Justice for Scotland

In “The Times” newspaper on 28th January 2010, Lorna Jack, the Chief Executive of the Law Society of Scotland commented that the dual functions of the Law Society of Scotland, allowing it to both regulate and represent solicitors, had “always had a tension”. Today, that tension has never been greater.

When The Law Society of Scotland was formed in 1949, sixty one years ago, the legal profession was very different to that which it is today and the Law Society needs to change, as the profession has required to change, to meet the demands of today’s members and the public.

Since the publication of the Legal Services (Scotland) Bill, on 1st October 2009, it has become apparent that the profession is split. Those solicitors with different commercial and business interests and with very different practices are at odds over the principles behind the Bill. It is a debate that has stimulated the profession as no other. The Law Society insists that it can still continue to represent the multi-national oil and gas commercial solicitor, as well as it can represent the legal aid solicitor earning £42.20 per hour. The recent debate over the Legal Services Bill has shown that it cannot and most solicitors recognize this fact.

The Legal Services Act 2007 (England and Wales) ended the “dual functions” of the Law Society of England and Wales. It was clear in England and Wales that opening the legal services market to non-legally qualified “legal service providers” meant that the Law Society could no longer insist upon its “dual function”, because its independence was compromised. Now, in England, the Law Society does not carry out the dual representative and regulatory functions.

Indeed, there is no other democratic country in the world where the solicitors’ governing body represents and regulates solicitors and represents and regulates non-solicitor “legal service providers”. But that is what the Law Society proposes for Scotland. For many reasons this would lead to a detriment to the public.

If there is not a split in the functions, then the independence of the profession will end. The Law Society is proposing, for a profession of 10,000 solicitors, a Council of 60. Our country has a population of five million and 59 MPs at Westminster. Why does our Law Society Council need to be so big? After the Legal Services Bill, non-solicitors (with full voting and participatory rights) will make up at least 20% of Council, without a statutory safeguard preventing that figure from increasing. Therefore, non-solicitors will be representing our interests. Shouldn’t it be the other way around?

At a time when individual solicitors are told that they must adapt and welcome the increased competition (and consumer choice) that the Legal Services Bill provides, the Law Society jealously guards its statutorily compulsory membership and thus restricts the CHOICE of the members of the profession to be represented by whichever body or bodies, if any, that they CHOOSE. If you don’t want the Law Society to represent you (or you believe it is not doing so effectively) your only option is to give up being a solicitor – not much of a CHOICE!

The CHOICE should be as free for solicitors as it is for the public. CHOOSE, or indeed form, your own representative body, if you feel the need. CHOOSE the Law Society if that is what you want! Those representative bodies, entirely constituted by and for solicitors, can then unite under a joint national council, where a common interest exists and collectively state a position, in which each will still represent their members, entirely independent of government or non-solicitor influence. The Law Society could then continue with its regulatory functions and could represent those who make that CHOICE.

Today's meeting had been formally called by the LSS, but representatives of the Council of the LSS had subsequently purported to postpone today's meeting to next week, notwithstanding this was clearly unconstitutional and contrary to established case law. The danger was if today's meeting had not proceded the reconvened SGM would have been unlawful, and the Law Society of Scotland would have been open to challenge before the courts, and criticism for disrespecting the due process of Scots law.

Thirty three solicitors from Aberdeen, Dundee, Dumfries, Glasgow and Edinburgh attended the reconvened SGM this morning at Edinburgh's Sheraton Hotel. The purpose in attending was to protect the integrity of the Society and profession they held dear, and to properly preserve the SGM motion, and respect the rule of the law in Scotland.

The Registrar, staff and President of the LSS had been fully informed that the meeting was proceeding as called, but declined to attend. In their absence and in accordance with the LSS Constitution, the meeting agreed to appoint a member of the Council of the LSS to chair the reconvened SGM. Walter Semple took the chair, and the meeting agreed to appoint Ross Anderson, solicitor as legal advisor to the chairman.

In the absence of LSS staff, the meeting agreed unanimouslly to suspend Standing Orders so that it could formally appoint a minute taker. Catriona Walker, solicitor, was so appointed. A discussion took place on why the the notice calling next week's 'SGM' was void and unlawful with reference to the case law. The meeting endorsed this legal opinion.

