Break for the border

With the scottish parliament reviewing the regulation of the legal profession in scotland, lucy hickman asks lawyers who have worked in both jurisdictions what lessons can be learnt

The Law Society of Scotland is not too happy, for the Scottish Parliament's Justice 1 committee has announced a wide-ranging review of the legal profession's regulatory regime in Scotland.

And it has given the society just eight weeks to come up with a written submission.A society spokeswoman says: 'One of the concerns with the written responses is the timescale.

All organisations and individuals consulted have only eight weeks over the summer, when many people take their holidays, to respond to the inquiry.

The period seems short for such an important inquiry with so many organisations and individuals to be consulted and potentially affected.' However, she adds: 'We welcome it as a statutory organisation which is given the powers it has.

Review of the system is a valuable part of the process.

We hope that it will bring opportunities to improve what we do as well as the way the systems work as a whole.'The review will cover all branches of the legal profession in Scotland, including solicitors, advocates, judges, and qualified conveyancers, and it will also examine how other advisers, such as non-legally qualified claims assessors and advice agencies, are monitored.It aims to test the effectiveness of the current regulatory regime, in light of the fact that, according to the Scottish Parliament, 'a clear regulatory framework for some of those involved in the provision of legal services in Scotland may be absent'.The society spokeswoman says that, given the wide remit of the inquiry, it is too early to say what aspects the review will focus on, but consumer protection is likely to be high on the agenda.She says: 'We are concerned that consumers have adequate protection.

The society has two yearly inspections of all practice accounts, the master insurance policy ensures that solicitors in private practice have adequate insurance cover, the guarantee fund is a unique consumer protection, the rules of the society ensure good practice as do continuing professional development criteria, the training at university and so on.'Scottish solicitors therefore present a battery of protection for clients which is unrivalled.

There are organisations offering legal services which do not have the same range of protections.'The Scottish Parliament's scrutiny will run in parallel with the society's own review of its systems which is already under way.

The spokeswoman says: 'We are considering ways in which regulation from education and training to admission, the guarantee fund and the master insurance policy could be improved.'The Law Society of England and Wales has been asked to submit its opinions on effective regulation - a move that has been cynically received by some lawyers.

One lawyer, who has worked in both jurisdictions for a number of years, and asks not to be named says: 'I think it's a bit rich to ask them [England and Wales] to give advice to Scotland on regulation.

As far as complaints handling is concerned, Scotland is streets ahead.'Nick Scott, a former Clifford Chance lawyer and now a commercial property partner with Edinburgh firm Brodies, says: 'I wouldn't regard the Scottish Law Society as inferior.

I'm not sure what it could learn from the English Law Society.' Hugh Bruce-Watt, a commercial property partner with City-based Masons, spent 12 years as a lawyer in Scotland before making the trip to work south of the border six years ago.

He maintains that both jurisdictions face many of the same problems and could learn a lot from each other.

'The same regulatory issues arise.

The basis of self-regulation, and the worries that go with that apply in both jurisdictions.

We face the same criticisms for being self-regulatory.'Successive governments all want to have a look at the legal profession because people see the law societies and the profession as a whole as a closed shop.

It's always a good vote-winner.

It will be interesting to see what the new parliament will do.

It may take a stringent view of regulation and be able to effect change because Scotland is so much smaller.

I suspect though that nothing new will come out of it.'Both law societies have to tackle issues such as multi-disciplinary practices and fee-sharing, which are of particular interest to firms like ours.

The English Law Society has been exposed to these kinds of things in more detail and for longer because Scotland is so much smaller.'Mr Bruce-Watt says that both jurisdictions could learn from each other.

He points out: 'Each system does things better than its counterpart in different areas.

For example, England could learn from Scottish residential conveyancing.

England has already tried to emulate this to some extent with the seller's pack and so on.'Efforts to introduce solicitor property selling in England are being pioneered by Edinburgh Solicitors Property Centre; Scottish solicitors sell almost half the houses north of the border.

Mr Scott says one of the main things Scottish law firms could learn from their English counterparts is their use of technology.'In terms of technology the Scottish market is behind the way English City firms operate.

In terms of speed of response to clients we need to catch up with English firms.

It would be nice if we could learn to bill like them too, their fees are so much higher.'The top-end English firms are such big organisations and the way they run, manage and organise themselves is generally more advanced than Scottish firms.'Sandy McEwen, managing partner of the Glasgow office of Tods Murray, qualified as a solicitor in Scotland but went for dual qualification in 1996.

He says: 'We do a lot of cross-border work, and clients increasingly wanted to do deals down south.'He also specialises in commercial property, and says that although in his field there are many differences in approach in terms of delivering results to the clients, the two systems 'are about equal'.Mr McEwan adds: 'Each system has features which can lend something to the other.

Both have their strengths.

In this day and age, even though Scotland has its own parliament and legal system, we have to have the ability to work in more than one jurisdiction.'Mr Scott says a regulatory review could indirectly help Scottish lawyers improve the service they provide.

'Such a review would help make people look at the way they run themselves and the quality of service they provide.

It could always do with a kick up the backside, but I'm not sure you get that by introducing regulations.'Mr Bruce-Watt says that there are pros and cons to the Scottish and English rules of disclosure.

'The Scottish system is much more transparent - you reveal what your case is at the outset while in England you don't really have to say anything unless you want to.

It's up to the other side to get it out of you.'He also points to the English lawyers' ability to rely on equitable principles, which do not exist in Scottish law.

'Scottish lawyers would say that the English are sheltered by the law of equity and that it gets them out of difficulties.

Scottish law is based on Roman law so in interpretation of a contract, it's what it says and is interpreted accordingly.

You don't have the ability to ask for equitable remedies.'For Mr Scott, the main benefit of working as a lawyer is quite simple.

'As far as lawyering goes, I'm quite happy in either jurisdiction because the type of work is pretty much the same.

But life is far easier north of the border.

You generally work less hours than in London so you get a better quality of life.'Lucy Hickman is a freelance journalist