The Firm Magazine / Scotsman Newspaper
Articles to Note
THE FOLLOWING TWO ITEMS APPEARED IN "THE FIRM"
MAGAZINE
NEWS
04 Dec 2009
Pirrie calls for regulatory overhaul and return to pre-Law
Society representation
The Chief Executive of the WS Society Robert Pirrie has proposed
a radical overhaul of the regulation and representation of the
solicitor branch of the profession as part of the WS Society's
response to the Legal Services Bill.
As the drive towards a consumer-friendly legal profession
proceeds, Pirrie has called for the profession to assert its
independence against increased government regulation as part of the
profession's development.
"It is right that the regulatory framework for legal services in
Scotland be brought up to date with 21st century thinking in terms
of commercial freedom and consumer choice. We have no quarrel with
that. Our concern is that, in implementing the changes, the Bill
increases government intervention in the Law Society of Scotland
because it regulates solicitors. That inevitably compromises the
independence of the Law Society if, as the Bill contemplates, it is
also supposed to represent solicitors," Pirrie said.
"Solicitors rightly pride themselves on independence. Consumers
should want them to. Anything that undermines the independence of
lawyers is bad for the public and bad for the reputation of
Scotland's legal system.
"If the government has the power to remove control of the Law
Society from solicitors, then so be it, but then everybody should
wish to see solicitors represented by a body which is independent
of the Law Society as regulator."
The WS Society has proposed a radical solution that would return
the representation of the solicitor branch to the hands of
solicitors without the involvement of the Law Society.
"The representation of solicitors should be left entirely to
solicitors themselves through a joint council comprising solicitor
bodies such as the WS Society. This would be a revival of the
Scottish model which existed before the Law Society of Scotland was
established (following what happened in England) after the Second
World War," the WS Society said in a statement.
"The WS points out that the distinctive Scottish model of an
independent legal profession dates back to the formation of the
College of Justice in 1532."
Earlier this year a motion at the Law Society AGM to cap the
practising certificate fee at £400 led to a fee reduction of £100
coming into effect, after concerns were expressed by members.
Yesterday the consumer lobby called for lay representation on
the Law Society Council to be increased to 50%.
The next edition of the Firm will carry a special feature
analysing whether the representation of the solicitors' profession
should be independent of the Law Society of Scotland.
NEWS
07 Dec 2009
Exclusive: President of Glasgow Bar Association calls
for referendum on Law Society representational role
John McGovern, the newly elected President of Glasgow Bar
Association has called for a full referendum of all solicitors to
determine whether the Law Society should continue in its
representational role for the solicitor branch.
McGovern says the Law Society failed to consult the profession
properly on its recent decision to reorganise its structure into a
board, with input from unelected lay members.
His call follows criticisms from The WS Society who have also
said the representation of solicitors should be returned to the
pre-1949 model and removed from the Law Society.
"It may have escaped your notice, but the Law Society of
Scotland is undergoing major change. Notice of the consultation
period for its new constitution was posted on its website on 12th
October. The consultation period ended on 5th November. In neither
of October's nor November's Journal was the consultation mentioned.
Nowhere. You probably missed it. I nearly did," McGovern told the
Firm.
"In March this year at a special meeting of the Council of the
LSS, it was "unanimously agreed" to establish a "Board" which is
now "the principal decision making body" of the Law Society. I had
to dig deep into the Law Society website to get this information.
It was worth the effort though, as it radically alters the shape of
our profession's future representation.
"The Council, according to the LSS, now has a "senatorial" role,
overseeing strategy but not making policy decisions. So, the
membership of the LSS, that is to say, you and I, can now only
elect representatives who will oversee strategy, but not make
decisions.
"If that doesn't seem right, then you should read the Legal
Services (Scotland) Bill published on 30th September. It was the
pending publication of this Bill that precipitated the Law
Society's constitutional changes. The Bill has been "welcomed" by
the Society as meeting its "agenda for change". Its publication
follows much uncertain debate within the profession about the
provision of ABS. In fact the only certainty about the debate was
the uncertainty of what ABS will mean for the profession.
"Section 92 of the Legal Services (Scotland) Bill allows the
Scottish Ministers to appoint whatever number of non solicitor
members to the Council of the Law Society as is "necessary". This
can be done by statutory instrument. I don't remember that
debate."
In an exclusive article to be published in the forthcoming
edition of The Firm, McGovern says the profession has collectively
weakened over the last twenty years, and the Law Society has
allowed itself to become controlled by the Scottish Government
"The halcyon days, when it was "never too early to call your
solicitor", have long gone. That confidently marketed statement,
although aesthetically unrewarding, was robust enough to articulate
a profession willing to stand up for itself and let the public know
what we did, and why we did it best," he says.
"Now, to understand much of the PR from Drumsheugh Gardens, a
degree in amateur corporate euphemism is required. In a recession.
Since devolution, respect for the profession has deteriorated to
the extent that Government control of our own regulation and
representation is about to be placed on the statute book."
In his call for a member referendum, McGovern argues that Law
Society have exceeded their powers and gone further than the
constitution of the Society entitles to in the creation of its new
structure.
"The constitutional status of the "Board" that the Law Society
agreed to create, at its special Council meeting in March, is
unclear. There is nothing I can find in the constitution of the Law
Society that allows the creation of this directly unelected yet, by
its own description, "major policy making Board"," he says.
"It's impossible to tell from the Law Society's own website
actually why this "Board" has been established other than Ian Smart
saying that the new "Board" allows the LSS to establish a "clear
path set, common understanding of the future and focus on the needs
of the profession and the public". (Your guess is as good as mine!)
The "Board" is reminiscent of a regime on the run: scared and
cornered, its "senatorial Council" being undermined by the pursuing
rebels. But here, the rebels are the Government of the day.
