Democracy is fine, as long as it’s not for those who might just be able to vote you out of office – the typical fear of many a dictator no doubt … and, as it would seem, the Scottish legal profession’s governing body – the Law Society of Scotland.
In a typical show of arrogance and lack of respect for even it’s own membership, this week has seen the very idea of ‘one member one vote’ floated in the national media, soon to be followed by wider discussion (albeit the Law Society’s own special version of ‘restricted discussion’) of solicitors voting rights as the debate goes on.
Do as I say but not as I do – and remember to pay your subscriptions and Professional Indemnity Insurance Premiums, has been the typical cry from the Law Society’s Drumsheugh Gardens Headquarters in Edinburgh for many years now – keeping individuals such as Chief Executive Douglas Mill, Director of Regulation Philip Yelland (who had to change his own title from “Director of Client Relations”, because he has led the profession into the worst position in terms of Client Relations in it’s entire history), Committee luminaries such as James Ness, and other ‘honourable’ colleagues in their accustomed, but undeserved positions of power & influence over the policy of Scotland’s entire legal profession. Let’s also not forget the armies of crooked lawyers, too numerous to mention this triumvirate have kept in practicing certificates too … at the expense of many ruined clients.
However, since last year’s terrible performance by the Law Society, which set itself wholly against the public and even the Scottish Executive & Parliament by threatening to kill off complaints reforming legislation via the Courts, which was long sought by many to improve client rights in complaints & claims matters, the wheels of the Law Society’s control freakery have decidedly started to come off – and not before time too.
This year has seen the assent into law of the Legal Profession & Legal Aid (Scotland) Act 2007, despite the long battle by the Law Society and it’s leadership to see it fail.
This year has also seen consumer organisations group together, and generate what became known as the Which? “super complaint” to the Office of Fair Trading, arguing for reform against the monopoly the Law Society of Scotland holds over the legal services market – where if you require legal services, or access to the courts, for the main you have to use either a solicitor or advocate.
The culmination of the OFT’s consideration of the Which? “super complaint” was that there is indeed a monopoly on legal services in Scotland, and that the market should be open up to competition as per the reforms suggested to the Scottish Government, which are being worked on for a response
Predictably, the Law Society of Scotland reacted with it’s own ideas, and tugged the ear of the Justice Secretary over the lawyers nightmare of implementation of Clementi style reforms of England & Wales coming to Scotland.
If the proposed access to legal services reforms go ahead, lawyers lose their monopoly on legal services, and you can go to a local supermarket to see an off the shelf legal representative, who may only charge you £20 to handle an item of advice which a solicitor member of the Law Society can currently charge you £150 +VAT … and of course, currently, you don’t have anywhere else to go to get that legal advice other than a solicitors office … so, as is plain for all to see … lawyers do not want to give that up.
The Law Society, not to be outdone by the OFT, the various consumer organisations, and campaigners all calling for reform, came up with a new proposal to keep control of access to legal services, this time, via a not so obvious method.
Instead of controlling access to justice by way of forcing you to go to see a Law Society of Scotland solicitor or member of the Faculty of Advocates,and pay the earth, for what are claimed to be ‘quality legal services’ (the same quality legal services which have been generating 5000 plus complaints a year against Scotland’s 9,500 solicitors for over a decade), the Law Society of Scotland wants a new method of controlling your access to justice by way of controlling who actually qualifies to be a legal representative in the legal services market, post reform.
This of course, should not be allowed, and based on the failure of the Law Society of Scotland over the course of it’s history to protect both the rights of the solicitor and the interests of the client at the same time, while also acting as the profession’s self regulator of complaints, cannot be allowed.
Douglas Mill, and the leadership of the Law Society, do not accept the battle is over for control over legal services, as the proposed remit of the approaching Law Society Conference titled : “The public interest – delivering Scottish legal services”, to be held in the National Gallery of Scotland on September 28 2007.
I covered issues relating to the approaching Conference in an earlier article, where Douglas Mill himself restricted to a large degree ideas which should be put forward in the approaching debate. Mr Mill also reminded everyone that while issues could be ‘debated’ – He would have to retain power over who would actually enter the legal services market, with the following quote “most would agree that it is perfectly acceptable – even welcome – for others to compete with solicitors for business, but not to compete as solicitors.”
Douglas Mill’s efforts to generate a two tier system of legal representation, via further control by the Law Society of Scotland are most certainly not in the public interest – not is his continuation as Chief Executive of the Law Society of Scotland.
