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The Legal Profession in Scottish Society

Special Reports

Eilidh Wiseman, President of the Law Society of Scotland looks at the role of the legal profession in Scottish society and,the challenges faced by the legal industry in Scotland inthe 21st Century.

For over 60 years, the Law Society of Scotlandhas acted as the professional body for Scottish solicitors and the key guardian of the public interest in relation to the solicitor profession and the wider justice system. Our interaction with our members aswell as the public gives us a unique perspective, not just on legal matters but on many of the wider issues facing Scotland. The Scottish independence referendum in 2014 attracted a record level of political engagement and a quite astonishing turnout at the polls. Following the UK general election in May 2015 and this year’s Scottish parliamentary election, it is vital that the political parties continue to engage the electorate, harnessing the current interest and enthusiasm.

This gives us an important and prominent role in civic Scotland; acting as one of the pillars of pluralism and independence in society. As the professional body for over 11,000 solicitors, who collectively engage with millions of people and across a wide spectrum of issues, we are able to access a broad base of experience and expertise.

Our Council and committees are made up not just of legal practitioners, but also academics and other experts from outside the profession.

As the statutory regulator of the legal profession, we work to ensure the highest possible standards. We also have a duty of care to the public to ensure they have an awareness of their rights and how they can access the Scottish justice system. For these reasons, we have a particular interest in good governance and the creation of good law. We respond to public consultations and recommend detailed amendments to political representatives during the legislative process.

We are a strictly non-partisan organisation and engage regularly with the Scottish Parliament’s committees and with individual MSPs from across the political spectrum. Our objective is to assist in making good law that is coherent, practical and easy to understand.

The Law Society promotes access to justice through a range of activities, from supporting pro bono initiatives by solicitors, to campaigning for an effective legal aid system, and making recommendations
for a better justice system. Access to justice is under pressure in many ways. A lack of availability of legal aid as well as court and tribunal fees all present
difficulties to people who lack sufficient resources to pursue their cases. Legal Aid, the system of publicly funded legal aid in Scotland, is a mainstay of access to justice, providing help in around 270,000 cases each year. Ensuring that all those who require help from a solicitor, whether for civil or criminal matters, can access that support is crucial for a fair society and a properly functioning justice system.

In our 2015 recommendations paper on legal aid, we stated that the system needs simplification so the public can understand it more easily and it is more
effective for practitioners. It needs revision to deal with developing human rights in Scotland. It also needs proper funding, having declined significantly in real terms over the last two decades. Public funding is an issue for all frontline services, but given the high prevalence of justice problems and the social, emotional and financial cost of leaving these unresolved, investment to halt the ongoing real terms decrease in legal aid funding is crucial. A cost-benefit analysis demonstrates that legal aid spending results in substantial savings to the public purse and the wider economy further down the line. A 2010 Citizens Advice report estimated that for every £1 spent on legal aid in England and Wales, the state saved £2.34 on housing advice, £2.98 on debt advice, £8.80 on benefits advice, and £7.13 on employment advice.

Lack of investment in legal assistance has made it increasingly difficult to maintain a sustainable, high-quality legal aid system across Scotland. A failure to fund the system properly will lead to advice deserts.

Significant developments in online dispute resolution have taken place in other countries. In England and Wales, for instance, it is already possible to access telephone mediation for small claims, and the facility to conduct this online is being developed.

For less complex disputes, we believe that this would be an effective use of technology in Scotland. The legal services market is undergoing dramatic change. Legal services are being delivered in new and innovative ways. There are more cross-border firms, an increasing internationalisation of legal services,
changing demands of clients and advances in technology. All are impacting on the Scottish legal profession, businesses and consumers. The legal profession and legal services market is critical to Scotland's economy and society and to the maintenance of the rule of law.

Trust in the Scottish legal sector remains high. Independent public polling has shown that 90% of the Scottish public are satisfied with the services provided by their solicitor and 82% would recommend their solicitor to others.To ensure this is maintained and built upon, it is important that the solicitor profession has the ability to meet the evolving expectations and demands of clients within a modern flexible framework which can meet the unprecedented, and unforeseen, changes we have seen over recent years and those ahead of us in the future. Regulation of the legal services market is an essential component which contributes to the rule of law, the proper functioning of the justice system, the economy and society in general. Central to any regulatory framework is consumer protection.

The present legal framework surrounding the Scottish legal profession is, in effect, a patchwork of legislation. The underpinning and central piece of regulatory legislation is now over 30 years old. The legal, economic and social landscapes have significantly evolved since the Solicitors (Scotland) Act 1980 was introduced. Solicitor numbers have more than doubled, with a third of solicitors now employed in-house. They are also working in a much more diverse legal sector, where larger firms have materialised over recent years to exploit the opportunities of the globalised legal market. Although large commercial and international firms are more prominent, smaller private and general law practices still continue to operate, many serving rural communities. These smaller private practices are key in providing important and much needed legal services to members of the community who may have difficulties in accessing legal services otherwise.

Although many of the provisions of the 1980 Act continue to work well, the law needs to be modernised to support and facilitate the evolution of new business structures and advances in technology.

The current legal services market requires a modern, transparent, responsive and adaptable regulatory framework to ensure that, through the Law Society, the Scottish solicitor profession can continue to deliver a competitive world-class service to Scottish,UK and global businesses and consumers.

The legal sector in Scotland now contributes over £1.2 billion to the Scottish economy each year. It is responsible for over 20,000 highly skilled jobs. The services provided by solicitors are critical to the smooth running of the economy, not least in the property market and helping people to set up their own businesses.

The growing numbers of in-house solicitors also make a critical contribution to the success of the companies and organisations that employ them.

Many of the sectors upon which Scotland depends so heavily including energy, financial services, the life sciences, food and drink all rely on high-quality, expert legal services to thrive, whether they are provided in-house or through private practice.

Put simply, a successful Scotland needs a successful Scottish legal profession. Following a pronounced and protracted economic downturn, there is strong evidence to show that the Scottish economy is on the road to recovery. Nevertheless, external challenges in the Eurozone and other international economies, along with the recent significant reductions in the price of oil, demonstrate how the economic recovery cannot be taken for granted. One of the most welcome developments of recent years has been the growing recognition within government of the importance of our legal sector, not just to civic

Scotland but as a significant economic generator in its own right. Many firms are now looking to expand – at home and internationally - and recent initiatives such as establishing the Scottish Arbitration Centre have served to highlight Scotland as an effective location for international dispute resolution.

In the legal sector, the Scottish Government has encouraged a spirit of partnership between professional bodies, business groups and government agencies to support law firms and to promote the Scottish legal jurisdiction throughout the world.

The Scottish Government’s economic strategy is critical. It already has important powers to encourage entrepreneurship and innovation and support businesses to grow and create new jobs. This is especially significant for the legal sector given that the vast majority of our legal firms have three partners or fewer, with half of those working as sole practitioner businesses. The Scotland Act 2016 has given additional powers to the Scottish Government which will allow it to support a growing economy. We will be looking to what they do with close interest.

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