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Who should regulate Solicitors?

By Michael Sheridan

Please find below some materials which contribute to this important debate and please consider sending your own point of view to secretary@slas.co.uk.

Notice is hereby given that the Annual General Meeting of the Scottish Law Agents Society will take place on :-

THURSDAY 20TH JUNE 2019 at 5.30PM At ROYAL FACULTY OF PROCURATORS, NELSON MANDELA SQUARE, GLASGOW.

The offices of President and Vice President become vacant and there are a number of vacancies on the Council and members are invited to nominate candidates. Nominations must be in the hands of the Secretary not later than 28 days before the AGM, ie. by 5pm on 23rd May 2019.

Agenda

  1. Sederunt and Apologies
  2. Minutes of AGM 2018
  3. Annual Accounts
  4. The President’s Annual Report
  5. Election of Office Bearers
  6. Issue for Discussion - Representation of the solicitors profession in respect of current proposals for statutory regulation.
  7. SLAS Consumer Group- Report by Ian Ferguson
  8. Any Other Competent Business

Members, whether intending to attend the AGM or not are invited to send in their views for publication on the above, or any other topics, beforehand by email to secretary@slas.co.uk. Anonymity shall be preserved where requested. See website www.scottishlawagents.org for further details of AGM.

Michael Sheridan,Secretary

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2. Dancing to the Executive Jig

Members may be considering whether the future regulation of the solicitors’ profession will be maintained by the Law Society of Scotland or whether it will fall to the new Independent Regulator presaged by the Roberton Review. SLAS Council might be prevailed upon to convene a debate and seek to establish a consensus as to the preferred way forward. Members are invited to inform Council by email to secretary@slas.co.uk whether they would wish such an opportunity.

We are faced with a choice between, on the one hand, a body in which solicitors are excluded by a statutory constitution from the majority and from the chair of the regulatory authority and, on the other hand, a body in which solicitors are excluded by a statutory constitution from the chair and from the majority of the regulatory authority.

There may be other factors which actually distinguish the two options but is clear that the executive intends that the legal profession will be regulated in future by a statutory authority without interference from any solicitors’ Council or judicial authority. Both bodies will dance to the same Executive Jig. The real question for debate therefore does not concern which of two statutorily controlled bodies will regulate the profession but, rather, how will the solicitors’ profession exercise any influence in that regulation. It seems likely that the solicitors’ profession will not have any voice in these seismic changes or in the ongoing regulation unless they make that voice themselves. It is a bit like our pensions. At this late stage, the profession might seek out its own representative body, supported by a full time office, employing research staff to keep the profession fully informed as to regulatory developments and requirements and to assist in the formulation of such strategies, submissions and, wherever required, legal action as may be required to maintain the vigour and independence of the profession in the face of statutory incursion. This is a challenging project which would call for near unanimous commitment around SLAS and in the wider, practising profession.

Members are invited to start the ball rolling by notifying their support in principle for taking the project forward, by email, as soon as possible and, at the latest by the end of April. Members who do not respond will be of exactly the same effect as voting against the project.

See also the agenda for the SLAS AGM on Thursday, 20 June 2019 from 5:30 PM at the Royal Faculty of Procurators in Glasgow and all members are invited to attend either personally or by representation.

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3. Seismic Change

This is a period of seismic change in the regulation of the legal profession. Whereas previously there was a long-standing consensus that the solicitors’ profession be regulated by a Council of Solicitors at the Law Society and that the specialist branch of advocates be regulated by the Faculty of Advocates within the College of Justice, both subject to the oversight of the Lord President of the Court of Session, the government now appears to be considering the exclusion of solicitors and advocates and judicial oversight from that regulation. These conclusions follow from the Legal Services (Scotland) Act 2010 and from the terms of the Roberton Review which set out a stall at which the regulation of legal services shall be transferred from the judicial to the executive (government) branch of state authority. However, given that the government itself is frequently a party to actions in the courts, there is serious doubt as to the propriety of that government having regulatory control over legal representation at court.

That regulatory control governs the education and training of future lawyers, their admission to the profession, their conduct as legal representatives and, indeed, their ongoing suitability to continue to practise as lawyers. It includes power to censure, fine and exclude from practice those lawyers who are found to have been of unsatisfactory standard. Should one side of a legal dispute really have those powers over the legal representatives of the other party to that dispute? One should perhaps reflect upon the recent court action involving the government and a former first minister and the difficulty that any lawyer would have had in calling their own regulatory master to account for the mismanagement of its own process. One might conclude that the regulation of the legal profession should be a thoroughly independent process, not under the control of a potential party to proceedings in court.