Mr Mill has failed in his term at the Law Society to deliver quality, trustworthy, accountable & transparent legal services to the public, and has led the Scottish legal profession into disaster, with solicitors now commonly ranked alongside rapists & pedophiles in terms of public disrespect … Those, are Mr Mill’s gifts to his colleagues .. with Mr Philip Yelland’s reign over Client Relations not that far behind.
It is not in the public interest to have a legal profession widely perceived to be corrupt in it’s regulation of it’s own members, widely known to be monopolistic in it’s control of the legal services market, and widely known to meddle in politics – wholly against the public interest whenever it suits. The Law Society of Scotland, has demonstrated these charges amply over the years, under the reign of the present leadership.
If the membership – the solicitors up and down Scotland who claim to be honourable, trustworthy and to want to operate in the public interest and the interest of the law itself, want to truly clean up their profession, they need to stand up now and be counted – as for their vote to bring the changes necessary, clean up their mistakes of the past, and give Scotland the trustworthy, accountable, transparent, and yes, friendly legal services which the clients and the public of Scotland deserve.
Oh wait a moment, I’ve been saying that for awhile .. and what should appear but an article in the Scotsman suggesting the possibility of that very thing … a vote …
Be honest, solicitors of Scotland, and do some good for yourselves and the country – Vote for a change and take back policy making from the Law Society of Scotland to the membership – and build a better legal services market for all – for your interest, for all our interest.
Articles follow from the Scotsman – on floating the idea of a vote for solicitors which needs to go much further than just appointing a figurehead President .. and an article from the Herald newspaper, on the Law Society’s continued resistance to opening up legal services …
SOLICITORS reading the latest edition of the Law Society of Scotland’s Journal could be forgiven for thinking that John MacKinnon, their newly departed president, had been feeling the pressure of the post. In what turned out to be his last column as president, his parting shot expressed his hope that solicitors should be taking their holidays.
“At the time of writing, the weather remains as fickle as might be expected from a Scottish summer,” he wrote. “That being so, I hope everyone is able to take a well-earned break and recharge their batteries for the months ahead.”
By the time the Journal dropped through letterboxes last week, MacKinnon had already stepped down, just three months into the job. Last Monday, it was announced he was resigning from the society’s council, citing the pressure of work at Brown and McRae, his small Fraserburgh-based firm.
MacKinnon’s sudden resignation has seen Richard Henderson, vice-president, who was next in line to take over as president, pick up the baton nine months early. At a council meeting last Friday, it was agreed Henderson will continue in that role until May 2009, while an election for a new vice-president will be held in October.
There is no question of the handover causing the running of the society to grind to a halt. But does it raise issues about its leadership? Has the role of president become too pressurised, particularly for solicitors from small, rural firms? And should it the wider membership of the society have a direct say in choosing who represents their interests?
According to the society, the president’s role is to act as a “figurehead”. In practice, however, the president has a wide range of duties – he or she is not only expected to chair council and general meetings, but also to work closely with the chief executive to agree objectives and priorities, help identify policy and strategic issues, and play a major role in communicating with the wider public, other professional bodies and politicians.
Before taking over as president in May, MacKinnon had served as vice-president for a year – – but that role is far less onerous.
Most, but not all, presidents have come from larger firms, arguably with more resources to cope with effectively losing a partner for a year, and usually based in or around Edinburgh. However, Caroline Flanagan, who took over as president in 2005, also came from a five-partner firm, albeit one based in Dunfermline.
Ironically, it is the survival of firms such as MacKinnon’s, particularly in more remote areas like Fraserburgh, that will be key to the ongoing debate about the advent of alternative business structures and their impact on access to justice.
Simple geography may be one major reason why Henderson had already been playing a greater than usual supporting role. Indeed, some senior figures in the profession had already been mistakenly referring to him as the “president” of the society before MacKinnon’s resignation.
It may also be a sign that the process of electing the president does not involve solicitors at a grassroots level. Currently the president and vice-president are elected by the society’s council, made up of 44 solicitors who have been elected to represent geographical “constituencies” and up to nine co-opted members, who are in-house lawyers.
The nominations and elections are usually held in November, with the results ratified in December and the new president and vice-president taking over in May each year. The vice-president goes on to become president and, according to latest figures from the society, the president is paid £80,000 a year, while the vice-president receives £40,000.
But one solicitor tells The Scotsman this process is undemocratic, particularly as Henderson, a retired solicitor to the Scottish Executive, is a co-opted, not elected, member.
“Scottish solicitors – 10,000 of us – were not consulted or given a vote,” he says. “Solicitors can vote for the appointment of a local solicitor to the council of the society but the choice of president and vice-president – who always takes over the following year – is dealt with behind closed doors. According to the Journal he was co-opted on to the council, which suggests he has even less of a mandate. What about one member, one vote?”
