I am writing in my capacity as Council member of the Law Society of Scotland and Chairman of the In-house Lawyers Group.
Many of us are concerned about the possible introduction of alternative business structures (ABS). ABS will come with both opportunities and threats. The Law Society of Scotland law reform team is working hard to persuade the Scottish Government team to introduce appropriate safeguards to reduce the threats to the profession. Like Cameron Ritchie, the Vice President-elect, I support the introduction of ABS on the proviso that control of these entities rests in the hands of duly qualified solicitors, with external funding coming from approved sources.
Independence and external funding
It is interesting that Mike Dailly of the Govan Law Centre sits in the camp opposing ABS, given that he is set up as a law firm which is also an externally funded operation appearing – on the face of it – to be an ABS in all but name.
It also interests me that one of the main reasons given for not supporting ABS put forward by Walter Semple and Catriona Walker relates to independence. They state inter alia in their article on the soi-disant “Justice for Scotland” website: “Independence: A lawyer employed by a non-lawyer does not become independent simply because a regulation says so.”
As an in-house lawyer – with a foot in both camps, as I am also a consultant in private practice – I find the view expressed by Mr Semple and Ms Walker to be extraordinary if not verging on the insulting. In-house solicitors are employed within the financial and commercial sectors, by government, local government, media and others because these entities require specialised, robust and independent legal advice which is properly focused to ensure the proper running and management of their businesses. In-house solicitors are in no way to be considered lacking in independence or legal acumen, and I trust that both Mr Semple and Ms Walker will reconsider their comments in this regard. There is neither evidence nor proof that employed solicitors are in any way more vulnerable to undue influence and pressure than those practising elsewhere within the profession.
The Society's role
The introduction of ABS – which I believe is inevitable – will bring challenges. I believe the Law Society of Scotland, if chosen as the ABS regulator – it is the preferred regulator for 80% of us who voted in the recent referendum – will strive to do a good job. I call on persons with ABS type experience such as Mike Dailly, who is a highly respected solicitor providing a much needed service in the west of Scotland, to take part in the work of the Society and bring the benefit of his experience to the table.
I should like to ask you as a professional to support the retention of the Law Society of Scotland as your professional body. I agree that the Society must recognise and value input from its constituent representative sectors, e.g. SOLAR, In-house Lawyers Group, bar associations, property centres, faculties, WS, SSC, specialist groups and others. I in fact believe that it already does. The Council of the Society and its many committees comprise solicitors and lay persons from every walk of legal and civic life. Without their energy and efforts, which do represent the views of a multi-faceted and vibrant profession and the diverse public whom we represent, civic Scotland would be much less well served, the public of Scotland would be less well served and the government of Scotland would be less well served.
The Law Society of Scotland is made up of all of us holding practising certificates. We are well respected, valued and influential. If the Society is destroyed by the actions of a disgruntled few, it will be to our detriment. We need to be united. We need to work together for the survival and preservation of the profession’s future. I challenge those people expressing their concerns to join in and make sure that the views of their sectors are properly aired and considered, to make sure that the people they represent are treated well and fairly, while recognising the aspirations and needs of other sectors within the profession and our duty to the public whom we serve.
Given there are diverse opinions and needs, let them be expressed not only internally but also to government and the public. The Law Society of Scotland can represent more than one view, and ways of carrying this out need to be discussed and carried forward.
Despite comments to the contrary, the Society has always offered places at the table to its members. However it cannot force those members to take part. Now is the time to make sure your sectoral representatives actually do join in, take part and represent you properly. They will be welcome, and their views will be respected and will be carried forward even as alternatives to mainstream views, despite claims to the contrary. The Society has been able to do so in respect of the in-house sector, which does not always hold the same views or interests as those in private practice. There is no reason why your interests cannot also be carried forward if your representatives come to the table.
Ten reasons to stay united
Unity is vital to the survival of the profession for the following reasons:
1. The Law Society of Scotland sets standards to which all solicitors should adhere, and determines admissions according to those standards; solicitors not adhering to these standards are swiftly brought to task.
