The role of solicitors at the heart of society, according to the Lord Justice Clerk of Scotland

The Rt Hon Lady Dorrian, Lord Justice Clerk of Scotland delivered a speech on the role of solicitors at the heart of society at the Law Society of Scotland annual conference 'Leading legal excellence: Succeeding at the heart of society'.

It is a very great pleasure to be invited to deliver this keynote address at the start of your 2016 conference.

As you know, the theme of “Leading Legal Excellence: Succeeding at the heart of Society”, has been chosen to showcase the role of solicitors at the heart of society. I know from the website that the intention is to draw together various key strands relating to this topic, and I expect to touch on those in due course, but the first thing which the key theme brought to my mind, and made me reflect upon, was the traditional role of the Scottish law agent as  a man (or woman) “person?” of business.

The concept of solicitors as men and women of business is readily familiar, but an authoritative definition is not easily found. Although the term might have seemed to have lost relevance since the latter part of the twentieth century, the frequency with which it appears in the nineteenth century case reports and, thus, its centrality to the role of solicitor in Scotland, is quite striking. Whether they be witnesses or parties to the cause, law agents were frequently designated solicitors and men of business.

My research found no treatise on the question why that might be, so I can but surmise. In the days before regulation, it may have been an aspirational expression of values by the profession, and it may not be entirely coincidental that it was born of the Victorian era with its new morality, social codes and booming businesses. In the reports and writings of the time the phrase “man of business” was often preceded by descriptors such as “respectable”, “zealous”, “shrewd”, “painstaking”, “able”, and “experienced”.  The local man of business would prepare your will, arrange your divorce, set up a trust deed for you, sell or buy your house, advise on your investments, give you tax advice and sit on the board of your local charity. The term certainly suggests that kind of omni-competence, but the concept also imports notions of public service, diligence, competence and worldly knowledge, responsibility, reliability, trustworthiness, and commerciality. These qualities are readily familiar in the principles of ethics and standards which govern our professional lives today, and they are essential to the central function which solicitors perform in an ethical and commercially successful society. As Lord Neuberger observed recently:

“ … the moral and the economic aspects of the rule of law involves people having rights and duties, and it is wrong in principle and unfair in practice to give … people rights and impose duties on them if they cannot get appropriate advice as to the existence and extent of such rights and duties, and cannot get proper representation in courts to fight for their rights or to defend themselves against claims”[1].  

Chief Justice Warren E Burger, of the United States Supreme Court, in a speech[2] on the role of lawyers in a modern society, pointed out:

“Lawyers and judges will be necessary components wherever men and women are gathered together in villages, towns, and cities where they must rub shoulders, share boundaries, and deal with each other daily. Lawyers will be necessary because, in their highest role, they are the healers of conflicts and they can provide the lubricants that permit the diverse parts of a social order to function with a minimum of friction.”

In his view, practice according to these great traditions showed the role of lawyer in its highest conception, and in that brief pen picture I immediately recognised the image of a Scottish solicitor as an important man or woman of business at the heart of the community.

Both as litigators and chamber practitioners, solicitors perform an essential function in upholding a vital element of the rule of law. Amidst the day-to-day stresses and concerns of the office, it can be easy to forget this: but it is important to remind ourselves that the professional lives of solicitors are not just about emerging legal markets, or fee targets, or settlements, or executions of deeds or court appearances.

In the speech to which I have referred, Chief Justice Burger noted that the literature of the English-speaking world is replete with slurs  on lawyers, typical of which is the Shakespearean statement that the first step in creating a decent society is "to kill all the lawyers".  Many of you will recall that one of the reasons for the perfection of Thomas More’s “Utopia” was that it was a land from which all lawyers were banished.

Chief Justice Burger thought to remind his audience therefore of the countless examples of courageous lawyers supporting the claims of people subject to oppression or abuse of governmental power, and that in every vindication of the rights of individuals, and in every advance of human liberty in our history, the key figures were  lawyers, who were willing to risk their professional reputations and their futures in pursuit of an ideal. We ourselves know that all over the world lawyers are upholding and defending the rule of law, fighting for human rights – and in many cases going to prison for it. The former President of the Law Society of England and Wales made a speech last September[3]  in which he quoted Sam Okudjetoa, a former President of the Law Society of Ghana, just such an individual imprisoned for defending the rule of law, who said that all lawyers must understand that they are not just business people, they  must think of themselves as instruments of justice.

