Christine McLintock: Independence of legal profession under threat

Christine McLintock, former General Counsel of Pinsent Masons and member of the Roberton review panel, discusses Esther Roberton's report on the regulation of legal services.

Esther Roberton’s report on the regulation of legal services sparked much discussion within the legal profession. But its content should be of interest far beyond those who work within the legal sector.

If implemented it will have a direct impact on businesses and citizens across Scotland, whether as solicitors or consumers of legal services.

Serving on the review panel which sought to advise and support Esther in her 18 month review, I know there are many areas around the current regulatory system which require reform.

It was reassuring to see that many of the points made by the Law Society being adopted as recommendations in Esther Roberton’s report. After all, this process started, not because of a scandal or market failure but because the Law Society proactively pushed for change. 

However, like the Law Society, I cannot support the report’s primary recommendation to create a new, single regulator of legal services in Scotland.

This is not simply a new model for handling complaints, something which we believe can be easily streamlined and improved for all those involved. It would mean stripping all regulatory powers from Scottish solicitors’ professional body and also the Faculty of Advocates. It would mean transferring education and entry standards to the profession, setting practice and ethical standards, auditing and upholding financial and anti-money laundering compliance all to a new inexperienced public body. In short it means taking away the current holistic approach to professional regulation.

Despite proposing such a radical recommendation, there is little evidence within Esther’s report to support it. As she herself said, there is currently no great mischief in the regulatory system. Yet her overarching recommendation risks decreasing professional standards and increasing costs for consumers.  That cannot be right.

Moreover this change would threaten the independence of the legal profession – an essential component of democracy – by taking a step towards state regulation of lawyers.  It risks damaging our global standing and reputation – without any compelling basis for doing so.

The idea for a single regulatory body is not new. It is something that has been considered by many jurisdictions around the globe.  It is telling that it has not been adopted in full anywhere – in fact a similar model was recently rejected in Ireland.

Regulation of legal services in England and Wales is closest to what Esther proposes – although even there it has not gone this far, and further regulatory separation has been halted. There is little evidence after 10 years, that the experiment of the Solicitors’ Regulation Authority has been successful in bringing advantages to the consumer, improving quality, improving access to justice or improving economic success.  In fact, the latest reforms being pursued by the SRA against the wishes of both solicitors and consumers, risks weakening public protection and undermining confidence in the profession south of the border. 

I also question the suggestion in the report that a new regulator will stimulate growth in the legal services sector. The forces of globalisation, new technology and client demands will be what shape the future and we need a new regulatory framework which can accommodate this.

Throughout my time on the review panel, I pushed for an improved, modern system of effective co-regulation with consumer protection at its heart.  But we also need to protect what works.

The Law Society, through its Regulatory Committee which is 50% solicitor and lay person and headed by a non-solicitor, is fully responsible for regulation and acts independently of its Council. It means the professional body for Scottish solicitors maintains professional standards and protects consumer interests. It inspects law firms to safeguard client money and ensures access to the Client Protection Fund for those who fall victim to a solicitor’s dishonesty. It prosecutes serious cases of alleged misconduct before an independent discipline tribunal – with half of all cases taken to the tribunal resulting from proactive work by the Law Society.  

It also means there is a full understanding of the support and services needed to ensure that solicitors can meet the high standards required of them to meet the needs of their clients, whether they are a multi-national corporation or individuals living in communities across the country. Why would you casually throw away that experience and track record without good evidence for doing so?

We need improvements and modernisation to ensure we have a regulatory system that can continue to serve Scotland and its people well. We should not be tempted to throw the baby out with the bathwater or to simply follow what is happening south of the border. We deserve the right solution for Scotland.

This article first featured in The Scotsman on Monday 19 November 2018.