Any changes to the election process would require reform of the society’s constitution. The Scotsman understands the issue was last considered in the late 1980s. Douglas Connell, managing partner at Turcan Connell, says: “I have some sympathy with the idea that the governing body should select the person who is best suited to lead the profession. Given everything that has been happening and all the changes we have seen, I think it is time for a much more radical review of the role of the Law Society of Scotland and its governance.”
A society spokeswoman says: “The council has looked at the profession nominating a president and agreed that council members should continue to nominate the president and vice-president each year as the profession could feed into that process and express their views to their representative on council. If there is a view that the issue should be looked at again, then a motion can be raised by individual members, at the society’s annual general meeting or special general meeting in September, or through their elected representative on council.”
and now for the Herald article on legal services market reform, which puts the intentions of some firms, against those of the Law Society …
Magnus Swanson, chief executive of the Big Four law firm Maclay Murray & Spens, has weighed into the debate on deregulation of the legal profession. He says there is little point in the profession continuing to prevaricate on whether to introduce alternative business structures, as he believes they are already a fait accompli.
He told The Herald: “The horse has already bolted on alternative business structures – and this is pretty much what I’ll be telling the conference.”
He was referring to the Law Society’s conference, “The public interest – delivering Scottish legal services”, to be held in the National Gallery of Scotland on September 28.
Alternative business structures are alternatives to the traditional structures for law firms – whereby partners who are practising solicitors within a firm must own the equity and share the profits between them.
Alternative business structures are due to become possible from 2010 in England and Wales, where they are being ushered in by the Legal Services Bill, currently passing through both houses of parliament. This follows Sir David Clementi’s 2004 review of the legal services market.
The reforms are expected to help large law firms to raise money to fund their expansion or reward non-legal staff with equity stakes in their firms. They are expected to enable partners in large firms to make sizeable fortunes by selling out to, for example, investment banks and will also permit household names such as Tesco, Halifax and Norwich Union to compete with traditional solicitors’ firms by offering basic legal services such as conveyancing and will-writing.
However, alternative business structures may not see the light of day in Scotland partly because the lawyers’ self-regulatory body, the Law Society of Scotland, is unsure about how they might be regulated. Another of its fears is that smaller law firms across Scotland will be effectively wiped out when organisations such as Tesco start offering legal services.
Swanson said the Law Society of Scotland’s conference on alternative business structures should not bother to examine whether they are good thing or when they should be introduced in Scotland, but instead focus exclusively on “how we establish practical regulation to cope with alternative business structures”. This looks un- likely to be the case. Despite a recent warning from Justice Secretary Kenny MacAskill that the Scottish Executive wants the society to deliver “concrete proposals” at this event, the society continues to bill the gathering as a talking shop on the merits of alternative business structures.
In the August issue of its Journal, the Law Society of Scotland billed the conference as a “discussion forum”, offering its members the chance to air their views in wide-ranging debate on alternative business structures, including whether these should be introduced at all. Rather than suggest it will present concrete proposals at the event, the Law Society referred to having proposals at a “white paper” stage by December 31.
Douglas Mill, chief executive of the Law Society of Scotland, concedes he does not expect conference to reach any consensus.
He said: “We wouldn’t expect unanimity of view either within council or in the wider profession. High street firms will have a different perspective to big firms.”
Michael Clancy, the Law Society’s director of law reform, said: “The conference is the key in formulating ideas It’s an opportunity to have an educated level of debate, with representations from stakeholders, and to let different voices within the profession be heard.”
However, Swanson believes it would be wrong for Scottish-based law firms to be penalised through any failure to introduce alternative business structures. He said it would be “real shame” if firms that struggled to transform themselves into UK players in the past two decades – including Dundas & Wilson, Maclay Murray, McGrigors and Shepherd & Wedderburn – were forced to become English domiciled because of any intransigence from the executive and the Law Society.
Roddy Bruce, a partner at the leading corporate law firm Dickson Minto, which has offices in Edinburgh and London, said: “If (Clementi reforms) happen in England and give an advantage to English firms, then we would have to have the same treatment here.”
Alan Campbell, managing partner of Dundas & Wilson, has also said it would be a wasted opportunity for the Law Society to launch another “talking shop” on alternative business structures.
He recently said: “The Office of Fair Trading (in its response to Which?’s super-complaint) has effectively said to both the executive and the Law Society that they must up their game. However, they don’t really appear to have got the message yet.”