At dinner last night with the Presidents of the UK Law Societies our discussion led to a sobering reflection of the extent to which lawyers around the world are struggling to make that a reality.

In our mature, stable, Western democracies, caught up with our own concerns, and business needs, it is easy to lose sight of this fundamental truth: that solicitors may fairly be described as gatekeepers to securing access to justice. Underlying everything that solicitors do is their essential role in providing expert, impartial and independent advice and representation. That is at the very heart of a successful, fair and civilised society.  And it is a role of ever greater need given the proliferation in volume and complexity of modern law.

The privileges of the profession

The functions of a solicitor are properly to be regarded as privileges. It is a privilege to conduct litigation on behalf of a client and to represent a client in court, as much as it is a privilege to give advice to a client on a legal question. These are privileges conferred on solicitors in recognition of the profession’s very high level of education and training, and the trust and faith placed in the profession that its members will discharge their functions properly and ethically. As the Law Society of Scotland recognises, ethical conduct and the highest of standards are therefore central to the continued success of the profession at the heart of Scottish society. For the profession to retain its privileges, it is essential that its members continue to uphold ethical rules and professional standards. Society must continue to be confident that the special trust and faith placed in the profession are warranted.

Legal professional privilege is a striking example of the high regard in which society holds the profession and the functions which its members perform. The idea that solicitors cannot be compelled to disclose their confidential communications with their clients is an essential feature of the proper functioning of a just and commercially successful society. It was well put in the nineteenth century:

            “The foundation of the rule … is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case”[4].

The “man or woman of business” concept is apt here, for the idea of legal professional privilege is based upon a concern for the proper administration of justice and the idea that confidential legal advice being subject to possible publicity might act as a check not only on the conduct of society’s personal concerns but its business affairs. It is a recognition that solicitors operate right at the heart of the most delicate affairs of society (business and personal) and that members of society should be able to conduct their legal affairs in the knowledge that confidential legal advice cannot be made public.

Solicitors are uniquely placed, given the combination of their legal expertise and proximity to clients and their businesses, to understand the pressing social, economic and business concerns of the day. In the course of their work, solicitors encounter the whole spectrum of activities of clients and the immediate issues of concern in society more broadly. In this way, solicitors are men and women of law and also men and women of business.

But by reason of this, solicitors occupy a special position to represent themselves and the interests of society more generally in shaping the course of the law as it develops.

The judiciary must be impartial,  and “above the fray”, but, provided that their advice to individual clients is impartial, solicitors are otherwise free to engage with the politics of the day.

We live in an age of revitalised political activism, and society is perhaps more than ever before engaged with politics and the constitutional future of Scotland and its society. Solicitors can offer a unique perspective in this debate and should be active in contributing, subject to professional and commercial limits, for the good of the country. In this charged political environment, there is a danger that the profession would lose relevance if its members did not see their role as engaged actors in the development of our country and our society. The public will want to take its advice from a profession which is seen to be engaged with the issues of the day.  

The composition of the profession: access and progression

Reflecting on the issues of the day, it is inescapable that there are challenges facing the future of the profession in relation to its composition, access to it, and progression within it. I don’t need to go over the details: the issues in relation to lack of diversity, the gender gap in pay and attainment, and the need to encourage into the profession those from a wider range of backgrounds are well known. These illustrate the concern that the profession should be truly representative of the society it serves. As you will be aware, the Law Society of Scotland has conducted research into the Profile of the Profession and is seeking to address these matters in several ways. The Society has published a series of Equality and Diversity guides, on creating opportunities within the profession and closing the gender gap; and on the important subject of creating more accessible services: these are documents of the highest quality, tackling serious issues seriously, and from a properly researched baseline. The Society is strongly to be commended for thepositive steps being taken to try to address these issues.

