I implore all fellow solicitors in Scotland to participate in the forthcoming referenda and Special General Meeting, and to support the resolution of the Scottish Law Agents’ Society which seeks to send a clear message to the Scottish Parliament that external ownership of law firms in Scotland is wholly incompatible with any reasonable notion of an independent legal profession – which as we all know is fundamental for the preservation of a genuinely democratic society subscribing to the rule of law.
I would respectfully urge everyone to consider the following points:
1. The Scottish Government asked the legal profession to give a lead. The profession are now doing so, having woken up to the real ramifications of the bill.
For whatever reason the Scottish Government appear to have been persuaded that if they do not proceed with the bill, the “big firms” will up sticks and move south and that this would have deleterious impact on the Scottish economy. In my view neither scenario is likely. It seems clear to me that the big push for all of this has come from the large commercial firms in Scotland. (See point 3 below.)
2. The Law Society of Scotland’s policy paper was published in April 2008 and approved at an AGM the following month (22 May). The timescale for detailed consultation was wholly inadequate. It is accepted that there was prior consultation from November 2007 through to the end of January 2008. There were 90-odd responses to the Society's consultation but I am not aware that these responses were ever published. My clear impression from listening at and participating in recent debates is that these responses did not demonstrate a majority view in favour of ABS.
3. In any event proxies obtained by the large commercial firms (especially the “big four”) essentially carried the vote at the AGM.
4. During recent debates at least one of the big four (Dundas & Wilson) have made their position clear via Alan Campbell and David Hardie. At the RFPG debate earlier this month I noted Alan to say “my business will come before this profession”. At the recent WS debate, David’s focus seemed to me to be on the solicitor as the man/woman of business rather than as an officer of the court. While I fully respect the D&W view as a sincere one, I find, no matter how much I reflect, that as an officer of the court I cannot agree with it.
5. In my view genuine transparent independence is critical. Such independence must be equivalent to exemption from external control or support. Such independence is fundamental to a democratic society which seeks to subscribe to the rule of law. Such independence is in the public interest. The Society policy “camp” appear to me to pay lip service to independence. The bill seems to me to adopt a similar position. Section 2, which seeks to set out professional principles governing persons providing legal services, states that such persons shall “act with independence and integrity”. Purporting to act with independence in a scenario where a law firm is totally owned and controlled by external investors can never amount to independence. Being de facto independent and seeking to act with independence are two very different things. The need for a genuine independent profession is obviously of critical importance for lawyers who provide legal services to the public at large, compared to an employed in-house lawyer whose client is the employer.
In the same way that a free democratic society subscribing to the rule of law requires an independent judiciary, so also must the legal profession be independent. Why? Because judges are lawyers and members of our profession. Judges are not appointed from other professions. It is of course an obvious and fundamental point, but given the importance of this debate it has to be reinforced. The legal profession is different from other professions. Because we are an extension of the court, that is why we have to respect the client’s right to legal professional privilege when they consult us. Such privilege is a fundamental protection for liberty. It must not be diluted or obscured until it is eventually removed completely. The introduction of ABS creates doubts surrounding a client’s right to legal professional privilege. Tinkering with such a fundamental right could have serious (and perhaps unforeseen) consequences for the rule of law.
6. The “Which?” super-complaint to the OFT seems to have triggered the push for ABS in Scotland. The complaint seems to have been the germ that has the potential for killing off a genuine legal profession in Scotland, and indeed Scots law. The Which/OFT contention seems to be that lawyers enjoy a “monopoly”. The unique position of a solicitor in Scotland could theoretically mean that he or she has a “monopoly” of the solicitor/client relationship (conferring the unique right of legal professional privilege). Of course brain surgeons also enjoy a monopoly in brain surgery. I do not think more needs to be said on this point!
7. The main commercial firms in Scotland seem to want ABS because firms in England & Wales with whom they seek to compete can attract outside capital. We must not slavishly follow England on this. The roots of our mixed system have far more in common with continental Europe than with the English common law system. As Walter Semple has highlighted, there is no demand in Europe or the USA for any of this. As I understand the position it is only in England & Wales (including the New South bit in Australia!) that there has been a real desire to go down the ABS route.
As a reparation lawyer and an active member of the Forum of Insurance Lawyers (FOIL) I have regular meetings with law firms in England & Wales. The Conditional Fee Agreement (or should that be “Can’t Fail Agreement"!) model of funding reparation claims in England & Wales has, so far as I can seem, been an unmitigated disaster. It has led to serious fraudulent activity (e.g. staged accidents, phantom claimants, corrupt hiring companies, referral fees, i.e. buying of work) by those who want ladlefuls of the additional pool of money which sloshes around as a consequence of additional success fees being payable by the compensator over and above the (very high) normal fees/costs. This of course compares and contrasts with the Scottish system whereby solicitors can enter into a speculative fee charging agreement with the client with any chargeable success fee being paid for by the client. The courts in England & Wales have been forced to use large amounts of precious judicial time with satellite litigation arguing about the level of success fees. Solicitors have evolved in England & Wales whose specialist subjects are “costs” and “fraud”!