2. The Law Society of Scotland sets levels and leads on education and training, and along with others provides excellent CPD.
3. The Law Society of Scotland professional practice helpline is a vital resource to solicitors in private practice and in-house, to prevent problems with compliance and prevent inappropriate pressure being applied.
4. The Master Policy which is negotiated by Law Society of Scotland on behalf of private practice enables many practitioners to practise without personal financial risk. Individually procured insurance would come in at too high a price for many in the profession. The Master Policy is paid for by all principals in private practice, but claims tend to come more from High Street practitioners. One only has to look at England & Wales, where Quinns who insured a sector of the English High Street has become insolvent. This probably means it would be even harder for a fragmented profession to find insurance for its various sectors in the future and will have severe implications for those practising south of the border.
5. Law reform, by which mechanism the professional body works using its collective expertise in Brussels, Westminster and Holyrood to identify and iron out problems in new law for the benefit of the public and solicitors.
6. If the Law Society of Scotland is fractured, would it be likely that all of you would wish to continue to hold a practising certificate? Probably not, unless it was a legal requirement for you so to do, as the badge of solicitor would be severely devalued. If the big firms were to look south to be regulated by the SRA, who would train the profession? A small number of Scottish lawyers would be trained by them; would they all require to hold practising certificates? The answer is no. Not unless they were operating in the reserved areas, some of which are already opening up to other providers, such as licensed conveyancing, wills and trusts work and certain court representation work.
The burden on the High Street would be crippling – how would one third of the profession pay for indemnity insurance (if an insurer could be found), and also fund the Guarantee Fund, which is paid for by all private principals but is used primarily to deal with very small firm dishonesty?
7. The part of the profession which is concerned with the issues of ABS is of course worried about its future. Its core business is probably still criminal and civil court work, conveyancing, wills and executries. Conveyancing began to change when registration of title came into being and eventually it is likely that domestic conveyancing and car sales will have almost an equivalence. Times are changing. It seems to have escaped the notice of those practitioners so against ABS that it would be possible for "Tesco" to set up an company even if it was not an LLP to carry out work as a licensed conveyancer or a wills and executry practice. This has not happened.
8. Fears are being expressed about pressures which could be brought to bear if firms were not wholly owned or funded by lawyers. Neither the in-house sector nor the law centres seem to be having problems with external funding. We only have to look to the High Street to see that pressures – financial and or client based – already bear significantly on that sector. These pressures do not appear to have the same effect on the wholly owned in-house sector or the partially funded law centres. The Society's regulatory role and professional representation and support service assists firms to deal with these pressures. Who would provide these services if there was no recognised professional body?
9. Change is frightening. However ABS can bring opportunities for new business models which could significantly benefit the High Street as well as big firms and local authorities. Let’s explore these possibilities instead of dismissing them out of hand.
10. I am concerned that certain of the Law Society of Scotland's detractors are either not aware of nor concerned with the unforeseen outcome of their actions, which could indeed be the destruction of the profession. We only have to look at the professional status of teachers, who similarly tore themselves apart in the 70s, to see a possible future.
I am proud to be a solicitor. I am doubly honoured to represent solicitors as a whole on the Council of the Law Society of Scotland and to be the chosen representative of in-house lawyers who comprise over a quarter of the profession. I can easily function as a lawyer without a practising certificate but I would no longer feel or even be part of a profession if the Society were to be destroyed. We are all going through a period of great change. I believe if we fight together under the aegis of the Law Society of Scotland for what we believe in, we will emerge as a stronger and more cohesive profession. But it's going to take real effort by us all.
Thank you for taking the time to read this.
Should you wish to discuss this letter with me, please do not hesitate to get in touch via email at email@example.com or through the Society.
Wishing you all the very best,Janet Hood, LLB, DipLP
Council Member of the Law Society of Scotland; Chairman, In-house Lawyers Group Like to comment on this article? Please use the box below. Comments will be checked and then put live.