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In shape at 60

20 April 09

A canter through the history of the Law Society of Scotland, from its genesis between the World Wars to the current regulatory reforms

by Michael Torrance

No serious attempt was made to form a national professional body for solicitors in Scotland until the early 19th century. Even then the established local faculties, such the SSC and WS Societies, had serious misgivings about losing control over their members.

Nevertheless some tentative steps were taken with the establishment of a Joint Committee of Legal Societies in 1922, which lobbied for what became the Solicitors (Scotland) Act 1933.

The passage of this legislation, at the height of the Great Depression, was far from smooth, with opposition from the infamous Red Clydesider, James Maxton MP, who viewed the measure as an insensitive money-making power-grab by the profession.

The 1933 Act established an independent Discipline Committee and a General Council of Solicitors in Scotland, composed of representatives from each local faculty, which had responsibility for the education and admission of apprentices and registration matters. The 1933 Act also referred to the term “solicitor” for the first time in statute.

However, the General Council could not act on its own initiative and had to defer to its constituent members. As a result, some in the profession started to eye jealously the powers which had been vested in the Law Society south of the border, earlier in the century. The agitation for a Scottish Law Society proceeded apace after the end of the Second World War.

Labour and birth

In 1949, the then Lord Advocate, John Wheatley, acted as the midwife for the birth of the unified profession. His memoirs note the opposition that the Legal Aid and Solicitors (Scotland) Bill received from some solicitors, with suggestions that the profession was being “nationalised”, and worse still, “anglicised”.

Nevertheless, the Law Society of Scotland was born in 1949, following successful passage of the bill. The Society retained the General Council’s original powers but took over responsibility from the older societies for the regulation of the profession as a whole. Section 1 of the 1949 Act introduced the obligation on the Society to promote the interests of the legal profession and the interests of the public in relation to that profession.

The Society was largely established to administer the new system of legal aid through local committees of practitioners in most Scottish towns, including the assessment of applications for assistance and rendering the payments. This scheme replaced the ancient “Poor’s Roll” system which had relied on the voluntary services of solicitors and advocates, who usually acted for no fee.

Graduate entry

By the time the Society was founded, most aspiring solicitors entered practice as graduates, replacing the longer apprenticeships combined with part-time study for the requisite professional exams, common during the earlier part of the century. In 1949 a modest 3,306 practising solicitors were on the roll. Only 5% of new entrants around that time were women, and in 1950 there were only 174 apprentices.

In 1961 the then four law schools in Scotland jointly abolished the traditional academic routes into the profession of either an MA followed by an LLB, or the more poorly regarded Bachelor of Law (BL), both commonly taught on a part-time basis. The BL ceased to be offered altogether while the LLB became a full time, standalone degree, with no need for the preceding MA.

Thereafter, the LLB became the main path into the profession, alongside a two- or three-year apprenticeship. A minority of prospective entrants continued to take the Society’s exams. These reforms, combined with generous grant funding from the Government, helped admissions to law schools increase to 598 by 1976. In 1979 the number of apprentices was 430.

In 1984, the number of female undergraduates studying law reached parity with male students for the first time.

Under scrutiny

The first substantial review of the Society’s operations began as a result of the Royal Commission on Legal Services in Scotland, which reported in 1980. It supported (with recommendations as to the structure) the then plans to introduce the Diploma in Legal Practice, which became mandatory for all applicants the following year, prior to their undertaking a two-year traineeship which replaced the old apprenticeship.

While approving the Society’s administration of the legal aid scheme, the Royal Commission nevertheless recommended that its functions would be better served by an independent body and, in accordance with the Legal Aid (Scotland) Act 1986, the Society’s role in relation to legal aid was transferred to the Scottish Legal Aid Board.

The Royal Commission also recommended that rights of audience for solicitors in the higher courts should not be extended and, in stark contrast to subsequent government-sponsored inquiries, stated that they “found no evidence of strong dissatisfaction with the legal profession, or legal services, in Scotland”. The Solicitors (Scotland) Act 1980, which gave effect to some of the Commission’s recommendations, also restated the 1949 Act, as amended, as the main governing statute for the profession.

The Society firmed up the profession’s ethical basis with the introduction of the Code of Conduct for Scottish Solicitors and the adoption of the Code of Conduct for Lawyers in Europe in 1989. Acknowledging the growing importance of the European Union in the legal services market, the Society also became part of the UK Law Societies’ Joint Brussels Office in 1993.

