Since Which? lodged it’s super complaint the future of legal firms has been in the balance. The subject of alternative business structures was debated Last month at a seminar in Glasgow organised by the Royal faculty of Procurators. The Firm was there to hear the arguments.

The Royal Faculty of Procuarators in Glasgow hosted a stirring and hotly debated event discussing the proposed alternative business structures that are likely to be introduced following the Office of Fair Trading’s response to the Which? ‘super complaint’. The event panel heard a keynote address by Justice Minister Kenny MacAskill in which he outlined the new Scottish Government’s determination to press ahead with reform. He therefore encouraged the profession to engage with the process as robustly as possible to ensure professional concerns were adequately addressed.
“We need to hold on to what makes us special, but let go of what may be holding us back. Some things that have ‘Aye been’, need to be challenged.
“No change is not an option. That has to be ruled out,” he said. “I want to look at the whole system, not just business structures, and I am setting up a group of key players in the business and legal world who can develop our thinking about the way forward. I will leave it for Lord Gill, the profession and others to work out where we go, but the current system is not operating. I can give you one assurance as a government. We will treat you with the respect you are entitled to.”
MacAskill also confirmed that the Government is reluctant to go down the road of regulating in favour of compulsory legal insurance, one option suggested that may improve access to justice.
The panel comprised Mike Dailly, principal of the Govan Law Centre, Roy Martin, former Dean of the Faculty of Advocates, Douglas Mill, Chief Executive of the Law Society of Scotland, and Magnus Swanson of Maclay Murray Spens, who found his views on behalf of the bigger firms in the profession to be somewhat marginalised.
“Why would you alienate the big firms?” he asked, calling for equivalence in the regulation of law firms in both England and Scotland.
“There must be a way through the conundrum of how to regulate the business entities that want to practice law. A dual approach should permit a system to be established that is not unduly bureaucratic. The likely scenario is you will have non-lawyer professionals or financial investors, whose interest will only be to behave absolutely in accordance with the core values of the profession. Otherwise, they will lose their investment. I don’t see the incompatibility.”
Mike Dailly was deeply sceptical of the entire perspective of the OFT and Which?, both of whom he believed did not represent the wider public interest, despite ostensibly acting on behalf of ‘consumers’.
“What sums up the OFT super complaint is the use of words such as ‘maybe’, ‘could’ and ‘perhaps’. There has been no real empirical evidence, yet we have ‘guesstimates’ that if we were to change the legal profession, things ‘could’ happen,” he said.
“We already know what WILL happen by looking at the overwhelming evidence. Could you imagine if all that stood between you, repossession, bankruptcy, the jail or never seeing your kids, was some bloke from the Northern Rock?”
“The OFT agenda has been driven by a handful of people in very large Scottish firms who want to be able to sell shares in their companies to a wider market so they can then prosper, and a misguided consumer lobby which does not represent the Scottish people. They would rather entrust legal services to the UK’s banks and supermarkets. This is at a time when the banks are being fined millions of pounds for subjecting customers to “lies, scams and threats” in the words of the FSA. These are our main UK banks,” he argued. He concluded with a warning that allowing speculative investors to participate in the ownership of law firms could restrict fundamental access to justice.
“How will allowing a few Scottish firms to be bought up by, for example Burger King, help the ordinary citizen gain access to civil justice? I don’t believe for a second that alternative business structures will do anything to help the most needy people in our society. If anything, it will undermine the robustness of an independent legal profession by enabling non lawyers – anybody - to gain access to control legal firms. The next step is to gain access to control justice itself.”
Douglas Mill, Chief Executive of the Law Society encouraged all members of the profession to respond to the Law Society consultation on the regulation of business structures on the Scottish legal profession: “At stake here is the nature of the legal profession in Scotland for the foreseeable future. We are now on the cusp of having to address non lawyer proprietorship. This is unexplored territory and requires serious thinking. This step is being forced on the profession, and everyone has to give profound and urgent consideration to this.”
“As a Scottish citizen, the main interest here, which has been forgotten about, is not the consumer interest, it is the public interest. The policy makers at the Law Society have to take the public interest into consideration. It is a much more profound, multi-faceted, deep seated interest, which could be badly damaged if this is not handled properly.”


