A blurred vision

“A camel is a horse designed by a committee.” (Sir Alec Issigonis, designer of the original Mini)

It is a pity that Esther Roberton’s review of Scottish legal regulation is so long on assertions, and short on solutions.

Take the following: “There is a concern that Scotland is losing its share of the UK/Global legal market.” And later: “There is a sense of anxiety in some that the legal services market in Scotland may be in decline... a view that what is needed is strong leadership... and a shared vision for legal services in Scotland. I share that view... the current regulatory system is not sufficiently able to support a forward-looking, dynamic and innovative legal services sector of the future.”

Scotland may or may not be losing its share of the global legal market; Roberton offers no evidence. But either way, the major responsibility for market share, innovation and dynamism should not and does not rest with the Law Society of Scotland. The regulatory environment is important, but these matters are dictated primarily by two factors: the level of economic activity in the jurisdiction, and lawyers’ skill and entrepreneurial flair.

Scotland’s economic activity lags the rest of the UK. Last year, the Scottish economy grew by 0.8%, less than half the UK growth rate of 1.8%. The gap between the number of businesses created and the number failing each year shows Scotland has the lowest business growth rate in the UK. Add to this the deterrent effect of higher income taxes in Scotland for anyone earning £43,000 a year or more, and the baleful effect of LBTT on the middle-upper property market, and it is not hard to see why some lawyers may be less than fully occupied. It is disappointing that Roberton fails to join these neon-lit dots.

Further, with the exception of a few large firms, most of them Scottish arms of UK operations, the Scottish profession is not and never will be focused on winning a share of the “global legal market”. Most of its focus is local, whether “local” is defined as all of Scotland, or within a few miles of its front door. You may argue this shows a lack of vision, or that it just recognises reality, but you cannot lay responsibility at the door of the regulator. Want to build an innovative, dynamic, Scottish-based global practice? Go for it. Nothing and no one in Morrison Street is stopping you.

But whose leadership?

What is the regulator’s role in promoting the profession’s commercial success? My answer is “important, but limited”. Its fundamental contribution is to create public trust by ensuring that solicitors are properly qualified, behave in accordance with a robust code of conduct, are accountable in a fair, transparent and efficient process should they transgress, and ultimately that no member of the public suffers financial loss as a result of negligent or nefarious activity. It guides and educates. It may engage in useful pump-priming and lobbying. Beyond that, its responsibility is to leave solicitors alone to get on with running their businesses, enjoying the fruits and bearing the consequences of their decisions. To impose upon it major responsibility for law firms’ financial performance is ridiculous. To those complaining that “strong leadership” is needed, my respectful response is “Agreed, and they should show it.”

Roberton further asserts the existence of “concern that the power imbalance between client and provider is not improving”. I suspect most solicitors would respond, “Quite agree! It’s time we clawed some back!” The profession has never been more competitive, nor clients more demanding. Fees have never been under more pressure. There has never been less deference for all professions, which is a thoroughly good thing, but we should recognise it.

The observation clashes with her acknowledgment elsewhere that “there is little evidence of wrongdoing in the current model”. The Society is the first to say that there is room for improvement and change is necessary, but the words “bathwater” and “baby” come very much to mind. On p 11 of her report, Roberton identifies the need for more research on “current consumer experiences of accessing and using legal services”. In response, she commissioned what she admits was a small and inadequate survey. But credit to her for not allowing anything so trivial as a lack of evidence to get in the way of her conclusions.

In her introduction, Roberton pronounces:  “I am ambitious and optimistic about the future of the legal services sector in Scotland.”  On that at least, we agree. But I am much less optimistic that her review will make any useful contribution to it.

All views expressed here are my own, and I have not discussed them with the Society.