Towards a freer market

A further period of significant reform occurred towards the end of the Thatcher era, with the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 reflecting the Conservatives’ enthusiasm for the free market. The profession’s perceived monopoly over conveyancing and executry services was diluted with the introduction of licensed practitioners under the jurisdiction of the Scottish Conveyancing and Executry Services Board (SC&ESB). The Act also provided for other professionals and bodies to apply to the Lord President for permission to conduct litigation in Scottish courts with rights of audience to appear in specified circumstances. Again, accusations that the Scottish profession was being anglicised arose, with Lord McCluskey famously declaring that “We have gone a-whoring after strange gods”.

Despite these concerns, both of the reforms subsequently proved to be underwhelming: the SC&ESB was initially undermined by a sluggish housing market and its powers were eventually transferred to the Society in 2003. Controversially, the provisions extending rights of audience to other professions were not implemented until 2007, in part due to the changed political climate and in the context of even greater market reforms. Commercial attorneys and chartered accountants have since been granted rights of audience. A more significant reform proved to be the extension of rights of audience in the higher courts to solicitors.

The beginning of more independent oversight of the Society’s complaints handling came with the appointment from 1976 of a Lay Observer, whose modest powers were enhanced under the 1990 Act with the position’s replacement by the Scottish Legal Services Ombudsman, who had the power to review the way in which the Society handled complaints.

The devolution era

The establishment of the Scottish Parliament in 1999 by the then Secretary of State for Scotland, Donald Dewar MP (himself a former member of the Society) brought the Society not only within devolved competence but also under significantly more political scrutiny as a result. A rise in public concern about the handling of complaints by the Society, articulated by the consumer lobby and other stakeholders, only increased the appetite for reform.

At first the Parliament worked with the Society in a collegiate fashion. The Council of the Law Society of Scotland Act 2003 provided for the delegation of the Council’s functions to committees for the first time. However, after a number of inquiries by the Parliament’s Justice Committee, the Government adopted a more interventionist approach with the passage of the Legal Profession and Legal Aid (Scotland) Act 2007. The Act removed the Society’s role in handling so-called “service” complaints and handed them to a new body, the Scottish Legal Complaints Commission, which is designed as the gateway for all complaints against members of the legal profession in Scotland. These reforms prompted the Society to review its Code of Conduct, promulgated into practice rules from January 2009. New standards for solicitors in Scotland were also adopted.

By 2006, the number of law schools in Scotland had doubled from five to 10, which led to a predictable surge in admissions, with the total numbers having doubled since 1976 to over 1,200. As a result, the Society’s comprehensive review of the education and training of prospective members which began in the same year was timely. Although the number of trainees compared to 1979 had remained constant, the number of practising solicitors on the roll in 2007 had trebled to 10,152 since 1949, of which 45% were now women and over a quarter in-house solicitors. Despite this the proportion of female partners in 2004 was still only 20%, but with a much higher margin of females over males being admitted to the profession in recent years, a majority of female practitioners is likely within a few years.

New directions

The European Commission’s Report on Competition in Professional Services provided the impetus for the Clementi Report of 2005 in England & Wales, which recommended significant reforms to the Law Society there and the liberalisation of the legal market. This latter reform was initially postponed in Scotland but is now supported by the Law Society of Scotland and the current SNP Government, which launched a consultation paper early in 2009 with a view to introducing a Legal Profession Bill before the summer recess.

The bill is intended to introduce alternative business structures into the Scottish market, allowing the establishment of multi-disciplinary partnerships and outside ownership of law firms by non-lawyers as per the English reforms, but stopping short

of sanctioning legal disciplinary partnerships between advocates and solicitors. More fundamentally, the Government agrees with the Society’s position that the creation of a “super-regulator”, such as the Legal Services Board in England & Wales, is not necessary in the smaller Scottish legal services market. 

The bill will also accommodate the modernisation of the Society’s governance structure, which is proposed following an in-depth review by the Society of its internal management structure, democratic procedures and representational role. This is arguably necessary not only to take stock of a period of feverish reform but also to allow it to tackle future challenges in a more efficient manner. Once the Society’s constitution has been revised, the end result is likely to be a clearer demarcation between its representative and regulatory roles, as well as a more focused Council with a greater lay membership.

