Serving solicitors in time of need

Despite being established for 15 years, it’s probably fair to say that while the Legal Defence Union has made the case for its existence, it has yet to fully engage the profession.

For Chairman Jim McCann a membership of around 1,000 remains “quite disappointing”, especially as he is certain the profession readily accepts the principle of the LDU.

“The value of independent advice at the early stage of a problem is now widely accepted.  We have however to set that against the fact that the majority of the profession have either positively decided not to join us, or at least have failed to follow through on a decision to become a member.”

Market research undertaken by the LDU suggests that while many firms recognise the value of good, quick advice, they felt it was unnecessary to pay to join the LDU in order to access that. Instead they would hope to use their own contacts, or utilise experience within their firm, or come to the known LDU advisers on a private client basis, rather than as paid-up members of the Union.

The research also identified between a quarter and a third of the profession who had accepted in principle that they should join, but had never got around to it.

“I would guess that it’s really to do with cost, what accountants call a ‘grudge purchase’. Lawyers will have to consider the cost of joining against the backdrop of their Law Society subscriptions and other costs. We believe that many are reluctantly driven to the view that since there is no compulsion to join, they will probably take the chance that they will not need help that year and opt not to pay the premium.”

In fact, McCann argues that in the event of a solicitor being complained against, or prosecuted before the Discipline Tribunal, running into the “angry judge syndrome”, or coming under any degree of Accounts rules or money laundering compliance scrutiny, the cost of LDU membership is quickly put into perspective.

“The cost of a complaint or a prosecution before the SSDT can be as high as £15,000. In one case the cost of securing the complete acquittal of a solicitor charged alongside a business client on a group of charges tried in the Sheriff Court under insolvency provisions, reached our policy limit of £50,000 per case.”

In terms of the LDU’s constitution, they have a wider remit than simply dealing with defence matters.

“The Union has evolved over the 15 years since formation into an organisation that provides advice and support to solicitors in their professional and business lives. There is however a widening gap between membership numbers and the degree of help we are being asked to give in a number of areas.”

The Union has recently appointed Ian Ferguson, a partner with Mitchells Roberton in Glasgow, as business development manager. Part of his remit is to encourage younger members to join the Union.

“Young people have tremendous enthusiasm and optimism. It’s easy to think ‘ It will  never happen to me’.

“But one knock can seriously affect confidence. Solicitors of all ages and degrees of experience can feel desperately alone when faced with a complaint or a prosecution and the thought that they may have failed. They may not be able to express their concerns to their colleagues at work.  An independent body like the LDU provides experienced advisers to whom any worried or distressed solicitor can turn for help and  assistance with the problem and to help them get back to full enjoyment of professional life. We also offer discounts, for example it would only cost  £25 for a Trainee to join and £60 for an employed solicitor. That is incredibly good value for knowing you have cover. Young solicitors may have less awareness of the accountability risks which the experienced agent will recognise and adapt to in daily life.

“We have however received the cry for help from some young solicitors in their first few months, and there are a few tragic cases of careers blighted before they have had a chance to develop by lack of sound advice. The LDU Advice Line is now published in the Blue and White Books and should be ideal if help is not easily available in the office”, said Ferguson.

Is there any element whereby joining betrays an element of self doubt about the competence of legal advice the solicitor offers?

“I think it is now regarded as entirely professional to turn up at a Guarantee Fund interview, for example, represented. It’s really not helpful to any regulatory body to have someone who may be frightened, nervous or not thinking straight. The idea that it might be some sort of implied confession of guilt to seek advice doesn’t have any relevance now,” said Jim McCann.

Solicitors in Ireland and England have been in touch, seeking to use the LDU as a model for setting up their own systems. Their motivation, as it was in Scotland, was the evidence of severe pressure on many practitioners, and in extreme cases the suicides of distressed solicitors, says McCann

“That was a factor in the 1980s when there were a number of tragic and high profile suicides of solicitors, often in cases where, although there were problems, they weren’t career threatening. It occurred to the LDU founder Paul Burns and the others who met to set up the Union, that with some early advice the disorder in these working lives could be rectified and maybe they wouldn’t have reached that awful predicament. Extreme distress can come to people whose professional life is threatened. It is particularly difficult for a trained professional adviser to accept that it is their own acts or omissions that have created the problems. So the cycle begins of doing something wrong, then covering it up. With the intervention of sound and expert advice that cycle can be broken.”

To that end, the Union has in recent years evolved the telephone advice line, which is also helpful for solicitors who have run into financial or business problems as well as facing complaints about professional conduct or services.

“I think much of the pessimism you hear from the profession derives from financial pressure rather than any lack of commitment to clients or lack of competence in the practice of the law. Lawyers are notoriously reticent when it comes to revealing what problems they might have, whether high overheads, or slow cash flow, or not knowing how well or how badly they are doing in comparison to others in similar sectors. Taking advice on financial matters can at least give you a view of whether, for example, you have over borrowed in comparison to similar sized firms.”

Inevitably perhaps, many of the Union’s constituents have been sole partner firms, but McCann is keen to stress that situations, such as partnership disputes, might mean that the interests of all partners in a firm might not coincide.

“Even if you are a well-capitalised firm, you have to allow for the fact that some day there may be an issue which involves a conflict of interest between the partner and the firm. The very power of the firm may then turn against the individual, for quite legitimate reasons, and in that situation the need for independent advice for that lawyer is crying out.”

McCann suggests that extending the Union’s role to being some sort of lobbying body for lawyers is within their constitution but is being considered with some care at present.

“We have to be careful to recognise that while we can speak for individual members or groups we do not actually have a brief from those members of the profession who have not joined. It has been put to us that we might make representations with regard to issues such as legal aid compliance or fees generally, but we don’t want to be seen in any way to stand in place of the Law Society.”

But McCann is keen to promote the profession as a whole.

“The fact is that Scottish solicitors perform to a very high standard in terms of service and conduct. That’s not just me saying that, but every poll since System 3 in the early 1980s has shown that in comparison to other professions, the rate of client satisfaction with lawyers is very healthy, particularly for those who have instructed solicitors on two or more occasions, and have come to understand and appreciate the unique commitment of the Scottish solicitor to the client’s case, in whatever field of activity.

“Most solicitors are aware they are achieving high standards and that can make it difficult selling an LDU membership based solely on the notion of getting them out of trouble.”