When I read this month’s “Journal” – not just because I am the cover girl, I do read it every month – I noted the President to say that the Society’s initiatives in this regard were viewed with envy by some other jurisdictions. If these initiatives actually bear fruit, that envy will prove to have been fully justified.

The benefit of putting issues of equality and diversity at the heart of the profession comes not just from doing the right thing. Public authorities translate their duty to promote equality into their procurement exercises, as do most not-for-profit organisations, and increasingly private companies or organisations are doing the same, expecting clear commitments to equality and diversity from those whom they engage professionally, and the observation of certain minimum standards. In the Journal, your President highlighted the role played in this regard in the United Stated by In-House lawyers, and increasingly they have a significant role to play in that regard in Scottish society.

The resilience of the profession

            The challenge of diversity is only one of many facing the profession. There are challenges from possible changes to the structure of the profession, and from an increasingly globalised world.

In a lecture to the Judicial Institute[5] earlier this summer, Lord Gill identified Scots law as a resilient, intellectually coherent, outward-looking, hybrid system which has shown itself to be adaptable, flexible and responsive to social change. The primary merit of a mixed system such as ours was that unlimited sources were available to it in the finding of practical and socially beneficial answers to contemporary legal problems, drawing on whatever sources of law are best able to help.  Our unique independent legal system was an expression of our nationhood, and the survival of Scots law was a cause worth fighting for. And yet, in his view:

“..if there is any threat to the survival of Scots law it will not come from a Westminster legislature; and it will certainly not come from the Supreme Court, which is scrupulous in its respect for the uniqueness of our system. It will come from changes in the structure and organisation of our profession.”

Central to this concern were the changes which were facing the Solicitors’ profession. The trend for firms based elsewhere to merge with, or take over, Scottish firms created a threat, since it may be thought that such firms would not see the survival of Scots Law as a separate and independent system to be an urgent, or even a relevant, priority. In addition, he expressed significant concerns about the issues which may be brought with the development of Alternative Business Structures.

In that speech I do not think he was seeking to indulge in what David Willets MP referred to as “bring-backery”, defined in the press^[6] as “that lazy reflex call for the restoration of practices, institutions and social systems whose time has passed”: after all, as he pointed out, the Law Society ofScotland hasimplemented the legislation making these structures possible by arrangements which he approved as Lord President. Rather he was seeking to emphasise that the survival and development of Scots Law lies squarely in the hands of the professions and the judiciary, and that in this changed professional landscape it will be for Scottish solicitors to evangelise about the benefits of a system that is at root based on principle and logic.His primary concern in relation to alternative business structures was in relation to the difficult questions of professional ethics which may ensue, which concern had been expressed also by Lord Neugerger[7].  These issues will require to be faced up to – and I do not underestimate the legitimacy of the concerns which have been expressed - but that is for another day. I have a different point to make – one which seeks to look at the possible opportunities which such structures may bring.

Time will tell to what extent alternative business structures become part of the established legal landscape. The benefits are, however, that once again clients may, as a matter of course, be able to attend the same office for all of their business needs. The development of new business structures may facilitate interaction between solicitors and other professionals in situations where advice is needed in fields other than the law. Generally there seems to be an assumption that Alternative BusinessStructures favour only large commercial firms, and are designed to assist such firms in improving their competitiveness in the UK, and even in the global, market. No doubt it may do so.

But if approached imaginatively there may be real opportunities for smaller and medium-sized firms to approach the way in which they do business in different and creative ways, enabling them to develop and maintain a competitive edge in their own markets. There may be potential for other benefits: in straightened financial times, associated with rising costs and falling profits, many firms start looking at the nature of the services they offer. There may be less of an inclination to do some of the important, but low financial value work which in more expansive times can be accommodated within the conventional business model. Public spending cuts, and legal aid cuts, may have a disproportionate effect in fields such as criminal law and family law. Significantly affected may be legal services in fields such as education, housing, charity law, mental health, and public law issues such as immigration and asylum. The opportunity for Alternative Business Structures – with the possibility for non-solicitor partners; and external investment – possibly from one of the increasing number of bodies looking for ethical investment opportunities – coupled with the technological advances which create opportunities for the development of online services, may provide Scottish solicitors with the chance to develop new and innovative ways of delivering legal services in these fields, whilst retaining the benefits to the public which stem from delivery of these services by those who are duly qualified, subject to professional ethics and obligations, properly regulated and fully insured.