"I am now of the view that if solicitors are to have any control
over their profession in the future, there has to be a Solicitors'
Representative Association, independent of the Law Society."
Prior to the creation of the Law Society and the formal role of
"solicitor" in 1949, the legal profession in Scotland, comprising
writers and law agents, was regulated by collegiates such as the WS
Society and the Royal Faculty of Procurators. Some senior figures
in the profession have told the Firm privately that modeling the
Scottish Law Society on the English model has not proven
successful, given the inherent "schizophrenia" that comes with the
dual functions of representation and regulation. McGovern argues
that separating out the regulatory function from the representation
would also benefit Scots lawyers.
"In England, under the terms of the Legal Services Act 2007, the
conflicting "objects" of the Law Society were separated in
anticipation of the legal marketplace opening to non-solicitors,
and there is now a Solicitors Regulatory Authority, independent of
the Law Society. Its Board is split roughly two-thirds lawyers and
one-third members of the public (compare that with our own 50/50
regulatory split). The major difference, however, is that the SRA
in England regulates, but does not represent, the profession. So,
apart from having their own regulatory body, which has
proportionately more solicitors than ours, English solicitors also
have their own independent representative body made up entirely of
solicitors. Its name? The Law Society. What else?
"A browse of the English Law Society's website shows how a
robust organization, exclusively operated by solicitors, can
effectively represent its members. We, in Scotland, are in
lose-lose territory. By trying to balance the interests of the
public and the profession, the credibility and control of the LSS
have been lost.
"It is not, in my view, appropriate for the LSS to continue to
represent solicitors when it has ceded control of its Council to
the Government, and almost halved the democratic mandate of the
profession. Whilst I appreciate the arguments for non-solicitor
participation in our regulation, why should twenty per cent of the
Council that represents my professional interests be members of the
public? Why should solicitors elect only fifty eights per cent of
their representative body? Solicitors, and solicitors only, should
represent the professional interests of solicitors.
"In its sixtieth year, the Law Society has been forced into
semi-retirement, literally a "consultant" to its own governing
Council, having granted a power of attorney, through s.92, to the
public and the Scottish ministers. The Law Society of Scotland
hopes its new constitution will be ratified at the AGM in May 2010.
The Legal Services (Scotland) Bill is the biggest change to the
legal profession in a generation.
"I call upon the Law Society, not to embark on a barely
publicized three and a half week constitutional consultation
period, but to allow a referendum of all LSS members. A true
referendum: one solicitor, one vote; secret ballot; no proxies and
no three line whips from the big commercials. The question? Should
representation of the solicitors' profession be independent of the
Law Society of Scotland?"
McGovern's article can be read in full in the next edition of
the Firm.
THE FOLLOWING ARTICLE APPEARED IN "THE SCOTSMAN"
NEWSPAPER
Solicitor calls for vote on Law Society
split
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Published Date: 08 December 2009
By MARK SMITH
THE body that represents Scotland's lawyers is facing a damaging
split, with calls for a referendum among solicitors to form a
breakaway "trade union".
The Law Society of Scotland is currently undergoing the biggest
shake-up in its 60-year history, with a new constitution set to be
adopted. The society's powers to "police" the industry could also
be radically altered by reforms being put forward by
justice secretary Kenny MacAskill.
Now senior legal figures are campaigning for a new body to be
set up to represent solicitors, separate from the Law Society.
John McGovern, the newly elected president of Glasgow Bar
Association, has called for a full referendum of all solicitors to
determine whether the Law Society should continue in its
representative role.
"I am now of the view that, if solicitors are to have any
control over their profession in the future, there has to be a
Solicitors' Representative Association, independent of the Law
Society," he said.
"I call upon the Law Society to allow a referendum of all Law
Society of Scotland members - a true referendum: one solicitor, one
vote, secret ballot, no proxies and no three-line whips from the
big commercial law firms."
Mr McGovern went on: "The question? Should representation of the
solicitors' profession be independent of the Law Society of
Scotland?"
Mr McGovern claims that the legal profession has been
"downgraded" since devolution and solicitors need a more active
organisation to voice their concerns. He also claims the new Legal
Services Bill being brought forward by Mr MacAskill will allow
government ministers to appoint members of the Law Society's ruling
council - diluting the influence of solicitors.
He said the society would effectively be put into
"semi-retirement" if the bill was approved.
He said: "In its 60th year, the Law Society has been forced into
semi-retirement, literally a 'consultant' to its own governing
council, having granted a power of attorney to the public and the
Scottish ministers."
The Law Society of Scotland last night said a referendum of
members could go ahead if there was enough demand.
A spokeswoman said: "If a sufficient number of members place a
requisition for a referendum to take place, then the society would
present that to all 10,000 members."
Ian Smart, president of the Law Society, said solicitors would
be better served remaining within the current organisation.
He said: "Maintaining regulation and representation within one
organisation means the society is better able to represent the best
interests of its members, knowing that we are acting for a group
that is effectively regulated."
The outspoken comments by Mr McGovern came as MSPs at Holyrood
prepared to debate the Legal Services Bill today.
SHAKE-UP STARTS
THE biggest shake-up of the legal profession in 60 years begins
its journey through the Scottish Parliament today.
The Legal Services (Scotland) Bill is an attempt by justice
secretary Kenny MacAskill to bring the country's legal system into
the 21st century.
The main plank of the bill is a loosening of rules around
ownership of legal companies, allowing "Tesco-law" firms to be set
up - not necessarily owned by lawyers.
Currently in Scotland, only solicitors can own law firms and
form partnerships with other solicitors.
Law Society of Scotland president Ian Smart said: "This debate
needs the contribution of the entire profession as well as the
wider public."