At the Glasgow debate on ABS audience member, frank maguire of thompsons solicitors, took the opportunity to voice his concerns over the motivations behind some scottish law firms’ willingness to open themselves up to external ownership. During his passionate speech he made a very good point - are any of us really consumers of legal services? Here Frank outlines his thoughts on this important and fundamental issue.

Lawyers, and by that I mean solicitors and advocates, are portrayed today as obstacles to civil justice, enjoying monopolistic control of the legal market leading to high prices and commensurate profits.
The monopoly, it is said, must be broken. Legal advice and representation should be open to non-solicitors, solicitors and advocates practices should be open to ownership outwith the profession and even by such entities as banks, building societies and, no doubt, estate agents and claims companies.
The promoters of such an agenda are those who profess to represent the consumer, Which?, the magazine, has made a super complaint to the Office of Fair Trading which in turn has made a complaint to the Scottish Government. Lord Gill’s Review of our Civil Courts also has an inbuilt bias by the privileged position given to the Consumer Council on his Policy Group, to the exclusion of others.
The perception so far of lawyers’ reaction to this is that they are trying to defend a monopoly, making some concessions but still resistant to the inevitability of the ends of justice.
I, for one, reject the fundamental principle underpinning the whole debate, namely the consumer lobby’s assertion that justice is consumed. TVs, cars and no doubt bank services are consumed. Try telling families of the Stockline disaster, the recent tugboat incident, the husband of the family wiped out in a car accident from diesel spillage or someone dying from an industrial disease that they are consuming justice. They are consuming nothing. They have rights and it is the duty of society to uphold and create the conditions whereby they are addressed. That is not only for the sake of those aggrieved but also for our own sakes.
The first consumer principle that offends against these rights is that the user pays. By this I do not mean paying for their own lawyers, or the other side’s if you lose (which can be bad enough), but a pay as you go system for the very judges who are to hear your case. We do not accept such a principle when we go to the NHS, nor do we accept it for education so we should not be accepting it in our justice system. Victims of these disasters should not have to pay for judges. If they have to then that may frustrate, and possibly end, their efforts in pursuit of their rights. The only ones who benefit from this are those who can afford it which would generally tend to be those whose aim is to defeat those rights.
Then there is the question as to who is best placed to represent parties in pursuit of their rights. In our health service we do not accept that patients enter into a market where consultants and non consultants pitch for the business. What matters in the context of a rights based system should be that society ensures that we all have access to the best available.
As for the question of ownership by commercial organisations, we adhere to the principle that the right to health and education should be divorced from any such outside influence. In the context of justice, difficult and independent advice has to be given. The cry we hear from the consumer lobby is that independence can be catered for by yet more regulations. They fail to take into account what the cost of that regulation would be to implement and police and really no amount of regulation would overcome the “Romanov factor”.
I also find the “consumer rules” philosophy naïve. Consumers have been fighting banks which cream off money from customers, have been the victims of organisations such as Northern Rock who have made catastrophic commercial decisions, have been short changed by pension funds and life companies and yet this consumer lobby, which purports to represent consumers, want lawyers to be in hock to these kinds of organisation. The irony is that these very consumers will come to lawyers whom they will want to be independent of such commercial undertakings.
The consumer lobby has had too much influence so far in our Scottish society. It now needs to be checked and, instead, we should be reasserting a rights based system underpinned by an independent judiciary and an independent legal profession. Our efforts and resources should not be dragged into consumer debates but should be directed towards improving the legal professions and the judiciary to better facilitate and represent those who so badly need to be represented.