These reforms could not be happening at a more pertinent time as Scotland finds itself in a deep recession. Only the passage of time will tell whether a more competitive market and revitalised Society will be the end result.

Michael Torrance is a second year trainee with Brodies LLP and is currently on secondment to the Law Societies’ Joint Brussels Office. He has previously worked in the Law Society of Scotland’s Law Reform Department. Any views expressed in this article are the author’s own, and do not in any way reflect the views of the firm or the Society.

Sixty years of significant dates

1949

July: Law Society of Scotland comes into existence on Royal Assent to the Legal Aid and Solicitors (Scotland) Act, with among other duties to administer the civil legal aid scheme

1950

May: Society’s constitution adopted

July: First eight standing committees appointed by Council

1952

July: Society’s coat of arms matriculated, with the motto Humani nihil alienum – “I hold nothing human as alien”

1956

January: First issue of the Society’s Journal

1964

October: Criminal legal aid introduced under the Society’s administration

Society presidency to sit onan annual basis – Sir Hugh Watson is first President to hold office for one year

1965

August: First “assistant secretary” appointed with principal duties in the field of public relations

1969

November: Society moves offices from North Bank Street to Drumsheugh Gardens, Edinburgh

1973

Public Service & Commerce Group, forerunner of the In-house Lawyers Group, set up

1975

First woman Council member, Ethel Houston

1976

Robert Laurie, first Secretary of the Society, retires, succeeded by Kenneth Pritchard

1976

First Lay Observer,Margaret Herbison

The Solicitors’ Discipline (Scotland) Committee becomes the Scottish Solicitors’ Discipline Tribunal

1978

Master Policy for professional indemnity insurance set up

1980

Diploma in Legal Practice followed by traineeship introduced, in place of former apprenticeship following graduation

Royal Commission on the Legal Profession in Scotland reports, including favourable review of legal aid administration but recommending independent body to carry out the function

1981

The number of practising solicitors breaks the 5,000 mark for the first time

1985

Advertising by solicitors permitted for the first time

Scale fees for conveyancing abolished

1987

April: Scottish Legal Aid Board takes over administration of all legal aid schemes from the Society

Incorporated practices permitted

1988

Society given power to deal with complaints of inadequate professional service (previously only professional conduct)

Financial Services Act regulation applies to solicitors

1989

Society’s power under Solicitors (Scotland) Act 1988 to deal with complaints of inadequate professional service comes into force

First Code of Conduct

1990

Law Reform (Miscellaneous Provisions) (Scotland) Act permits the Society to make rules setting out procedures for solicitors to qualify as solicitor advocates; and licensed conveyancers to act in property transfers

First specialist accreditations granted, in employment law

1991

June: Society given power to award compensation for inadequate professional service by solicitors

June: Scottish Legal Services Ombudsman office opened

1992

Society appoints representative in what becomes the joint Brussels office of the UK law societies

1993

First solicitor advocates granted extended rights of audience

Compulsory CPD introduced

1997

January: Douglas Mill takes over as Secretary and Chief Executive following retirement of Kenneth Pritchard

1998

February: First Society website launched

1999

June: Opening of Scottish Parliament, leading to major increase in Society’s representative work

June: 50th anniversary conference draws huge number of delegates from many jurisdictions

Donald Dewar Debating Competition for schools begins

2001

First solicitor advocate QC

2002

Justice 1 Committee inquiry publishes favourable report on Society’s governance

2003

Council of the Law Society of Scotland Act permits delegation of decisions by Council, leading among other things to streamlining of complaints system

2004

September: Journal website launched

2005

May: Caroline Flanagan becomes first woman President

August: Table of Fees abolished as potentially anti-competitive and Client Communication Rules brought in requiring written terms of business in all matters

Multinational practices permitted

2007

The number of practising solicitors breaks the 10,000 mark for the first time

Society begins work on policy to accept non-exclusive ownership of legal practices by solicitors

2008

April: First full property transfer achieved through Registers of Scotland’s ARTL (automated registration of title to land) system, developed in partnership with the Society among others

May: Society’s AGM approves policy paper favouring shared or non-lawyer ownership of legal practices

October: Scottish Legal Complaints Commission takes over handling of inadequate professional service complaints relating to business instructed after 1 October

2009

January: CA Lorna Jack takes over as Chief Executive following resignation of Douglas Mill

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