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The work goes on

1 July 04

The responses to the Clementi consultation paper from Scotland and elsewhere, and what happens next on this side of the border

by Douglas Mill

Now the Society has responded to the Clementi consultation, do we just wait for the report?

The report is due out by the end of this year but far from waiting, the Society will be continuing the work which has only just begun in Scotland. There are now three areas of work for us over the next six to nine months. They are:

  1. participation in the Scottish Executive Research Working Party;
  2. participation in Clementi debates and analysis outwith Scotland;
  3. continuing to communicate and listen to the profession and interested organisations.

Who participates in the Scottish Executive Working Party?

A broad range of stakeholders in Scotland including the Scottish Legal Aid Board, the Faculty of Advocates, the Scottish Consumer Council, the Scottish Executive themselves and a number of economists. The Society is represented by myself and Michael Clancy, the Director of Law Reform. Large firm interests are being represented by Michael Walker of Maclay Murray Spens and rural firm interests by Neil Ross of Grigor & Young in Elgin. It is important for the Society to emphasise, amongst other things, the growth in the profession and its present economic strength. We have invited Scottish Executive researchers in to look at our complaints processes and data.

We are receiving assistance from Marsh (the brokers to the Master Policy), who have confirmed to us that we are within a year to 18 months of private practice business in Scotland being a billion pound per year industry, and that is not taking into consideration the earning power and economic impact of well over 2,000 in-house lawyers. We are carrying out research on the number of people employed by the Scottish legal profession – indications are that this figure may be as many as 30,000. In other words we are an important and growing industry sector. The economic impact of the larger firms in London and further afield is significant.

It is time that the Scottish solicitors’ profession is recognised as a major Scottish industry. It is also important for us to emphasise the fact that solicitors in Scotland are providing accessible legal services in communities across Scotland. Indeed we are likely to be conducting research with the profession, through faculties, to determine the number of high street and shop-front offices to scotch any suggestion that lawyers are not accessible to consumers.

Where else is Clementi to be discussed?

Self-regulation is high on the agenda of CEEBA (Chief Executives of European Bar Associations), a meeting which I will be attending in London in September, and the IILACE (International Institute of Law Association Chief Executives) meeting in October. It is likely to be a major topic at the English Law Society conference in Birmingham. These events give us the opportunity to continue to have our finger on the UK, European and international pulse.

There were also very useful discussions at the half-yearly meeting of the UK and Irish Presidents and Secretaries which took place in Dublin in June. Although we discussed other items of interest, the business session focused very heavily on Clementi – and in particular the Law Society of England and Wales’ response.

They are at the heart of matters. What is their view of Clementi’s likely recommendations?

Clementi has challenged them to prove to him why he should not go down the Model A route (see article in the April Journal at page 20). They seem satisfied that they can construct a satisfactory B+ Model, putting a fair amount of clear blue water between their regulatory and representative functions. In addition to this they are very much in favour of LDPs, although we did reach a significant problem on the definition of LDPs. The Scottish view of LDPs is that they are fairly tight, involving advocates, solicitors and perhaps paralegals but very much with lawyer proprietorship. The English definition seems wider in terms of who can participate in an LDP and would seem to include non-lawyer proprietorship. These new business entities are to be characterised, LSEW say, by the fact that they are restricted to providing “legal services”, but Clementi and others are fastidiously avoiding defining legal services and so the issue will need clarification. In any event we would remain opposed to non-lawyer proprietorship as we think that this strikes at the core values, particularly the independence of the profession.

Will you continue to speak to solicitors and interested organisations on progress?

Yes. In the autumn we have Faculty visits in Inverness, Falkirk and Kilmarnock, big firm visits with MacRoberts and Shepherd & Wedderburn and, interestingly, a session with the Edinburgh University Diploma students. This gives us an opportunity to listen to the views of large firm, high street and young lawyers.

Have you managed to review any other responses?

Yes. Notwithstanding the fact that the review is centred on England and Wales, the Scottish profession has engaged in the debate and responded admirably. I would like to thank the Royal Faculty of Procurators in Glasgow, the WS Society, the Faculty of Advocates, Shepherd & Wedderburn, McGrigor Donald, the Kincardine and Deeside Faculty, the In-House Lawyers’ Group and Ewan Kennedy of Glasgow for their considered responses and for having the courtesy to copy them to us. They make fascinating reading. As you would expect, they do not necessarily all say the same thing but there is a clear recognition in most responses that whilst the status quo in England and Wales is not an option, there is no reason for Scotland to have to follow the same route. I would like to thank McGrigor Donald for acknowledging differences from their perspective as a firm which operates from Belfast, Scotland and London.  Virtually all of the Scottish responses emphasise the core values of the profession and the importance of an independent legal profession in any modern democracy.

Interestingly the Law Society of England and Wales Gazette, in its edition of 10 June 2004, published a grid summarising selected responses to Clementi, which is reproduced here with their consent. (see table)

I have also received a number of responses from England and Wales including LSEW, Lovells (one of the big City firms), the English Bar Council and the Office of Fair Trading.

The OFT response is what we had anticipated – the issues looked at through the perspective of the economist. I fully accept the validity of economics and its importance in society today, but it is not everything. As Jeremy Peat, the Royal Bank of Scotland economist, says regularly and in an amusing manner: “There are two types of economist. Those who don’t know and those who don’t know they don’t know.” The rule of law and the interests of the public are every bit as important as numbers, and we can only hope that the OFT show their recognition of these complex issues.

Indeed part of my summer reading is Helena Kennedy’s recently published book, Just Law. She has a wonderful quote on page 57 which says: “Law is seen as an encumbrance to liberal free marketers, save in the ways it protects commercial transactions, provides remedies for default and makes the world safe for global capitalism. The minimalist State wants minimalist law.”

I place my hope and trust in the fact that the positive attitude of the Scottish Executive and others to progress the Scottish legal services market by finding Scottish solutions for Scottish issues shows that rather than being minimalist, we can look to a devolved Scotland to find the right answers for Scottish solicitors and their clients.