It seems that the legal profession itself will have no voice in these seismic changes or in the ongoing regulation unless they make that voice for themselves. That profession might look to setting up its own representative body, supported by a full time office, employing research staff to keep inpidual members of the profession fully informed as to regulatory developments and requirements and to assist in the formulation of such strategies, submissions and, wherever required, legal action as may be necessary to maintain the vigour and independence of the profession in the face of statutory incursion, a facility which is entirely lacking at present. This is a challenging project which would call for near unanimous commitment around the practising profession. The Scottish Law Agents Society (SLAS) aims to start the ball rolling by calling for a meeting of all interested persons and bodies to coincide with its own AGM on Thursday, 20 June 2019 from 5:30 PM at the Royal Faculty of Procurators in Glasgow. This meeting shall address the following questions:- has the government indicated an intention to transfer the regulation of legal services from the judicial to the executive (government) branch of state authority ? Would such a transfer be consistent with the rule of law with particular reference to the doctrine of the separation of powers? What, input, if any, should the legal profession itself have into the regulation of that profession ? Would that transfer be in the interests of the public? To what other issues do these proposed changes give rise?

However, neither the law of Scotland nor the legal process including the regulation of lawyers belongs to the government or to the legal profession or to anyone other than the Scottish public and this is clearly a time when members of that public might wish to reflect upon these issues and raise relevant questions or make their own recommendations by whatever means they see fit and these would be particularly well received by our Society by email at secretary@slas.co.uk. The Scottish Law Agents Society hopes for a wide debate which shines a light on all the issues and interests and arrives at a solution which guarantees each member of the public access to vigorous and independent legal representation when it is needed. Read more at www.scottishlawagents.org

Michael Sheridan,May 2019

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4. Ken Swinton’s article from the Gazette Vol 87-1 published April 2019

Regulator lessons from south of the border: ICAEW v Lord Chancellor

The regulatory landscape for legal professions in England and Wales differs quite markedly from that in Scotland. As a result of the Legal Services Act 2007, south of the border, the Legal Services Board [LSB] was created as a new super-regulator which in turn authorised front-line regulators to license inpidual practitioners and entities. The most familiar front-line regulator is the Solicitors Regulatory Authority [SRA] which licenses solicitors, legal firms and English ABS entities. For a number of years the Institute of Chartered Accountants of England and Wales [ICAEW] has held authorisation from the LSB to licence its members, with suitable qualifications, to undertake probate business. In 2016 the ICAEW sought further permissions in relation to rights of audience, conduct of litigation and reserved instrument activities but only in relation to taxation services. In December 2016 ICAEW sought to vary their application to restrict its ability to authorise persons carrying on rights of audience and conduct of litigation to qualified lawyers only. It argued that otherwise it would have to offer appropriate legal training courses for those intending offering the services and this would take time and money which it did not wish to outlay without evidence of demand for the take up of such courses. This would have had the result that ICAEW would regulate the entity and those providing the services would be regulated in the main by the SRA. Of course the entity would also contain other professionals who would be regulated by ICAEW or elsewhere. This was really a cheeky attempt at regulation on the cheap and might be seen by some as an attempt to woo legal practitioners who had become disillusioned by the SRA’s costs and allegedly ‘principles based’ regulation.

ICAEW has both regulatory and representational functions in relation to chartered accountants. It has a Council which is responsible for strategy and budget. Council is assisted by a Board which deals with policy, operational matters, implementation of strategy etc. In addition it has a regulatory board [IRB] which deals with standards and discipline. In many ways this is similar to LSS organisational structures. When ICAEW was authorised in relation to probate services it established a probate committee which dealt with standards and discipline in relation to probate services but was not answerable to the IRB. It is made up of equal numbers of professionals and lay members with a lay chair with a casting vote. As part of its new application ICAEW proposed expanding the committee and renaming it the ‘Legal Services Committee’. It was necessary for the LSB to consult with statutory consultees in relation to the application in terms of the 2007 Act. The Competition and Markets Authority was generally supportive. The Consumer Panel again was generally supportive but expressed concerns about how the limitation on services ‘in relation to taxation’ was to be achieved and also had concerns about the regulatory independence of the proposed Legal Services Committee. The Lord Chief Justice was concerned about ICAEW not providing education courses nor authorisation of inpiduals. He was also concerned that there was a danger of regulatory arbitrage with a race to the bottom likely in the event the application were to be granted.

In relation to notarial services ICAEW proposed authorising inpidual and entities and the Notaries Society and Master of Faculties both expressed concerns about the international recognition of instruments administered by notaries should the application be granted.

ICAEW also proposed ‘information remedies’ which would set out the limitations of the services to be provided thus seeking to address the information asymmetries which clients would otherwise face. The Consumer Panel asked ICAEW to conduct research into the potential clients and the effectiveness or otherwise of such notices as part of the terms of engagement process.

The Lord Chief Justice opposed the application because of the uncertainty and confusion in the proposals.

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