To take us forward

Together we stand

It is time to recognise that even in performing its regulatory functions, the Society is acting for all its members

There is a particular sort of Christian revivalist literature that almost celebrates the moral degeneracy of its narrator before announcing the personal transformation achieved by the miracle of revelation.

It does no credit to that tradition to attempt to adapt it, as some of my predecessors have done, to their relationship with the Law Society of Scotland, contrasting their one time wallowing in the darkness of day-to-day practice with their emergence into the light that accompanied their immersion in the Society’s affairs. The Society is no moral exemplar, let alone comparable to a spiritual experience. For those of us working daily in the law, it will always be, at best, a necessary burden. We should never lose sight, however, of the adjective “necessary”.

One simple example. I get as annoyed as anybody at the intrusion of the periodic Guarantee Fund inspection. I have no intention of stealing the clients’ money and I try, as far as possible, to obey every letter of the Accounts Rules. In case anyone doubted it, however, although I am an officer of the Society, I am in no sense exempt from the three-yearly visit. In consequence, I also am the invariable recipient of the post-inspection missive highlighting various failures of best intentioned practice and exhorting me to do better, under threat of unspecified but undoubtedly best avoided consequence.

Who are these people? Have they no grasp of the realities of practice? Who employed them and what is their mandate?

Actually we, all of us, the entire membership of the Law Society of Scotland, employ them, and the mandate they hold is that of all of us. The Guarantee Fund obligation is incumbent on every principal in private practice in Scotland. The actings of the dishonest or reckless solicitor end up resting on the door of each one of us, through either increased Guarantee Fund contributions or Master Policy premiums. The three-yearly inspection cannot unfortunately remove entirely the risk attached to that obligation, but the rules it enforces undoubtedly significantly reduce the risk to us all.

More importantly, they ensure that the general public and, crucially, the major lending institutions are prepared to entrust us with their money. Remove that safeguard against dishonesty, and the clients (especially those same lending institutions) will seek it in other ways, sounding almost certainly the death knell of small and medium sized private practice, and increased compliance costs elsewhere.

So while it might be too much to ask the membership to love the Guarantee Fund inspectors, cherish them, as they are as essential to our economic wellbeing as the most valued of our own direct employees.

It is often suggested, not least within our own ranks, that there is conflict between regulation and representation in the Society’s statutory roles. It would be fanciful to suggest that there is not sometimes a tension. In the end however it has to be understood that regulation is representation. The single most important marketing advantage enjoyed by every single solicitors’ firm in Scotland, whether an Edinburgh based mega-firm, competing globally with US or European practices, or a one-lawyer business in Cumbernauld competing, at best, with other solicitors’ businesses throughout Cumbernauld and, er, Kilsyth, is the underlying knowledge on the part of clients that they can deal with that firm on the basis of honesty and integrity, underpinned, if hopefully never required, by a robust system of regulation.

So, as the Society celebrates its 60th anniversary, let us appreciate what it has accomplished, and continues to accomplish, on a daily basis: a profession economically independent at every level; a profession equally independent from political and other Government interference; a profession with a respected role in Scottish public life, and a profession which, despite current adverse economic circumstances, remains confident of its future. Certainly, these are primarily the achievements of individual solicitors, but the Society is, in the end, no more than the expression of the collective will of us all.

The occasion, then, is not really happy birthday to the Society. It is, in reality, happy birthday to us all.

Onus of reform

Working in tandem, Government and the profession can create the conditions for future success

These are the most challenging times faced by the legal profession since I joined it almost 30 years ago – and perhaps since the Law Society of Scotland was founded in 1949. The Society has served solicitors and clients well. It is a changing profession facing difficult times, but we will get through it. The legal profession will have to change and adjust to be competitive and to serve courts and clients well.

The Scottish Government, working with the profession, is engaged in reforms which will have an equally profound impact on the legal profession and the justice system in the years to come. Some of these were in train before the economic downturn hit us – but they are equally important in the difficult circumstances we now face. The continuing vitality of the profession is hugely important to promoting sustainable growth and maintaining the institutional framework of our modern democracy.

