Future present

“Lawyers may, in the past, have tended to be slightly conservative, perhaps more concerned with preserving their status than being vitally interested in the expansion of their functions; more defensive than aggressive; and always over-anxious lest any change should alter the character of the profession which they have chosen; a profession which has remained substantially unaffected by change over many generations. To be conservative and to resist change in the coming years will not be possible. Change may well be forced upon the profession from outside if not accepted from within.”

As the profession contemplates the impact of Clementi and the pressures for change which will affect the running of every practice in Scotland in the years ahead, the extract above could well have been taken from a commentary on the state of the profession in 2005. In fact, it is drawn from an article on the Future of the Profession written by the then Charles (since Sir Charles) Fraser in 1968.

It’s a remarkable document, written as the basis for a discussion of the Future of the Legal Profession at the Law Society of Scotland’s study weekend. At the time of writing, Charles Fraser was a partner in Burness. Later in his career he combined that role with a number of posts as chairman or non-executive director of companies such as United Biscuits, Scottish Media Group and Scottish Widows Fund.

Fraser’s 1968 prophecies included:

• A dramatic reduction in the fees earned for conveyancing
• Larger firms and increased specialisation
• More lawyers moving in-house to work for large corporations
• Specialisation in the Faculty of Advocates and an easier interchange between the two branches of the profession
• The impact of the computer on legal practice. (With hindsight, this seems obvious, but in 1968 it was surely radical to suggest “any consideration of the future impact of computers on the law must anticipate the dramatic changes in data processing machinery which will occur in the years immediately ahead”.)

Nearly 40 years on from the paper, Sir Charles believes he is too long retired from the profession to engage in any further soothsaying about its future. His recollection at the time of publication of the article is that it attracted little comment and stimulated no discussion.

But with gentle persuasion he is willing to make some predictions about the future of the modern profession – and one thought is that more firms will go supranational. “I pray we don’t end up like the accountants with six international firms and lots of small firms of not much consequence. I don’t think there is much more scope for mergers in Scotland. My advice to former colleagues has always been not to outgrow the business community they serve.”

He thinks that within the biggest firms specialisation has gone as far as it can before lawyers lose their identity and the lawyer entirely loses the badge of being a general man of business.

While acknowledging that the Law Society of Scotland does a fine job in difficult circumstances, he fears there may be a chasm now too big for the Society to bridge between the disciplining or educational needs of those operating in big firms and those operating in the small to medium sector.

“The profession is split like never before. I have no idea how the Society can serve Maclay Murray Spens and a one man band in Arbroath.

“At the end of the day the consumer is always right and the corporate clients and the wealthier private client have rarely been dissatisfied with the service they get. The problem lies with the average person who see the law as a self-indulgent, self-serving profession out to make as much money as it can.

“Maybe the public will want Tesco supplying people with legal services. It might be the big law firms will have to go it alone and call themselves something different. But there will always be boutiques where a talented man of high energy can make a good living.”

He voices concern that as a general rule of business, where decisions are made is where advice is sought, and decisions are now made at head office, often in London. The days when a bank manager in Oban could make significant business decisions are long gone.

“If I was 18 I’d do it all again”, says Sir Charles. “I thoroughly enjoyed it. I enjoyed every minute of it. Clients will come to you if you are fascinated by people. There are those who say the law would be great if it wasn’t for the clients. My view was that the law itself was boring and it was the clients who made it. If we always think what’s best for the client, the law firm will prosper.”

Roger Mackenzie is a trainee and a former Deputy Editor of the Journal

We asked our panel to follow Sir Charles and imagine what the profession might look like in 20 or 30 years. While none claimed to be able to emulate the radical foresight of Sir Charles’s vision of the future, their predictions make for enlightening, and occasionally alarming, reading

Alasdair Fleming, Managing Partner, Bishops, Glasgow

Going forward, Alasdair Fleming predicts Darwinism will determine which species of lawyer will survive.

“Those who adapt best to change will survive. Inevitably that means the biggest firms who have the resources to invest and so adapt. Small firms will remain under so much pressure, under more and more layers of regulations, such as we have seen with money laundering.”

