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President’s report

1 March 01

A rebuttal of an attack by the Home Secretary on lawyers

by Alistair Thornton

Lawyers are used to criticism, as are other professions, politicians and the media. Throughout history lawyers have been an easy butt of criticism. Sometimes it seems we are so used to it that little effort is made to set the record straight. As a result, perhaps we have become a soft target. I have said before, in the Journal, that we should have more confidence in our role in society, in the benefit we bring to individuals and organisations alike and in the essential services we provide. But more often than not, whether through diffidence, respect for the views of others, or a desire to represent our clients and their rights, the profession does not answer back publicly. On this occasion I will.

Inaccurate picture of the profession

The Home Secretary is reported to have said that the reason why there are so many lawyers in our society is because lawyers never agree, except about taking money off clients. Surely, it is the demand from the public for legal services which has created a market to meet those needs and which justifies – even requires – the present number of solicitors.

It is reported that the Home Secretary said that the number of lawyers has quadrupled in the last 25 years. That is not true in Scotland. Over that period, the number of Scottish solicitors has little more than doubled. At the same time we have seen enormous change, particularly a growth in the number of in-house solicitors whose valuable services are rarely publicly recognised. Advertising has been introduced and has grown. Competition on fees across the board, but especially in residential conveyancing, has rocketed. There are unprecedented levels of competition from external providers of legal services, severe clamps have been placed on civil and criminal legal aid rates and fixed fees for summary criminal legal aid work have been introduced. Client care standards have improved significantly and clients of all kinds shop around for value for money and quality of service. Surely all this is clear evidence of a modern, competitive, consumer-oriented legal profession?

I read reports of high earners but know only too well of firms which are struggling under the pressure of competition and low fees to pay their staff and produce a reasonable living for their partners. Some solicitors earn more than others but that is a direct result of the type of work they do and the specific market in which they operate. Solicitors are experts and most clients are prepared to pay for expert advice.

The Home Secretary is also reported as saying that lawyers forget about their wider social responsibilities. This is not the case in Scotland. It is because the profession takes its social responsibilities seriously that we express genuine concern about proposals which will have a detrimental effect on the delivery of justice in this country. We are fulfilling those wider social responsibilities when we question suggestions which may restrict the presumption of innocence, limit the client’s privilege of confidentiality, and diminish access to justice. We also fulfil our responsibilities by regularly undertaking work for our clients with no expectation of payment.

Unrealistic expectations

Scottish lawyers go through a lengthy and nowadays expensive qualification process to acquire the knowledge and skills needed to practise. Once qualified, they work extremely hard and offer high levels of integrity and protection for their clients. Professional indemnity insurance, the Guarantee Fund and a sophisticated complaints system are very good – and I believe essential – aspects of care for our clients, but they have to be paid for. They cannot be provided by solicitors in private practice without generating income by charging fees to clients. The market controls the level of those fees. How can individuals be attracted to train for a minimum of six years, provide high quality services to their clients and offer these protections, if their training, expertise and dedication does not produce a reasonable reward?

Different jurisdictions

I hope Mr. Straw did not have Scottish lawyers specifically in mind. His real thrust seems to have been directed against our colleagues in England and Wales. I am sure they are able to defend themselves. However it is frustrating and sometimes infuriating when critics and commentators fail to differentiate between the separate jurisdictions. There are ten times as many lawyers in England and Wales than in Scotland.  It is easy for Scottish issues to get lost in the noise. As I write this on the day before the Budget I have read predictions of further pressures to come much of which may not relate to Scottish solicitors. The issues for both professions may be similar, but they are not always the same. Some commentators make the distinction but many still don’t. As a result impressions are created in the mind of the reader of circumstances which do not apply in Scotland.

We have a separate and distinct legal system. Since the inception of the Scottish Parliament many issues relating to the legal profession here have been devolved.  The values of the Scottish legal system and the qualities of the lawyers who work within it must be recognised in their own right.