meet? Should a portion of the practising certificate fee be levied on legal practices instead? And should we restate the practice rules so that you have to focus on outcomes, and standards to be adopted in achieving these, rather than a strict list of dos and don'ts?
This last question, the subject of the second paper, is probably the most difficult one. It need not depend on progress on entity regulation. It is the approach now followed by the Solicitors Regulatory Authority south of the border. One important question, however, is whether it could be put into practice without the complexity of the current SRA handbook.
Close consideration needs to be given to whether the claimed benefits of outcomes-focused regulation, in simplifying some of the rules and allowing solicitors a degree of flexibility as to how they best serve their clients, are worth the uncertainty caused by moving away from clear prescriptive rules. It does appear that time has to be invested in practice systems in order to derive the benefits – is it worth it?
The two papers are only the first stage. They could be the last stage if there is a clear message from the profession that either or both of them are not wanted. They are short and take only a few minutes to read. But they are important, and the Society is waiting to hear whether it should take them further. Don't say you weren't told.