Lord Justice Jackson has recently reported on all of this. I would commend his report to all of us in Scotland, if for no other reason to make us appreciate that our system has much to commend it. I firmly believe that the reputation of English law and the English legal system has been irreversibly tarnished by the activities which have been carried out following the introduction of CFAs during the last 10 years or so.
ABS were introduced in England & Wales following Clementi and the Legal Services Act of 2007. I believe that avarice has been at the heart of the motive for pushing through the introduction of ABS in England & Wales. This was also, I believe, the underlying motive for the introduction of CFAs. England in general, and London in particular, has justifiably enjoyed a reputation for justice and fairness in its legal system. I believe that reputation to have been severely damaged. This damage has of course been compounded by the collapse of the world financial markets with London’s reputation taking a pounding. In my view the English legal and financial systems have not exactly been a beacon of light in recent years. They are certainly not examples which should be followed.
8. I believe we should be demonstrating to the world that Scotland has a genuine independent legal profession with talent, resources and ability capable of resolving disputes fairly, speedily, effectively and at proportionate cost. I believe we could attract work from other jurisdictions if over the next few years we can implement the Gill reforms.
As an aside, I understand that Dr Eric Clive has recently completed a draft codification of the law of contract for Europe. My impression is that he drew heavily on Scots law for his model. We should be pushing Scots law rather than selling the family silver, or perhaps killing it off altogether.
9. There is a very serious risk that if ABS are allowed in Scotland, large English organisations will move into Scotland and hoover up the profitable work. This in turn could seriously endanger the survival of Scots law.
10. The bill will allow licensed legal services providers to flood the market with “designated persons” purporting to carry out legal services. I cannot see any requirement in the bill for such persons to undergo any form of training. There is a wooden and weak provision in section 2 that persons providing legal services should “maintain good standards of work” – what does that mean (if anything)?
11. There is a further danger to the independence of the solicitors' profession in Scotland under sections 92 and 93 of the bill. These deal with membership of the Society's Council and the proposed regulatory committee of the Council. It seems to me that the pre-existing tension involved in the duties of the Council under section 1 of the 1980 Act (to promote simultaneously the interests of the solicitors' profession in Scotland and the public interest in relation to the profession – which some might say has hitherto been more theoretical than real) is compounded under the new regulatory regime proposed in the bill. One obvious and basic problem is this. How can the Society on the one hand promote the interests of the solicitors' profession in Scotland, while on the other issue licences to legal services providers who would compete with solicitors? In that scenario the Society would be like a jockey attempting to ride two horses going in opposite directions at the same time. It would be inevitable that the jockey would fall off and probably sustain serious injury in the process. I fear that the same fate could await the Society.
Could all Scottish solicitors take the morning off on Thursday and head for Murrayfield? As I dictate this, a “Murrayfield march” has a certain ring to it. My plea to all solicitors in Scotland is to try to make every effort to attend the SGM on Thursday so that a full and reasoned debate can take place on the retention of the single most important measure of a free democratic society subscribing to the rule of law, namely, a truly independent legal profession. I would urge every solicitor in Scotland to use their vote in the forthcoming referendum. If you cannot attend the SGM at Murrayfield in person, at the very least please ensure your view is taken into account by granting a proxy to a solicitor who will be attending and who shares your view.
I recall the Society’s very successful campaign some years ago using the slogan “It's never too early to call your solicitor”. My urgent message to all solicitors in Scotland is this – It is not too late for the legal profession in Scotland to send a clear message to Holyrood that:
1. A genuinely independent legal profession is the bulwark for safeguarding individual freedom;
2. External ownership of law firms is wholly incompatible with any reasonable notion of an independent legal profession;
3. The independence of the legal profession in Scotland will be severely compromised by the provisions in the bill dealing with the Society’s representative and regulatory functions; and
4. The bill should be completely withdrawn and a fresh approach taken (a) for ensuring the preservation of genuinely independent law firms in Scotland while creating opportunities for such firms to flourish and compete in wider markets; and (b) to review and modernise the structure for regulating and promoting the interests of solicitors in Scotland.
I look forward to seeing you at Murrayfield on Thursday!Gilbert Anderson, Andersons Solicitors LLP, Glasgow and Edinburgh Like to comment on this article? Please use the box below. Comments will be checked and then put live.