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16 October 17

When the review of legal services looks at the Society, what will it find? We met the convener of the body which has achieved a quiet revolution in the Society's regulatory operations in its six years

by Peter Nicholson

Review of professional regulation is high on the agenda at present. The independent body chaired by Esther Roberton has kept a low profile to date, but when it takes a closer look at the Law Society of Scotland, what will it see?

Six years ago, a major shakeup took place within the Society, under legislative reforms intended to pave the way for new breeds of regulated legal services providers. Like pandas, the right conditions for the birth of such creatures have proved elusive; nonetheless, Council’s former regulatory functions have been hived off to a separate committee, with equal solicitor and non-solicitor membership and chaired by a non-solicitor. Reporting to but independent of Council, it is likewise required to have regard to both the profession’s and the public interest.

What difference has the Regulatory Committee made? Convener to date has been Carole Ford, a former secondary headteacher, who now seems quite at home in her alternative profession. Having oversight over all the Society’s regulatory (sub)committees, from admissions to client protection to professional conduct, she believes her committee has “brought a great deal of transparency and coherence” to their work.

Single system

Clarity of remit was an early target. “One of the things we did,” Ford explains, “was to completely review the remit of each committee and its delegated powers, the distinction between the areas that each committee is responsible for, and the Society’s officers, to get total clarity and coherence into that. Also we now have a built-in review system; part of the process is continual review of how it works. That benefits the profession because it’s very clear why decisions are being taken.

“An aspect of that was creating an Appeals Subcommittee. In the past, if a solicitor was unhappy with a decision, the appeals process varied from committee to committee, but we now have one system: it goes to the Appeals Subcommittee and it’s very clear how and why they are taking a decision. I think it’s really important in any regulatory system that the process is very transparent and the criteria are clear.” 

Committees are also measured both against performance indicators and for quality of decision making. “Not only that,” Ford continues, “we ask them to reflect on what they are doing and they submit a trends analysis to our committee. They have to stand back regularly and look at what they are doing, at what is coming through the system to them. That way the Society is not just reacting to events but is proactively adapting to changing circumstances.”

“Mutuality of interest” 

With her maths background, Ford admits to having been surprised at first at the scope for differences when it comes to interpreting the law. “Maths is very black and white; the criteria are there and a proof is a proof. The law is more open to interpretation, shall we say, than I would have anticipated as a non-solicitor. I thought it was more definitive than it actually is.”

That does not appear to have caused problems in relations with Council, despite some initial uncertainty as to how the two bodies were intended to interact. “As time has gone on there is a greater trust: Council trusts the Regulatory Committee to do its job properly and to be working in both the interests of the public and the profession; and we don’t see that as a conflict of interest because I think it’s in the public’s interest to have a strong, well-regulated profession and it’s in the profession’s interest that the public has that faith in it. So it’s mutually beneficial to be supporting both interests. I think that trust is there now and the relationship is working well.”

She continues: “In the event of a clash of ideas, the Regulatory Committee would be the final arbiter, subject to the Lord President becoming involved. It seems to me highly unlikely that we would get to that position, and certainly that’s never been the case.”

There must be scope for some difference of view in balancing the respective interests? “I think that’s true and we would need to talk round that to get to a point where people felt comfortable. At the end of the day it’s not in the public interest to have a legal profession that feels itself to be under the cosh, as it were, to have regulation that makes life very difficult, because the profession has to work with the public as well. It’s also the case that the vast majority of solicitors don’t want there to be scope for the odd bad apple to upset the applecart; it’s not in their interests either.”

Rules in the making

Ford does emphasise the need to ensure that rules are not unduly burdensome – instancing anti-money laundering. “You need the experts to come up with the regulations. We can’t be experts, but we do need a basic understanding of how an area works. Our role is to stand back and look at the regulations and discern what impact will this have on the public and what impact on the profession, and whether what’s being suggested is the route to go down” – something to which the solicitor members bring their professional knowledge.

Another project currently in progress is the new “raising concerns” rules, with their proposed duty to report suspicions of dishonest behaviour within the profession. Consultation is running until 10 November – see news item here – and Ford is keen that as many readers as possible become involved.

“I think there is no doubt that solicitors and the profession as a whole accept they have that responsibility,” she observes. “The difficulty is the detail of the rules. That’s where I think having input from other professionals is really useful.” The committee’s medical profession member, for example, has commented on the difficulties in their approach; there can be a conflict between professional loyalty and the reporting of unacceptable conduct. “So we’re now going into the detailed stage which is how the regulations would work, and I urge people to respond not just in terms of do I agree or not agree, but in terms of their own ideas, because picking people’s brains is a really good way to get a system as good as you can make it.”