The Scottish Government is doing all it can within its powers to stimulate the economy, but we know that the impact of the downturn has been severe for many firms. The profession and the Government must work together to modernise the regulation of legal business and to promote the profession and Scots law nationally and globally.

We aim to introduce legislation this year to open up the market in legal services. Allowing solicitors to join with others to provide legal services to third parties will give them an opportunity to increase efficiency, realise investment and create the potential to pass on savings to the consumer – a boon in the credit crunch. High street legal business might be transformed to allow the consumer to access several services under one roof, for instance where an accountant, a surveyor and a solicitor come together. It will help the development of specialists whose expertise will give competitive advantage. It may also allow legal services to be provided in out-of-the-way places through unconventional means, perhaps through innovative online and mobile phone developments.

None of this will come about because Government decrees it. It will depend on the imagination and initiative of the profession itself, but I am confident that we can create the conditions for a leap forward. Regulation will be robust to protect the profession’s core values and maintain its high standards, but will allow operational freedom to encourage better ways of delivery and wider access to justice.

The Government welcomes the Society’s plans, announced on 23 March, to reform its own governance arrangements, and is encouraged by its plans to allow a non-legal presence on Council. I have stressed to the office bearers my view that the balance of lay and legal members is not the only important issue – it is equally important that the Society is able to operate efficiently, nimbly and strategically. We also wish to see arrangements put in place for a clearer separation of the Society’s regulatory and representative functions.

The changes to the profession are taking place in the context of wider justice reform. Our reforms to summary criminal justice are bedding in, and we stand ready to act on two major reports due within weeks: Lord Gill’s report on the civil courts, and Lord Philip’s report on administrative justice and tribunals. We are taking forward proposals to strengthen alternative dispute resolution, including the Arbitration (Scotland) Bill and developing ideas for an Alternative Dispute Resolution Centre for Scotland.

The Society has a longstanding concern with access to justice – one of the main reasons for its creation was to administer the legal aid scheme. We share that concern, which is why we recently made substantial improvements to financial eligibility for civil legal aid. By more than doubling the disposable income limits we are enabling over 1 million more Scots to get subsidised advice and representation on their legal problems.

Of course, to ensure that the help is there, lawyers must be appropriately remunerated for providing these services. Improvements to civil legal aid fees have been long overdue and this administration is addressing that too, despite the challenging economic times.

In the last two years, I and my fellow ministers have worked closely with the Society on these issues and many others – from the establishment of the Scottish Legal Complaints Commission to considering how best to protect people facing repossession. The Society has always vigorously promoted its members’ interests, but has also been professional and constructive in its work with Government. Despite the difficulties, I believe the profession can be in good heart, for its future is in safe hands.

Out there and mixing it

More interaction with the public would do wonders for the image of the profession

The classic and overused caricature of the lawyer is dead. I am not sure if we can claim complete credit for this by our honest endeavours and successful results for clients: perhaps also we have been eclipsed by the banking profession. But the public profile of the solicitor has always been an ambiguous one – my oft-used quotesque saying is “all lawyers are sharks, but my lawyer is wonderful, he/she helped us so much in my recent purchase/divorce/son’s breach of the peace trial”.

Individually, solicitors are among the most trusted of professional service providers. Most of us are fairly modern, even high-tech in our businesses, and are normal mature citizens of town and county. Unlike advocates we do not wear strange clothing, and unlike judges we are not seen as remote from ordinary life.

So far so good. What I see as the negative is opportunity not fully taken. We need to get the word out there more actively and keep it going. Perhaps I have a skewed perspective on this as I have spend my whole career explaining the law, broadcasting and writing about it, and being answerable to various audiences both real and virtual. At its most basic, I see this interaction with the lay population as a fantastic marketing opportunity and have built my own firm on the back of being available to bridge the gap between the public and the law they must obey.

