Interview with incoming President, Ian Smart, who brings some clear ideas about how the Law Society of Scotland and its members can advance their interests in challenging times
In terms of when you would want to have become the President of the Law Society of Scotland, probably there’s no point in the last 10 years that would have been more challenging than this moment.” This cheerful admission from the man about to step up to the mark belies a vision of opportunity for the Society and the profession in the changed and changing circumstances in which each finds itself.
He should know. A “coal face” sole principal in Cumbernauld who has also served an extended term as Vice President of the Society following Richard Henderson’s early elevation to the presidency, Ian Smart has seen the impact of the recession at close quarters from both sides of the fence.
“The profession is financially and economically very much under pressure, and that affects people’s mood generally about new initiatives: if you’re introducing any kind of initiative that involves expenditure, you have a much harder sell no matter how good an idea it is than you would have in different circumstances.”
On the plus side
It is ironic that the Society’s 60th anniversary should see such stringent times, but there are positive things going for it. One is that Smart’s Vice President, Jamie Millar, is the current treasurer and already immersed in the job of making ends meet. Another is the new Chief Executive, Lorna Jack, who has the experience of financial management that the Society had identified as part of the desired skillset even before the scale of the recession had become apparent.
Then again there are the initiatives to respond to the needs of the times. The High Street Conference, Smart’s own idea to help smaller firms plan their way through the slump, has now been held twice with extremely positive feedback on each occasion. And even before the recession hit, the Society was rethinking the way it engages with the profession: the faculty visits round the country continue, but in addition there are now direct meetings with the bigger firms who between them employ a large proportion of the country’s solicitors (“More lawyers work for Dundas & Wilson than in the whole of the city of Dundee”), and this increasing sectoral liaison is being extended to others such as the in-house lawyers.
For the medium to large firms, the Society is aiming to raise the profile of the Scottish profession on a broader front than its previous dealings with its counterparts abroad. If foreign corporate counsel, for example, know that they need Scottish lawyers for transactions in this jurisdiction, they would then be less likely to go automatically to a London firm who will take a cut for referring the business on.
The Society, and Smart in particular, also shares the Scottish Government’s ambition of attracting to Scotland some of the vast amount of business now conducted by City firms under English law, but consisting of international transactions with no other connection with the UK. That involves offering the full package of efficient modern court and arbitration systems, and there is close co-operation with Government in working towards these.
A recurring theme as we talk is his recognition of the Society’s role in protecting the “badge” of solicitor, the status and reputation attaching to the term which many members – and their employers – recognise as making a practising certificate worth having even when not strictly necessary to their work. “The badge lets other people know exactly what your role is, and also I think means that even if they’re on the other side, that entitles them to an expectation of certain standards of behaviour and ethics that you would engage in as a member of the solicitors’ profession. And that’s an important prize, the integrity that surrounds the badge of solicitor.” Comparing the reputation that used to attach to Scottish bankers, he adds: “Losing that has been one of the major impacts of the banking crisis, and it will take many years to get it back.”
The diligence with which the Society regulates, in other words, pays dividends in its effect on maintaining the reputation of the profession of solicitor.
Not so scary?
Important as it is to demonstrate that its members are getting value for money from the Society, Smart would like to see a deeper change in the way they view their regulator. Having argued in last month’s Journal that the Society is acting in all members’ interests even when performing intrusive functions such as Guarantee Fund inspections, he maintains: “It’s easy for me to say, but it would be good if we can put the ‘scary regulator’ image behind us.” Pointing to the numbers who make use of the professional practice hotline, and indeed consult the Guarantee Fund Department for money laundering advice, he adds: “A good section of the profession has a very good working relationship with the Society, and I suppose all I want to say is, I would like to expand that section. The Society does a huge amount in members’ services and representation.
“I understand that people get annoyed at times because of the nitpicking type of things, but some of it is imposed on us by other people” – he instances the six-monthly letters required to comply with the Society’s group licence for incidental investment business, a minor inconvenience compared with what would otherwise be required to get, say, a bond of caution for an executry.
A strong supporter of the Society’s internal reforms, to improve the balance of representation of the profession on Council and introduce a management board for making executive decisions while Council retains policymaking and oversight functions, Smart is nonetheless aware that most members will judge the Society by different criteria. “Before I was on the Council I had not the remotest idea how the Council was elected and I’m sure today that most of the profession are the same as I was. While the governance changes will make that sort of thing clearer, I think the profession are more concerned about what the Council does, that the Council is sensitive in an intelligent sense to what’s concerning people and that we pick up on what’s concerning practitioners on the ground.”
If Ian Smart displays a political-type awareness, that may be due to his record as a Labour activist, though he hastens to add that he distanced himself from party politics on becoming a Society office bearer. However as Vice President to career Government lawyer Richard Henderson, he brought a practitioner’s perspective to current issues, while at the same time admiring Henderson’s thoughtful approach as well as his skill in achieving positive outcomes for the Society and the profession.