Talking of concerns, these have certainly been expressed by solicitors at the recent insolvencies of prominent legal firms, and the possible effect on public confidence in the profession. The Regulatory Committee is on the case, Ford assures us. “One of the things we have had discussions about is when a firm is financially viable. A firm could be following all the rules so that in an inspection regime the Society can find everything is in place, every rule has been followed, but the actual financial viability of the firm is not what they are technically there to inspect, and we have certainly had discussions about a financial fitness approach. If you take a kneejerk approach to any issue – not just in the law – very often it will be the wrong thing; you have to take time to work through all the issues. But it is on our to do list and it’s something that we’ll be coming back to.” 

Connections and contacts 

For a body that has to act in the public interest, the committee must be almost invisible to the public. Ford accepts this, but suggests the important thing is that politicians and others, “people who are more directly concerned with the regulation”, are aware of its existence. “We have started a system of annual reporting [read the 2015-16 report here], which is available to politicians and anyone with an interest. The person in the street won’t know of our existence, just as they won’t know of the existence of any committee associated with a professional organisation, but the profession is more aware.” 

And naturally it has close contacts with bodies such as the Scottish Legal Complaints Commission, and Ford herself has chaired one of their working groups. It is also keen to learn from the experience not only of other professions – via its non-solicitor members – but other jurisdictions. “It’s something we’re really open to,” Ford maintains. “When we’re discussing an issue we will ask the Society’s officers to find out how others do it, not only the ones closest to us like Ireland or England but also further afield, Canada for example. We’ve been looking at Denmark recently because they made a dramatic change in how they deal with legal complaints.” 

Issues for review

This brings us to the independent review of the regulation of legal services and complaints handling under Esther Roberton. Ford and her committee are forging links with the review, with Roberton herself due to attend the next meeting to find out how the committee operates.

Ford has certain issues she hopes the review will address. “One of the things that bothers us, and has for some time, is the fact that somebody can call themselves a lawyer when they have no legal qualifications whatsoever. If the public thinks someone calling themselves a lawyer is qualified and they don’t have to be, that leaves the public wide open to abuse, but it’s something I don’t think politicians have necessarily considered to be much of an issue.”

Another is the whole question of delay. “One of the major concerns that comes up over and again is how long it takes to do things in the law. In particular, though obviously it’s way more than that, people tend to think about regulation as equalling complaints, but with complaints most of the timing from the Society’s point of view is actually governed by statute.

“The Society’s legal services review group is looking at changes that we would like to see so there is more flexibility both about how we work and how the SLCC works too. It’s a legal requirement to do things in a certain way and a certain order and that I think is of major concern to the public.

“There’s also an educational aspect because people have to understand that processes do take time. They can have unrealistic expectations, but certainly being able to do things faster is something the public would welcome and it’s how we can actually adapt the system to do that.”

Ford is fully behind the Society’s quest to be allowed to regulate the practice entity as well as the individual practitioner. “From the lay perspective again, most people would assume that the Society had that power already, in the same way that if Trading Standards found a restaurant that was not hygienic they would have the power to shut it, but the Society doesn’t have power to do that and that’s one of the things we would like to see. That relates back to the raising concerns issue, because raising concern about how a company is operating isn’t a lot of use if the regulator actually can’t deal at a company level but only at individual solicitor level.”

She is more doubtful of the merit of outcome focused regulation, another major change that was under consideration – prescribing the desired result, rather than the means to achieve it. “The difficulty is that solicitors are actually trained to work with rules. That’s their background, their expertise, and breaking from that is quite a big step and we need to be very clear that it’s going to be an improvement, not just different. I think the mindset of a profession is an important consideration, because actually the public want their solicitor to be a very careful, slightly risk averse individual, somebody who’s looking at the detail, so if you have a profession that’s full of people like that, you have to bear that in mind when you’re looking at how you’re going to regulate.”

Having a general overview does give Ford a picture of how everything ties together. “We do worry that people tend to think regulation equals complaints, that view is out there, but it’s about the training of solicitors, who is admitted, making the system so that you are minimising problems for the public and for solicitors and you are making it economically viable for the public to use solicitors and for solicitors to function. And you hope that if you are doing all that well, you are actually minimising complaints. It is an important aspect, but a lot of what is going on is designed to reduce complaints to a bare minimum.”

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