All our own fault?

I don’t expect the Journal of the Law Society of Scotland as a professional periodical to offer the mirth of Private Eye, Viz or the Sunday Times financial section, but I must confess to experiencing the occasional sense of gloom after reading our monthly magazine. There is rarely any material that assuages concern occasioned by the ongoing devaluation of the Scottish legal profession, both financially and in the currency of public respect and prestige.

It is no mystery that morale in the profession is at an all time low. Phrases such as “challenging times ahead” and “lawyers must adapt” appear with great regularity. Most lawyers appreciate the requirement to embrace technology (and with respect to Mr. Susskind, I do not believe that it was necessary to devote three pages and the front cover of the September issue to stress this point). The current predicament is not occasioned by any technological inadequacy, nor of the perceived threat of competition from China, Tesco or American ambulance-chasing megafirms.

In my view, the most relevant impediment to restoring the prestige of the Scottish solicitor is the Scottish solicitor. Unless certain issues are addressed, this decline will herald a new generation of lawyers whose professional standing will be reduced to that of pen pushing (sorry, keyboard wielding) public service clerks.

The abolition of the scale fee for conveyancing opened the door for the bucket shop merchant to secure the work at economically unviable levels. Such firms were invariably unable to provide the quality of service demanded by such an important legal process. Whilst not recommending the reintroduction of a prescribed limit (for fear of “cartel” charges by the tabloids), solicitors should not devalue themselves. A conveyancing transaction should be properly charged and senior partners of transgressor firms should be attached to the Drumsheugh Gardens fence to have their chops pelted with mushy tomatoes.

The structure of the Law Society of Scotland itself requires review. The introduction of a separate Complaints Commission was a most welcome development, but there remains a feeling of resentment amongst a significant segment of the profession due to perceived lack of support for honest members struggling to meet ever increasing demands imposed by an unsympathetic legislature (which I will come to shortly). The profession accepts the requirement to keep its house in order, and whilst dishonesty or flagrant disregard for regulations should be punished, many in Drumsheugh Gardens forget that the Society is the profession’s supporting body – might I suggest more trade union and less Gestapo?

I’ve written in the Journal about this before. When my own firm was struggling in 2006 to recruit a competent legal cashier, I suggested to the Society inspector poring over my monthly reconciliations that the Society might consider offering its support in cases of honest disorder. This, I opined, would not only generate income for the Society but assist members in honest difficulty. I would have been met with less incredulity had I asked the accountant to strip for an impromptu life drawing session.

Which brings me to the aforesaid Money Laundering Regulations. I recently returned to the profession after a five year break and was astonished by the increasing demands made upon conveyancers. In my first transaction after returning, I spent more resources satisfying draconian money laundering requirements than on what Professor John Sinclair referred to as “the stuff of conveyancing”. I accept the requirement to be vigilant against criminal activity, but remain aggravated, not only by the lack of remuneration for this unpaid quasi-government enforcement role, but by the fact that it is enforced with supernatural vigour (anyone for porridge at Her Majesty’s?) by the legal profession’s own personnel and at its own cost! Should the Government wish the support of the profession in this regard, there should be suitable financial remuneration, perhaps in the form of a tax allowance of some sort.

Separate representation. What a wonderful concept. I had rather thought that the vote was a formality, and was dumbfounded when I heard that the profession had voted against the whole lovely idea. Here was an opportunity presenting itself to remove the large target on the solicitor’s back. Robber lenders have built up a whole armoury to squeeze compensation from legal indemnity insurers, often on the basis of the most spurious whim, and all facilitated by the infamous CML Handbook.

No one has been able to afford any explanation as to why the current situation should continue, with the exception of some weak argument regarding delay in the conclusion of a missive. As I understand it, the conduct of lenders in recent years has prompted the insertion of a standard clause making the issue of loan papers a condition of the contract, so missives in effect remain unconcluded. Now that the opportunity to redress the balance has been wasted, lenders will be afforded the luxury of continuing to seek recourse against a weak legal profession for every conceivable loss.

If Scottish solicitors are to be charged with indifference in their dealings with heritable creditors, their relationship with the Scottish Legal Aid Board borders on the incredible. I have heard older practitioners express the view that had the Board conducted itself in the manner it now does 30 years ago, a significant number of them would have been given their jotters. Through a combination of inexplicable complacency bordering on appeasement, the Board’s beancounters have been allowed to ride roughshod over the interests of the profession and the public alike. Vast columns have been devoted to this ongoing dispute and I do not feel it necessary to resurrect the mess – suffice it to say that until a firmer line is taken, the abuse will continue.

Has there ever been a profession so adept at shooting themselves in the proverbial feet? Changes require to be made. I cannot help but think of the oft used expression of my ex-employer when as a trainee, I would be told on a regular basis, “Get it right!”

I repeat this message to the legal profession in Scotland, but would also add the following: "Before it’s too late.”