The chairman, Walter Semple, and others who spoke, agreed that it would not have been appropriate to take a vote on the substantive motion today in the spirit of openess, transparency and fairness of debate, and that the honourable thing to do was to agree to adjourn today's SGM to the purported SGM meeting of next week, and in so doing curing the unlawful notice issued at the behest of Ian Smart, and other representatives of the Council of LSS.

The meeting unanimously agreed to do so, and in so doing restored dignity, honour, and credibility to the SGM debate on Alternative Business Structures in Scotland.

To: Council Members
Sent: Wednesday, 14 April, 2010 20:28:20

Subject: Events

Dear Colleague,

I'm writing to try and bring you up to date with the events of the last few days.

On Monday afternoon, the Society was contacted by four separate members to complain that wrong information had been given in the notice calling the reconvened SGM in relation to the inability to submit fresh proxies. They included one very prominent member of the Scottish Law Agents Society. We then reviewed the terms of the Constitution and concluded that the criticism made was a valid one. The constitution provides for proxies to be lodged no less than 48 hours before any meeting or adjourned meeting.despite it being on the basis that no new proxies could be submitted for an adjourned meeting that both we and SLAS had proceeded on (and since) 25th March. One of our correspondents in particular suggested that to proceed to a vote on Friday without allowing proxies would leave the result of any putative meeting open to challenge (by implication) in the Courts.

I am mortified that this error was made in the first place. I'd be happy to try and explain what happened (insofar as I understand it) at the Council Meeting. Nonetheless by mid-afternoon on Monday, it was clear an error had been made and needed rectified in some way.The problem was that this could not be done by the date of the originally scheduled meeting as a corrective notice issued even early on Tuesday would have given a maximum period of 24 hours for additional proxies to be collected and, in accordance with our archaic constitution, physically lodged at Drumsheugh Gardens. That, in turn, would inevitably have left us open to challenge that insufficient notice of correction had been given.

Accordingly, with great reluctance, Lorna, Jamie and I decided on Monday evening that we had no alternative but to postpone the reconvened meeting. We were aware of three things:-

1) That inevitably this would look incompetent and attract bad publicity.

2) That conspiracy theorists would suggest we were trying to renege on our undertaking that the original purpose of the adjournment was specifically not to gather extra proxies for the pro-ABS camp.

3) That the self-same sources might suggest an intention on our part to postpone the vote until after the Scottish Parliament Stage 1 debate.

There was little that could be done about the first of these but to head off the second Jamie, Cammie and I gave an undertaking to the profession that we would not accept, personally, any additional proxies. In relation to the third, I personally contacted the Minister to request he use his influence to ensure the debate not take place next week. Whether as a result of my efforts or otherwise, we are assured that the debate will not now take place until 28th April at the earliest.

We also felt the reconvened meeting should take place at the earliest possible date. In pursuit of that it was arranged for 21st April.

Unfortunately today certain elements associated with the law agents have sought to suggest that it was not competent for us to reschedule the meeting. I will return to this later.

The second major development on Monday was the meeting of the Council of SLAS. It is now, I think, an open secret that the deal/compromise or whatever one wishes to call it proposed between SLAS and the pro-ABS forces was essentially as outlined in the McGrigors amendment circulated with the papers for the reconvened SGM.

I regret to say that despite earlier indications to the potential contrary, the SLAS Council decided on Monday that they could not agree to this and wished to press their outright opposition to ABS to a vote. I think I am entitled to say that there were quite strong disagreements internally within SLAS as to the wisdom of this course and I regret that in the aftermath of that meeting Michael Scanlan has resigned as President of SLAS. I am at a loss to know precisely how now to interpret the position of SLAS as it has been suggested to me that they are still prepared to compromise but only after they have passed their motion! Quite how and when any compromise is then to be reached and endorsed in any sort of timescale that might influence the Government is a complete mystery. It is undoubtedly the case however that SLAS hold sufficient proxies to do this if they want.

Whether as a result of the SLAS Council being now dominated by more intemperate heads or whatever, in the course of today, SLAS have suggested that it was incompetent to postpone the reconvened SGM and that we were somehow instead obliged to proceed with a meeting that had been, by common consent, called incompetently. Michael Sheridan, their secretary has written today threatening to go ahead with a "Special General Meeting" of the Law Society at the Sheraton on Friday, even if none of the Officers or staff of the Society are in attendance. Whether they intended or intend to proceed to a vote at this event is unclear. We were in no doubt that rescheduling the meeting was competent but we were conscious that in light of the difficulties already arisen from our own error, we were in an awkward position to simply assert that. We have accordingly taken Counsel's opinion in the course of the day and that has, indeed, confirmed our view. We have written back indicating that whatever might or might not take place at the Sheraton on Friday it will not be regarded by us as a General Meeting of the Law Society. I'm hoping however that people might calm down over this overnight, not least because the same opinion confirms that the meeting on the 21st is validly constituted and at least part of the concern here is maintained to be a fear by the Law Agents that this might not be the case and accordingly any vote taken then would be invalid.