A problem too in the future could be attracting quality candidates to be lawyers. A newly qualified lawyer will earn less than a plumber, so there could be a shortage of talent in the profession, predicts Fleming.

“One good thing is there are more women coming into the profession and that will change the dynamic; women have different ambitions, often their aspirations are different, they don’t all want to be the boss. This could change the profile of the profession for the better.”

Tied in to that is a new system Bishops has adopted for appraising partners. The arbitrary tallying of fees has gone, replaced by a structure where partners are appraised in different types of skills, such as managing people and generating new business, recognising those that work on the business, not just in the business.

For Fleming, the theme for the future must be adapt to change and innovate: information is so much more readily available you can’t kid people any more, he says. People expect a fast response and a high standard of communication, driven by technology.

“Firms will have to ask seriously, are we here to run a business or practise law? It will be important for firms to carry out market research and to speak to clients to assess and anticipate where the market is going next. The Scottish legal market has traditionally been conservative, but successful firms are always looking and asking what is the next move. Innovation is rare; solicitors in the past have always been slow to respond. Look at the example of the estate agency market, where especially in Glasgow, it was practically surrendered before GSPC got up and running. The profession has to be ready to ensure such mistakes are not repeated.”

John Elliot, Chairman, Lindsays, Edinburgh

Warming to Charles Fraser’s vision of how computers would transform legal practice, John Elliot anticipates “the laborious manual inputting of data will have to cease, or else the whole world will have to become typists”.

“Speech recognition will be the norm. There will be expert systems which not only tell us what the law is but how it might be applied in circumstances which we, the user, can define.”

Elliot longs for development and more widespread use of videoconferencing. “Think of the time saved in travel, not to mention the cost. Computers have to set us free and I can think of no better way than by shortening the working day.”

Like Charles Fraser in 1968, John Elliot mourns the passing of the “man of business” as lawyers became increasingly specialised. He sees no let up in the progress of “each of us knowing more and more about less and less”, adding: “This makes it the more critical that we are taught and reminded at every stage about the principles of our law.”

He predicts the number of in-house lawyers of all sorts will grow significantly. “One day we may mirror the accountancy profession in this. Much current ‘private work’ will be dealt with by institutions (employing lawyers) and by private firms offering, in the main, high-price, highly specialised services.”

There may still be a place for “men of business”, but it will become harder to practise in this way, because this generation of solicitors will have to nail their colours to a particular work-type mast.

“No longer will we be able to represent ourselves as omniscient from the day of qualification, to form a company on day one, carry out a divorce on day two and so on. The reality of specialisation and the need to prove competence will lead to post-qualification accreditation for most if not all solicitors. Why not ‘men of business’ accreditation?”

In the 1968 article, Sir Charles wrote: “There seems no reason why [solicitors] should not be allowed to assume partners from the other established professions. There are, of course, problems such as one of discipline. But such difficulties could be overcome.”

“Those who have observed my fruitless attempts to persuade the profession that there are opportunities in MDPs and (containable) threats will appreciate how much I agree”, says Elliot.

He has a dire prediction for legal aid practitioners. “Legal aid as we know it will change and the section of the profession that depends on it will have to find most of its work elsewhere. Society, rightly or wrongly, is growing weary of putting significant amounts of money into something which benefits two classes of people with which it has no sympathy. When faced with saving lives in hospital or saving someone from prison, society will inevitably choose the first.”

Contracting out the provision of services within the solicitor’s office will become commonplace. “Even now, a number of firms have contracted out their document movement and typing services. Provided it is correctly handled, this seems a sensible way for firms of solicitors to concentrate on what they do best – providing advice – rather than being in the business of typing/paper management.”

Finally, he expects the Society’s functions will be split and we shall have a regulator on the one hand and representative bodies on the other.

“That will be a severe strain on our ability to act as genuine professionals – acting first and foremost for clients before thinking of ourselves. Undoubtedly, the profession will survive. But it won’t half have to change.”