And yes, he is writing his “manifesto” for his term of office – with the interests of good government and accountability at heart. As the President has some freedom to set their own priorities, it makes it difficult to evaluate their success in the job, he says. “So I’m in the process of putting together two or three sides of A4, just saying, in the different areas of the Society’s activity these are my priorities for the year” – though he recognises that with many issues requiring external consultation, and perhaps even legislation, to implement change, he won’t be able to see them to a conclusion.
However his agenda is by no means a purely personal one. Smart describes the Society in his time as Vice President as having had “a kind of collective leadership”, comprising in addition to himself and the President, Past President Ruthven Gemmell, treasurer Jamie Millar, and Alistair Morris, the elected Council member on the former President’s Committee. “We’re all from very different backgrounds professionally, but in an odd sort of way I think we’re pretty much of the same idea of the way the Society should be going. That’s one of the things I say in the preamble to the manifesto: we have disagreed about the details from time to time, but about the general direction of travel there’s not been any disagreement about ABS [alternative business structures], the most important issue… And again on standards.” This way of working is set to continue.
An active supporter of the ABS reforms, Smart does not see them as opening up huge opportunities for smaller firms, despite the Government mantra about the solicitor, the accountant and the surveyor operating under the one roof: “In reality there’s nothing at the moment that stops you doing that, if what you want to do is share office costs.” But neither does he see them as a threat to the high street. “I think there are potential legal difficulties making sure that legal professional privilege is protected and we are considering that at a microscopic level, but I’ve said over and over again that subject to the protection of legal professional privilege, I’m in favour of the maximum liberalisation of the market. Which is just as well because that’s what the profession voted for anyway.”
With the resulting bill due in the Parliament shortly, Smart emphasises the improvement in working relations between the Society and Government compared with the more adversarial position that existed over the last Legal Profession Bill – despite the Society, reflecting members’ wishes, having by then accepted the principle of a complaints commission. “This bill is being handled very differently by the Society and the Government. We are working closely with Government on this and have regular and useful discussions about the detail. The Government have a number of interests to balance in deciding on the issues involved, but they will always give us a proper hearing.”
In his time he has also seen a dramatic improvement in relations with the Scottish Legal Aid Board. Having led the Society line for five years in dealing with the Board, he can say with feeling: “If you look at the dialogue there has been, whatever you think of the summary criminal justice reform, if you look at the amount of joint work between the Board and the Society on that, it would have been inconceivable 10 years ago.” And he stands squarely behind his successor Oliver Adair’s record in dealing with the Board and with Government: “Nobody knows the criminal side of it better than Ollie. He has criminal practitioners’ best interests at heart and he promotes those interests effectively.”
Two other topics come to mind from his draft manifesto, as major issues over the next 12 months. One is education and training, on which the reform paper on paths to qualification is almost finalised but ongoing work with the universities will be required; and where discussions are also taking place with various interests on post-qualification accreditation, where Smart sees scope for considerable expansion over the next few years.
The other is more flexible disciplinary procedures. The Discipline Tribunal has a steadily increasing caseload, but often these resolve into matters less serious than the solicitor concerned feared might be the case – but at the same time they have landed in further trouble by failing to reply to Society correspondence. So Smart’s idea, currently being considered within the Society, is for a sort of fiscal fine system, which would involve an acceptance of misconduct (or else proceedings before the Tribunal as at present), with a penalty such as a fine or practising certificate restriction, but a quicker and more certain outcome, and one avoiding the heavy costs of defending Tribunal proceedings – “easily running to five figures” in many cases.
So stand by for a man of ideas, and an energetic presidency – even if one that nearly never happened. Having stood unsuccessfully a couple of times for Vice President and decided after 10 years to come off Council, Ian Smart’s Dick Whittington moment came with the sudden resignation of his good friend John MacKinnon as President, leaving a vacancy for a Vice President able to step immediately into the post. Perhaps, though, he would have found it hard to quit. “Max Hendry, my predecessor on Council, came off halfway through his term, and sold it to me on the basis that I only had 18 months to do if I didn’t like it – and it would look good on my CV. But I love it, I love all the Law Society stuff.”
Ian Smart: a profile
Ian Smart was admitted in 1980 and joined Ross Harper & Murphy, at first working mainly in Easterhouse and then as a “floating assistant” – wherever he was needed to cover. When the firm wanted to open in Cumbernauld, he was asked to come and do it, though he had no previous connection with the town. A couple of years later the firm decided to let most of its branch offices go their own way, and Ian S Smart & Co was born.
Still a sole principal, Smart has been through mergers and demergers – “The accountants all say the future is to practise in bigger units, but though my former partners remain close friends, temperamentally we were just not suited to being in partnership with each other” – and while always mainly a court lawyer himself, also runs a chamber practice with the help of a “very good staff”.
Now 10 years on the Society’s Council, his principal convenership has been five years at the helm of the then Legal Aid Committee.
His Paisley roots (his father was a solicitor there with British Railways Board, and a provost of the town) still show in his regular attendance at St Mirren games. When we met he was looking forward to the cup semi-final…