Grasping the issues

Interview with new President of the Law Society of Scotland, Duncan Murray

The Journal, May 2004, page 36

One feels from talking to Duncan Murray that a feature of his presidency will be reform through improved procedures.

Making things work better has already been a mark of his tenure as office bearer. His focus has been helped by the evolution of the Society’s Board and its successor the President’s Committee. Combining as it does consideration of strategic matters and day-to-day issues, Duncan believes it has reached “the right iteration of where it ought to be: it provides a link between the Council and the Society’s Executive, facilitating and empowering the Executive in its work”.

The President’s Committee, like its counterpart in England and Wales, is chaired by the Vice-President, who brings forward its business to Council, chaired by the President. With the Past President now serving on the Committee for a full year, the vogue term is a “rolling office bearer period”.

“The Vice-President is much more involved in key decisions from the outset, and can influence where the Society is going”, says Duncan. “I was delighted to be involved in streamlining the complaints system following the Justice 1 inquiry and the Society’s new delegated powers. That’s a good example of its Executive and office bearers working together.”

The practical approach shows through when asked what he hopes the Society will achieve during his presidential year. “This will be an exciting year in education and training”, he comments. “I’m the first generation of my family to have been at university so I see access as an important thing.” Having graduated in 1980, when a combination of summer jobs, grant and parental contribution provided enough for “beer and petrol”, he is concerned at levels of student debt and availability of training places.

“This summer we will consult stakeholders on the principles underlying the structure and content of legal education in the context of the core values and aims of legal practice. We plan to follow that with a conference to debate the issues, after which Council will finalise a foundation document setting out the Society’s goals for education and training of solicitors.”

He turns to the much-debated issue of equal opportunities in the profession. “The Society is to undertake research with the Equal Opportunities Commission to try to establish why fewer women progress to senior posts compared with the numbers entering the profession. “I became a partner at just 25, but now you’re usually into your 30s. If it takes 10 years to become a partner, clearly that has an impact, but we want more factual information both about private practice and in-house to inform our thinking and actions.”

Another touchstone, he continues, will be multi-jurisdictional practices (MJPs). “The Scottish Executive has indicated a willingness to legislate on MJPs. It is for the Society to draft and agree the rules for the operation of MJPs. I think that’s quite important for many of our firms, particularly our larger firms with cross-border practices. A key issue will be who regulates a solicitor qualified in one jurisdiction but working in the other; the solution will require symmetry and co-ordination with the Law Society of England and Wales.

But dominating his year will be the Clementi review, and the research into legal services now ordered by the Scottish Executive. Despite the influence of the larger jurisdiction, Duncan doesn’t see the two reviews necessarily reaching similar conclusions – this is one issue on which the Executive has made it clear it is looking for a home-grown solution. “I think there is better recognition of rural practice issues in Scotland than in England and I believe the Executive is alert to access to justice concerns. The issues raised are multi-faceted and need careful consideration.”

“Consumer protections are clearly important, particularly in the context of unregulated providers. Any solution must address the gap in protection between regulated and unregulated providers.”

“Douglas Mill’s work on the Clementi review and participation in the Scottish Executive research places the Society in an informed position to respond to the proposals arising from the consultation process.”

The legislative output of the Scottish Parliament is another reason for seeking to continue what he sees as the valuable advice and support the Society provides the lawmakers through its Law Reform Department – reflecting a positive engagement with the Scottish Executive. “As an apolitical organisation we have a great deal to offer the legislative process. We may not always agree with new laws, but we’re invited to have our say, our views are well respected and play no small part in making laws which work in practice.”

As the first President for some years from one of the larger firms, Duncan intends to increase the Society’s engagement with that section of the profession. “We could do with more representation from the bigger firms which in terms of numbers make up a fifth of the solicitor population. On that basis they are under-represented and I would like to increase those firms’ participation in the Society’s work.” He cites a successful discussion about MJPs, which he hopes can be followed by other meetings to involve them more.

But he doubts that there is a single big firm agenda. “There are issues where the big firms have a communality of approach but on others there is less unanimity.”

So is it difficult for the Society to represent all member firms across the size spectrum? “No. The Society’s role must be to regulate the profession well, and lightly, so that we are able to deal with failings but at the same time support and advise the profession rather than stifling them with rules. We need to be tough on people who default on their obligations but support those who uphold standards and encourage their success. That’s what the Society works to do and what I believe the members look to the Society for as their professional body.”

The discussion moves to the familiar problems of rural practices. You cannot buck the market, he says, but he hopes that the Scottish Executive review will throw up more hard facts than the anecdotal evidence now quoted. “I am not despondent about it because I think the market will remedy this. There are many rural practitioners who make a good living and enjoy the advantages and lifestyle of rural practice. I think that may become increasingly attractive to people.” What he does accept as a concern is the number of trainees in large firms specialising at an early stage, “which means that there is no way they could give general advice in the high street. So if those trainees want to work as solicitors in rural locations, there may be a need for second stream training, or retraining.” He also hopes to encourage rural firms to take on more trainees and emphasises their value to rural practices.”

Overall Duncan sees the profession as in “reasonably good heart”. The cost of time survey report has been encouraging, he says, adding a plea for solicitors to complete the current return, for their own and for the profession’s benefit. One of those who believe that big firms will continue to get bigger and the medium sized come under more pressure – due to specialisation, economies of scale and “perception of ability to deliver a service” – he thinks it not beyond the bounds of possibility that there could develop a “really big firm” – or that we get much more cross-border activity. “And that raises some issues for the Society and the profession.”

One good thing from the Clementi process, he says, is the support it provides for the presidential job of promoting the solicitors’ cause. “The Clementi consultation document is commendable and he’s clearly been impressed by the key role that solicitors play and the vital job that they have in terms of independence. So let’s take the chance Clementi offers us to blow the trumpet for solicitors whether working in-house or in private practice, doing a good job whoever their client may be.”

He notes that in-house lawyers now account for a quarter of the Scottish profession. “The Society has a vibrant In-House Lawyers’ Group and I will liaise with the members to address areas of particular interest or concern.”

The area of practice where there is real concern on solicitors providing a service is legal aid. “I know that many solicitors have taken a view that in spite of some increases in rates, they can no longer afford to provide clients with services under legal aid. Despite their gut instincts, that is a decision many feel compelled to make under current economic pressures.”

“I’m looking forward to the year ahead”, he concludes. “It’s a unique opportunity and privilege. I joined Council to put something back into the profession and expand my horizons, and have enjoyed my involvement from the start. I will have great support with Caroline Flanagan as Vice-President and advice from Joe Platt. I believe  Douglas Mill and I can complement each other very well and that the Society’s Executive and Council can work to promote the interests of the profession while having regard to our obligations to the public.”