Scotland must prepare for Clementi

2007 is an important year for Scottish lawyers. It has seen the passing into law of the Legal Professions and Legal Aid (Scotland) Act and it will in all probability see the passing into law of the Legal Services Bill.

While the Legal Services Bill will have direct effect only in England and Wales, these effects will be felt far beyond those confines. Is the Law Society of Scotland aware of these issues? And is it doing anything to take the matter forward? The short answer is yes, the society is working very hard on a number of projects. Chief among those are the work on standards and the work on alternative business structures (ABSs).

So far as standards are concerned, we recognise that the Scottish Legal Complaints Commission does pose a challenge to the profession to raise its game. We happen to think that standards in the profession are already high, but we would never rest on our laurels, even if there had been no criticism levelled at us.

For some years the society has talked about standards of service, quality marking and accreditation. This time, however, we intend to develop the relevant policies and we are currently formulating proposals for a new approach to standards of conduct and service, which will be published as a consultation paper in the autumn.

This paper, which is being prepared by a working group of lawyers with the assistance of a reference group composed of non-lawyers, is not a threat, nor is it a panic response to the commission; it represents the opportunity for the legal profession to debate seriously for the first time in many years what actually sits at the heart of legal practice and to spell out what lawyers stand for.

As for standards to ABSs, it is fair to say that the society has not so far recorded a resounding welcome for the Clementi portfolio of reforms and we remain sceptical on certain of its ideas, for example a Legal Services Board, which we believe to be unnecessary, especially in a small jurisdiction such as Scotland.

But we recognise that there are extremely serious issues to be debated in the ABS area. We are keenly aware that the debate highlights the competing imperatives of access to justice and competition.

The public interest looms large in the debate, not least in the overriding requirement that whatever business structures are allowed in the future, the public interest demands that there must be a proper and effective regulatory regime to guarantee that the highest standards of legal services continue to be the minimum acceptable level.

So what then are we actually doing to take the debate forward and what is our timetable? We do not have a lot of time, but we are determined that all views must be heard.

The clock is ticking even before the Legal Services Bill is brought into law. The society believes that we must try to have a developed view on the options by no later than the end of this year. To that end we are preparing a consultation paper, which we intend to publish in the autumn. That will, we hope, look at each of the known options so far as ABSs are concerned and we will invite comments to be considered by the society’s council very early in 2008.

There is a very close link between these two projects: standards and ABSs. If we can develop a regulatory regime for ABSs to complement the regulatory regime for individual solicitors, then that might ease concerns on the regulation of new business structures.