Alistair Morris, Managing Partner, Pagan Osborne

Alistair Morris’s vision is of a profession totally unrecognisable from that in existence now. In fact he suggests there will be no solicitor profession as we know it – the profession will polarise completely.

“There will be one arm of lawyers dealing with business affairs, broadly what we know as corporate, commercial, employment; and another type dealing with personal affairs, wills, executries, pensions, but not domestic conveyancing.”

When? It’s starting now, says Morris. “The pace is picking up, Clementi or whatever version we get here will speed it up and so will things like ARTL. Change always brings opportunity but firms who are not grasping the change will go out of business.”

Morris doesn’t envisage RAC or Tesco buying legal firms, nor does he foresee lawyers moving to work in-house for Tesco. Instead they will employ advanced IT and paralegals.

As part of that process, he expects the domestic conveyancing market will go completely from high street firms; the financial conglomerates will control the market and use their own panel solicitors. ARTL will remove the need for experienced, highly qualified lawyers.

“I still don’t think enough people are aware of what’s going on. We all used to see remortgage work but how much do we see now? The financial clout of the lenders sees it all go to panel firms.

“If the profession gives a good quality service then it may retain some share of the market place. The best deal is not necessarily the cheapest.”

He argues that as a microcosm of the profession, the Society’s desire to retain the status quo is not tenable. “It has to become the regulator any government would want, or stop being the regulator. It does regulate very well but the perception is there is a conflict.”

For Morris the future is here, and at Pagan Osborne they have been structuring themselves and offering themselves differently to clients – recognising that a strong relationship with clients is paramount. “We won’t win on price so we need to position ourselves in terms of service and quality, and move from being transaction focused to relationship focused.”

“In progressive firms you will find lots of non-lawyers. Lawyers didn’t go to university to become full time managers. Progressive firms realise lawyers can’t do it all; a firm needs to be run as a business and leave lawyers to do the legal work. The responsibilities on an equity partner are to be a good lawyer, business developer, accountant and people person. It’s rare to find someone with all these skills.”

Morris has observed that graduates and trainees have changed: they have usually had full time jobs to support them through university and are much more business-aware.

“The training still leaves a lot to be desired; much of what is taught in university is irrelevant for much of modern professional life. They need teaching in softer skills as well as black letter law, business development and people management.”

Ewan McIntyre, Head of Litigation Division, Morton Fraser

Ewan McIntyre argues that as lawyers we can’t predict the changes that will happen in technology – in any event, on the whole, the technology available is ahead of what clients want.

In the future, it may be the job of firms to educate clients as to what is possible rather than having change being client-driven, but generally there is a lag between what can be provided and what clients want.

“For example clients might have the facility to check the state of their transaction on an intranet but they often won’t have the time and will put their faith in the firm to produce the end result. Most firms will continue to be satisfied with striving to be early adopters rather than innovators in the use of IT.”

McIntyre envisages there will be even larger firms than exist now, with a greater number of national firms. Mid-sized firms will be squeezed, though there will still be room for those practising in niche areas.

“There will be providers of legal services we don’t know about, such as Tesco, and outside investment will be allowed in law firms. Firms such as Tesco will employ paralegals and the two to four-person firms will lose some of their traditional business. More areas of law will follow where commercial property is now; there is a lot of automation and lawyers are often left doing the dealmaking.”

McIntyre argues that lawyers continue to be “men of business”, trusted by clients to deal with very personal matters. “There will be further blurring of the boundaries between legal firms and their clients. Secondments and virtual secondments will become more common as businesses look to their legal advisers to provide support to help with their workflow. Firms will be expected to be able to free up solicitors to work with clients and this will suit bigger firms who will have the capacity and resources to free up personnel to meet that need. In essence there will be a greater emphasis on partnering.”

For lawyers, there will be a continued movement towards flexible and remote working. More work will go to specialist teams and clients may be unaware as to what work is subcontracted to another firm.

“Five or six years ago people would all have predicted MDPs, but recently the tide has been turning against this. If safeguards are in place the one stop shop may be sensible, but in reality for those instructing professionals it’s not that difficult to integrate the advice you get from your accountant with that provided by the lawyer.”