Most lawyers actually do this on a small scale, even if it is just by being a good guy at the golf club, or being in the local session of the Kirk, or a thousand other ways. In fact it is the exception that shows a bad face. Tabloids always label the rare crook or failure as “Top Lawyer X McY”, as an ironic sideswipe at the respect given to the body of the profession.

My passion, as a member of the Society’s Council, and of the Strategy Group within it, is to sell the profession to the nation and the world. Megalomania does not run in my family, but I have long come to the conclusion that we have a premier brand and a population already just about sold on the message where they are aware of it. I am no marketing guru, but this ain’t rocket science. Let’s not forget that there are sectors and dividing lines in the legal profession – a corporate lawyer in a big firm is selling something different from an in-house solicitor in a local authority or bank. But as we have agreed time after time in the Society, there is much more that binds us than separates us, and qualities like expertise, experience, trust, character, are uniform throughout the profession.

Indeed as a result of the property downturn, many solicitors are coming to the realisation that while they have not done certain kinds of work for some time, they have the right and the ability to re-tool for those areas of work not affected – or indeed, sadly enhanced – by the downturn. The badge and name of solicitor should be more prized than ever before.

Lawyers are not just the classic model of high street general practitioners. Indeed that model looked in danger of withering a little, before the present crisis. As well as giving the private sector a high profile, we should be highlighting the work done in advising government and local authority, corporate Scotland, the voluntary sector – we must strengthen the message that the whole nation is underpinned by a profession that is both essential and beneficial to its wellbeing.

A strong profession is good for a strong Scotland. By the Society and the profession getting involved in active marketing, advertising, publishing information, broadcasting and creating web content, by making sure our expertise is heard and acknowledged in the making of new law, by individually and collectively exemplifying the virtues of the profession, we can do good for ourselves and for those we act for and advise.

Trading beyond Scotland: A new landscape?

Whether within or beyond Scotland, legal firms will flourish if they understand and react to changes in their market

Eighteen months ago Scottish commercial legal services were gravitating towards financial services, public sector and infrastructure development. Oil and gas, life sciences, tourism, renewable energy and others all played their part and continue to do so, but with a population of just over 5 million, legal professionals in Scotland needed to punch above their weight and a vibrant financial services sector was helping them do so. Some commercial firms have over the last decade or so used this platform to extend their geographical reach, particularly by opening in London.

But things haven’t played out quite as expected. The collapse of our global financial systems very quickly made certainty a thing of the past – who would have predicted the downfall of Lehman Brothers, or that, closer to home, the Government would have to rescue totems such as RBS and HBOS?

In the face of full-scale recession, one fundamental remains unchanged. All businesses need markets and ones which they can penetrate. The issue now for every business is working out what has happened to its market and what that market now needs. Change brings new requirements, and the trick is to identify these and make sure your business proposition meets them.

Perhaps those wiser than me know what these needs are, but I think the jury is still out and the world has still to settle. But deleveraging is a must, as is the end of unthinking reliance on ratings, insurance and layered products. We are familiar with “know your customer” rules and we can perhaps anticipate a shift back to “know your asset”. Old fashioned due diligence may come back into vogue, and more intrusive regulation looks to be here with a vengeance.

For the astute, this change will bring with it opportunities of its own. Indeed those who grew their practices giving commercial advice to real businesses and on primary deals may be in their comfort zone if the world goes back to basics and stops overengineering itself.

As now, I am often asked to comment on cross-border implications. But there are none. The Scottish/English border has no relevance to how a legal business should deliver services, market itself, find new work or deliver great client care. The relevant question, given this or any change, is what has happened to the market and what is the likely type and scale of demand against which to set your business strategy?

As to whether or not the Scottish brand, as it were, has suffered as a result of recent events, I think it is too early to say. “Brand” means different things to different people, but at its heart is a simple question – will clients and prospects want to buy what you offer? Some commentators have suggested that the Scottish image is no longer helpful, and that our reputation has evaporated alongside prudence.

