What kind of choice?

I have followed with interest the current “dual function" debate taking place in the profession as someone who, since 1997, in my field of practice (criminal law), has had the privilege, in various capacities, of representing the views of my fellow solicitors at national level.

In 1997 I was invited to meet Henry McLeish, the then Home Affairs Minister in the pre-devolution era, to discuss the proposed introduction of summary criminal legal aid fixed fees. At the same time I attended meetings to try and launch the Scottish Court Lawyers Association. This initiative failed. I also had the opportunity much later to help coordinate the nationwide action taken by solicitors in declining to accept instructions in “sex cases”, in response to the Scottish Executive refusing to meet the Law Society of Scotland to discuss solemn fees. There then followed, in 2006, concerted attempts to set up the Scottish Bar Association to provide nationwide representation for court solicitors in competition with the Society. This failed as well.

Since 2007, I have been a member of the Society's negotiating team meeting with the Scottish Government. As a result, as someone who has been involved in representation with and without the Law Society of Scotland, my views might help inform the current debate.

I should say at the outset that I believe the proposal to separate regulation from the promotion of solicitors' interests and representation to be ill conceived and flawed. This dual function is rooted in primary legislation, namely the Solicitors (Scotland) Act 1980. Therefore any change is not within the gift of the profession but at the behest of the legislature.

If solicitors lobbied for a separation of this dual role, one should not assume that the separation will be on the basis requested by the opponents of the present arrangements. Politicians are far more likely to be persuaded to allow “independent“ regulation of solicitors and let the profession “enjoy” trade union status, albeit in the form of a multitude of separate and competing voluntary groups under a proposed Joint National Council. I’d find it difficult to believe anyone, including the referendum requisitioners, seriously believed moving from self regulation to some other statutory basis to be desirable.

Further, one should not underestimate the flip side of the “unbearable tension” of the present dual role. In my capacity as a member of the team negotiating with the Government, it is more than useful to be able to present a position based not only on a professional interest but also a public interest. These interests coincide much more often than you might imagine.

However, let’s assume the requisitioners get their wish and the Law Society of Scotland is no longer responsible for representing and promoting the interests of solicitors. What at present does this role involve? In my experience it involves a committed professional staff backed up by a skilful use of the talents and goodwill of countless volunteer solicitors, motivated like myself not by, as has been suggested, a desire for patronage, but rather improving the often difficult circumstances in which we require to practise.

Indeed the Society’s professional practice team dealt with 15,000 emails and 8,000 telephone calls in 2008 from those seeking frontline support. In addition it organised 100 professional events with over 5,000 delegates attending. The education and training team had a slightly busier 2008 with 30,000 emails dealing primarily with the concerns of the next generation of solicitors. In the field of law reform the Society responded to more than 70 legislative consultations. Members of the GBA, amongst others, serve with distinction on the Criminal Law Committee which scrutinises proposed legislative change, and on Sheriff Principal Bowen’s committee currently reviewing sheriff court solemn practice.

From personal experience, if the requisitioners get their wish of a separation of functions, then I’d advise them to lure Michael Clancy (Head of Law Reform) onto whichever group they choose to join. He commands the trust and respect, irrespective of party affiliation, of legislators in both Westminster and Holyrood. To lure him might not be as difficult as it appears, as he’ll most likely along with other experienced staff have to be made redundant. Those who have requisitioned a referendum seeking the breakup of the Society’s present functions while at the same time seeking election to its Council, will if elected soon share, I suspect, the type of experience I have had since 2007.

In short, like any other organisation, the Law Society of Scotland is far from perfect, but unless there is a serious and credible alternative then it’s still the best show in town.

To suggest that a failure to separate functions will end the independence of the profession is protesting a little too much. The ABS debate has been stimulating and invigorating. What’s wrong with a continuation of the practice of non-solicitors bringing their skills, commitment and talents to the profession as no more than a fifth of the membership of our Council? We should be confident enough as a profession to welcome this interaction rather than running away from it. Indeed I note that the Scottish Law Agents Society, who continue to give the lead in challenging the Law Society of Scotland on the ABS debate, is conspicuously absent from the list of those requesting the second referendum. Is it fair to assume they do not view the issue in quite the stark terms set out in the requistioners' position paper?

Indeed the requisitioners are in fact predominantly members of the GBA, give or take Messrs Thompsons Solicitors and a few WS members (as opposed to the organisation itself). Again from personal experience as a member of the Law Society negotiating team, we have required to represent criminal lawyers in very difficult times without the talents of the GBA, who refuse to “engage” with the Government and take the view there is “no point” in even meeting the negotiating team. It would not be unduly cynical to view this requisition as part of their campaign of opposition which to date has involved industrial action, court action and a Special General Meeting of the Society. None of these measures were successful, and perhaps serve as a cautionary note to be careful what you vote for.

The earlier mentioned failure of attempts to set up national representative bodies in competition with the Law Society was not due to any lack of commitment and effort from the solicitors with whom I had the pleasure of working at the time. I remember often driving to Perth in the winter of 2006 to meet fellow travellers in a rent free room of the Perth Curling Ice Rink complex. Amongst many difficulties of finance, professional apathy from colleagues, and time, our attempts to frame a constitution floundered. Glasgow delegates and others, not unreasonably, had difficulty accepting that their Association might require to cede power to a new central organisation. Without real power, a central national organisation was in my view at the time, doomed to fail.

Whilst it’s all very well flagging up savings in fees paid to the Society if separation occurs, alternative representation to have even a fig leaf of professionalism will require an experienced staff, a media operation, convenient and appropriate premises and all the resources befitting what still is a prestigious and influential profession. Why on earth dismantle what is already there, with its built in economies of scale, to replace it with an alternative which has no more specification than a “Joint National Council”? I could be a little more blunt and say that I’ve been there and it doesn’t work!

I’m afraid it will take a lot more than exhortations of “CHOICE”, ”CHOOSE” and “FREEDOM” to persuade an educated electorate that what is proposed can be taken seriously.