You'll gather that this matter is rather taking over my life at the moment. I am sorry if I've not been able to keep everybody as fully advised as would have been ideal but I had high hopes that I might have been writing to you on Tuesday announcing we had a done deal. The most depressing thing of all is that we are conducting this debate as if we were the only players. Nobody in Government has ever repudiated the "no change is not an option" statement. In all of this that is simply being ignored. The real danger is that if we continue to speak with a divided voice then the Government will, at some point, simply ignore us altogether and get on with doing what they want. I'm not sure how that serves anybody's agenda.

Ian

Mmm…not quite. The referendum was requisitioned by over thirty law firms including Law Firm of the year Thompsons, one of Scotland’s commercial giants MacRoberts, one of this profession’s most respected institutions, Govan Law Centre and members of (largely) Edinburgh’s WS Society. Oh, and the GBA too. But it suits the LSS not to tell that to its 10,500 members. It’ll portray the “dual functions” referendum as a GBA thing. It’s not. Indeed, no one would have requisitioned the “dual functions” referendum at all had the LSS agreed to include the dual functions question in the ABS referendum that the Council itself decided to requisition. But it wouldn’t.

When the President made it clear, at the ONLY open debate on ABS that took place in Glasgow at the RFPG (the LSS arranged.. er.. NO open debates anywhere on ABS- just “roadshows” with their own speakers – all ABS supporters), that a third question on the “dual functions” would not be included on the ballot paper for the ABS referendum, then all the requisition signatures were obtained the following morning and delivered to Drumsheugh Gardens. An hour or two. Thirty firms. Glasgow through to Edinburgh.

Speaking of which, there was the motion to adjourn at the SGM a couple of weeks ago. The decent, honest, hard working solicitors who had been told by the Law Society two months previously, when they expressed their concerns about external ownership, to “bring it on” did just that.(In case you missed that, they were told by the Law Society to “bring it on”). Staring defeat in the face, The Law Society’s Standing Order book was literally produced from the back of the hall and a hand count later, proxies denied, and we’re all back on the train again. No vote.

Privately, past Presidents are aghast at what is going on. Privately, politicians are disbelieving. Publicly, other professions are looking and not laughing.

There is another way you know. Cheaper and more effective. Be it SLAS, the GBA, the WS Society, the RFPG….. All independent. All cheaper. All stronger. All together.

We deserve nothing less than mature, independent representation for all our sakes. Watching this Town Hall political soap opera that is the Law Society self destruct in front of us is not much fun. If you value an independent profession, you must vote “NO” in the dual functions referendum running 26th April through to 10th May.

49.73% of members who voted were against any form of ABS - a remarkable level of opposition given the pro-external ownership campaign mounted by the LSS. To suggest there are 'areas of consensus on some models of ABS' negates the fact that almost 50% of LSS members voting were opposed to any model of ABS as a matter of principle.

Likewise, to suggest 'ABS wins by a whisker' was inhabile with the fact 50.27% of members voting were only in favour of ABS "as long as there are appropriate safeguards to protect the core values of the legal profession ..." . That conditional support currently carries little weight when the Scottish Parliament's Justice Committee has itself expressed doubt over the appropriateness of safeguards in the Bill as drafted.

Govan Law Centre's Principal Solicitor, Mike Dailly, has today written to LSS President, Mr. Ian Smart, to ensure that Scottish solicitors will be consulted on whether the Bill as drafted, or as to be amended by the Scottish Government, will contain 'appropriate safeguards' as regards ABS:

"In light of the ABS referendum vote, it is clear members of the Law Society of Scotland must be consulted in due course with a final referendum on the question, 'Do you agree that the proposals for ABS amount to appropriate safeguards to protect the core values of the legal profession in Scotland?. Yes or No'. I hope our President will accept the need for this subsequent referendum, given the clear message sent to Council by the result of yesterday's referendum".