This is where the Digital Strategy for Justice becomes important.  That vision for a modern, user-focussed justice system which uses digital technology to deliver fast and effective justice at proportionate cost is one which may be highly relevant for solicitors looking for new ways in which to deliver legal services in an efficient and cost-effective way. In November, SCTS will launch its Integrated Case Management System (ICMS), with an online portal designed to enable the replacement of paper processes with electronic case files and allow electronic lodging of all steps of process, with routine correspondence and issuing of court orders being carried out electronically. Procedural hearings will be conducted by video-conferencing. The launch should coincide with the introduction of  the new Simple Procedure Rules in November, and the scheme will be extended from the summer of 2017 to other simple claims, by which time it is envisaged that 60% of all civil business in the sheriff court will be managed electronically. The medium to long term aim is to proceed to wholly electronic processes in all courts, at all levels and in civil and criminal business. The introduction of active case management is designed to ensure that when evidential hearings do take place, they will be made effective, and not be postponed or adjourned because of insufficient preparation or late disclosure of information.

The reality is that technological innovation represents a huge opportunity:

• to make processes and procedures more efficient

• to make evidence more reliable and more readily available

• to make the experience of appearing in court less stressful and

• to make justice more accessible to a wider number of people

It may ultimately prove significant in this regard that one of the statutory regulatory objectives specified in the Legal Services (Scotland) Act 2010 Act is that of promoting access to justice. Bearing that objective in mind, coupled with the opportunities which technological advances can bring, smaller firms may yet find that there are attractive ways for them to utilise new business structures.Against the background of the increased volume and complexity of the law, and the opportunities for modern business structures, I have chosen to reflect upon the solicitor as a man or woman of business, as a concept that might perhaps be adapted as an aspirational model for the continued success of the solicitor branch of the profession in a rapidly changing world. True, today’s solicitors cannot (and should not try to) be omni-competent in the way of the law agent of old: as our society has become more sophisticated, more complex and more global, so has the law become much more sophisticated, certainly more complex, and clearly more global.  It has been essential for the profession to change and modernise accordingly, and to continue to do so; but it may be that the concept of the solicitor as aman or woman of business still has life in it, in the form of a revised and  revitalised model for the profession more broadly. It is, after all, consistent with the essential ethical requirements of the modern-day solicitor and, crucially, it acknowledges the importance of commerciality, an understanding of social and economic imperatives, resilience, adaptability, and knowledge of one’s client. It is consistent with the notion of the role of solicitors at the heart of society. And it is consistent with both the regulatory objectives and professional principles specified in the 2010 Act. It is in the recognition and anticipation of the way in which the need for legal services changes and develops - and in being alert to and serving the demands of their clients - that Scottish solicitors will continue to succeed at the heart of Scottish society.

Conclusion

An expert, independent solicitor branch of the profession is a precious asset and a vital component right at the very heart of a modern, civilised, commercially successful society[8]. In a modern world, it must be recognised that solicitor firms are business entities and it is for those who own and operate the business to determine the manner in which they are run. But we must always remember that solicitor firms are not just any old business: they occupy a complex position inthe balance of our legal system. Those who operate such firms –in whatever guise - must recognise the responsibility which that brings, most immediately, to their staff and clients, but also to society as a whole. The profession faces challenges, but it also faces opportunities which may enable it fully to discharge those responsibilities in an effective and modern way. Of course the challenges remain, but the profession has an inherent resilience and proven track record of responsiveness to social change such that these challenges will be overcome. The solicitor as a man or woman of business has a long pedigree and, through training and experience, it is built into the essence of Scottish solicitors. I have every confidence that it will continue to serve the profession well, enabling the profession in turn to succeed at the heart of Scottish society.