Papering over the cracks
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6 January 2014
City solicitors are surprised by the Law Society president's proposal to represent a unified legal profession. Claire Smith finds the City shouting 'if you can't handle what you've got, don't take on more'
"Let us think the unthinkable," said Law Society president Robert Sayer last week. "One unified legal profession, no more solicitors or barristers - just lawyers. With one code of conduct, one set of rules, one regulator."
His suggestion, made at the Solicitors' Law Festival in Disneyland, Paris, that the Law Society regulates and represents a new unified profession, has incurred the wrath of the Bar Council and, most notably, City solicitors.
Many in the big firms feel that Sayer has bitten off more than he can chew by trying to represent barristers and legal executives when he is already failing to stand up for City solicitors.
Bill Knight, senior partner at City firm Simmons & Simmons, says: "I think it's a huge challenge to represent a profession as diverse as ours, and it's a pity for us larger firms to be effectively left out of it.
"Significant parts of the big firms have nothing to do with the Law Society."
Senior partner at Clifford Chance, Tony Williams, says: "Being an organisation in an industry the size of the legal profession, it is very difficult for the Law Society to represent everybody. The issues range from legal aid to multinational business, and, inevitably, large parts of its activities are irrelevant to us."
But Sayer maintains he has been working on increasing the representation for City solicitors by restructuring the Law Society.
A consultation paper is due out this week, looking at whether the council should be representing special interest groups instead of geographical areas, and Sayer is talking to the City firms about what they want.
"We should have separate, distinct teams serving different parts of our membership. There should be a team going out talking to City firms saying, what should we be doing for them?" says Sayer.
The society has brought in accountants Ernst & Young to look at the international work the society does.
"They are looking at the international directorate and seeing what it does and what it should be doing. We want to find out what the City firms would like us to be doing in that area.
"You have got to bear in mind that I have only been in office for three months. Before that I could put forward a view, but now I am starting to do something about representing the whole profession."
By that he means the bar too - a proposal which has infuriated the powers that be at Bedford Row.
A Bar Council spokesman says: "The Law Society is barely able to represent its diverse constituent parts at the moment - the suggestion that it could take on the legal executives, the licensed conveyancers and the barristers and hope to represent them is frankly not plausible."
Sayer admits the barristers would not necessarily become another distinct interest group. For example, a shipping barrister may want to be in the same group as a shipping solicitor.
"I don't think we should get hung up on the idea of barristers and solicitors - the public don't understand it. All suppliers of legal services should get together and talk about this."
Other Law Society council members admit there are difficulties representing the whole spectrum of the legal field, and can see problems with a unified profession.
"There's no doubt that as the profession gets more and more diverse it's getting more and more difficult to represent all levels of it," says council member Tony Bogan. "High-street solicitors say the society is not representing them, and City solicitors say the same."
"I agree with the concept of a single regulator for all providers of legal services. There must be a public need for anybody giving legal advice to be regulated to the same standard.
"But if the single regulator is going to be the Law Society it will have a huge problem if it wants to stay on in the trade union role.
"The society has not got its head around the conflict that exists between regulation and representation, and there will never be a unified profession until it has."
Other council members sharing the same concerns envisage the society becoming an umbrella organisation representing more special interest groups.
Council member Angus Andrew says: "My own view is that the Law Society should be the regulator, but it is increasingly difficult for one organisation to represent all interests of the legal profession. There are enormous conflicts between City firms and high-street firms, which require different things.
"Even on the high street there are very different interests for, say, franchised and non-franchised firms. I think we are going to see the Law Society letting go of some of those representative functions and acting as an umbrella to specialist sections."
But the council members' comments come as little consolation to the Bar Council. While it is furious at the idea of being represented by Chancery Lane, it is just as wary of a single regulator.
"The Law Society record on regulation is at best poor," says the spokesman. "In practical terms there's no case for the Law Society workload on regulation to be extended."
He points out the difficulties of regulating barristers and solicitors together, highlighting differences such as the way that the bar does not hold client money, which he claims will create huge problems regulating professional indemnity.
But Sayer says some amalgamation between the professions is inevitable. "The commercial bar is trying to get straight to the clients, and since solicitors now get higher rights of audience, fusion is inevitable. Let's start the debate instead of just ignoring it."
The administration of the Bar Council costs £4m a year - an average spend of £500 per head - compared to a figure of £50m - £625 per head - to run the Law Society. The council therefore claims the unified regulator would put up the costs for barristers.
"The bar administration is very streamlined," says the Bar Council spokesman. "The costs of self-regulation are very low and that enables them to be cheaper. Without question, the cost of being a barrister is less than being a solicitor."
An internal think-tank at the Law Society, called the Ginger Group, published a report at the beginning of 1994 which covered the ideas behind Robert Sayer's speech.
One of its options was: "To utilise the superior facilities of the society to work with or take over the bar: overtly to subsume the bar."
But despite being mooted five years ago, it seems there is much to be done before Sayer's dream becomes reality.
"There is clearly a conflict between the trade union and the regulator," says Allen & Overy private client partner Richard Turnor. "There must be a case for having a single regulator to make sure the whole thing is coordinated properly.
"But in any big and complex organisation there will be areas where some people will feel they were under-represented and others were over-represented.
"There are some issues I think the big City firms would like to see done differently - there is room for improvement."
The managing partner at top-10 firm Dibb Lupton Alsop sums up the City's stance. Nigel Knowles says: "I would have said that the Law Society needed to ensure that its current regulatory regime was relevant to all its members before it tried to take on any more."