The Scottish Parliament’s inquiry into the legal profession must not be sidetracked by issues of complaints and malpractice, says David Ross. Far more important is a review of the division between advocates and solicitors which is driving up costs for clients

The wide-ranging inquiry by the Justice 1 Committee of the Scottish Parliament into the regulation of the legal profession in Scotland is to be a major review. Its research is to be led by a research professor in law at Nottingham Trent University – presumably in the interests of impartiality.
Supervision of the Law Society is a matter for which the Scottish Parliament is responsible and it holds within its grasp the potential to contribute to the creation of a legal profession for the 21st century.
The inquiry should look at whether the general public benefits from the division between advocates and solicitors in Scotland, and whether the Law Society of Scotland can still be both a gatekeeper of the public interest and a regulator of solicitors. However, I am concerned that a disproportionate amount of time may be spent on the issue of complaints.
Scotland, England and Wales are unusual in having a legal profession that is so structurally divided between advocates and barristers on the one hand and solicitors on the other. As Chairman of the Euro-American Lawyers Group, which is a group of some 24 law firms with representation in almost all the capitals of Europe, Eastern Europe and in the US, I know my colleagues in the group find the distinction strange. In none of the other jurisdictions of group members does such a division between advocates and solicitors exist – and who is to say that their quality of justice is less than in the UK?
Of course the barriers between solicitors and advocates have been removed to an extent. Solicitor Advocates are one result – my own firm has two. Surely now is the time to ask whether the public is still best served by having this division. As the law has become increasingly complex, an increasing number of lawyers are specialising in relatively narrow areas of the law. Expertise is spread between the Bar and solicitors. Surely advocacy is another specialism that could be accommodated within the structure of solicitors firms. Most importantly, why should the client pay for the cost of this division.
The dual responsibility of the Law Society of Scotland for promoting the interests of the profession in Scotland and the public in relation to that profession is not always an easy role.
There can be conflicting requirements between large firms and small firms, far less between public and solicitors. However, alternative structures such as the division of responsibilities between the GMC and the BMA appear to create their own concerns. The Hughes Royal Commission in 1980 recognised the benefits to the public of the Law Society having this dual role. I think they would reach the same conclusion today. There is no doubt that there is some public concern about the ways in which complaints about solicitors are handled and solicitors are disciplined. However, I am concerned that the review may become too preoccupied with this issue.
My experience of European and US law firms tells me that the financial protection provided to clients in Scotland (as in England) is at least as great as anywhere else in the western world and greater than many places. The disciplinary procedures involve a real measure of lay involvement. I do not think self-regulation in this manner is really wrong in principle. After all, both the Scottish and the Westminster Parliaments believe strongly in it for their own members. As a result, I hope that the inquiry can resist seeing more regulation as the answer. Recent examples in the insurance industry prove that is by no means always the answer.
There are human errors in every industry including the legal profession. I trust, however that the inquiry, when looking at complaints, will view objectively the performance of Scotland’s legal structures before deciding whether it is necessary to add further regulation. Most of all, I hope that the inquiry will be bold enough to address the wider issues that should be addressed in order to nurture a profession fit for the 21st century instead of getting sidelined with the issue of malpractice.
David Ross is senior partner and chairman of Scottish firm Biggart Baillie.