But we are a durable lot, used to hardship and reinventing ourselves. Whilst on the face of it we look to be tarnished, and political- and media-led portrayals of differences continue to distract, the simple questions remain around the likelihood and also the level of sales.

Ultimately that has nothing to do with whether a business is based in Scotland or England, but on the vibrancy of the market, how well businesses understand and penetrate it, and how well the services fit its requirements. Nothing has changed in that department and nothing ever will. Those of us that are quickest to understand and react will continue to flourish. But it is almost impossible to flourish in a stagnant market, and the priority for Scotland-based lawyers must be to re-evaluate their market and adapt their businesses accordingly.

We can still punch above our weight, but success can only be achieved by keeping a close eye on how the market develops and ensuring that our businesses are nimble enough to adapt. For now, at least, change is the only certainty. Businesses that can keep pace with this change will emerge stronger for it.

Reaching those in need

How can Scotland’s legal profession and laws better reach those in need?

At the recent Scottish Legal Awards, Lord Paddy Ashdown made a telling observation that reckless bankers and Al-Qaeda flourish because they operate at a global level which circumvents the nation state, a global environment where the rule of law is all too often absent.

Protecting the financial security of Scottish citizens will require the type of new international legal solutions advocated by Prime Minister Gordon Brown. And I would argue that our financial meltdown is proof beyond doubt that a consumerist approach to vital services is no longer sustainable. The proposed alternative business structures for our legal profession represent a consumerist approach which offers nothing for vulnerable citizens.

How then can Scotland’s legal profession and laws better reach those in need? This month’s changes to the civil legal aid system, while welcome, do almost nothing for the poorest members of our society. The lower income threshold has risen by a mere £199 per annum, so those on certain benefits or low incomes still have to pay contributions which they cannot afford whilst they are repaying rent arrears and other liabilities.

An obvious solution would be to raise the lower eligibility limit for civil legal aid, and for that matter shift all of the bands upwards. This would enable private practitioners to provide more access to civil justice. But more resources should be targeted to provide at least one community law centre in each local authority area. Not an organisation to compete with private practice, but rather a free professional legal resource that could target unmet legal need locally.

We need to start challenging the fact that too many of our laws and legal remedies are inaccessible, while too many of our public and private bodies ignore the law as a matter of course – and if most citizens have no real legal remedy, is it any wonder? We have too many paper rights and not enough real ones in Scotland.

For example, most social tenants cannot force their public landlords to carry out major repairs; most homeowners facing repossession don’t have the money to pay the Scottish Legal Aid Board to hire a lawyer; and our law on disability rights looks great on paper but how much difference has it made to people with significant impairments in real life?

Sometimes we can get so caught up in the process of law, we forget that the process is only there to deliver a solution for human beings, whether that be resolving conflict or disputes fairly, or righting the wrongs of companies, bodies or individuals. We need to do much more to develop accessible remedies and solutions. And we need to introduce proportionality of cost with the value of the dispute wherever possible.

I also believe we should be challenging the burgeoning and aggrandising of our Scottish Legal Aid Board. The Board has doubled in staff size and operational costs while its budget hasn’t moved much over the last decade. It is wrong in principle for the paymaster of legal services to become a key provider of those services. Increasingly, we are seeing this both in the criminal defence and civil law side of our profession.

This growth does not represent best value for clients in need, nor does it encourage innovation. For example, a sizeable chunk of the £3m going to the Board to help prevent homeowner repossession will be used by the Board to employ another team of its own solicitors. These solicitors will be subject to the same means testing rules which prevent homeowners being able to access legal representation. In England, money has been put into schemes where free representation is provided at the county court by solicitors.

So let’s redirect some of the Board’s self-funding or operational costs to the front line – let’s use this public money to create an independent community law centre in every local authority area across Scotland. A centre that doesn’t have to means test, and a centre that can target the unmet legal needs of the most vulnerable of our citizens at a local level.