Collective bargaining

Solicitors have to accept the reality of consumer power and work with it, says David Mcintosh

It is always good to collaborate with other bar associations on issues of common interest.

I had an early experience of the success that such co-operative working can achieve in the first month of my presidency.

At the Canadian Bar Association Conference in August 2001, on behalf of the Law Society of England and Wales, I joined with other bar association leaders in successfully petitioning the US president to reprieve a young man, Napoleon Beazley, whose appeal to the US Supreme Court had failed.

On a split decision, the court had ratified a Texas death sentence despite the fact that Beazley was only 18 when he committed the crime.

While acknowledging that we agree on nearly everything of importance, it is just as important to respect and understand differences of approach among our various bars.

An example is the EU Money Laundering Directive, which affects the previously uncompromisable principles of lawyer/client privilege and confidentiality.

In England and Wales, we accept that, subject to proper protections and safeguards, lawyers should be under a duty to inform the authorities when they have grounds for believing that a client is involved in money laundering.

We believe that the duty of confidentiality can be over-ridden in the interests of the wider public.

We are aware that many of our colleagues in bar associations throughout Europe disagree fundamentally with our view.

What is important is that we conduct the debate openly, each recognising and respecting the other's position, in an effort to find a solution.

This is a particularly issue for those lawyers enjoying dual registration.

We also need to acknowledge the changes to the ways in which we are used to practising.

Some modifications, which were previously unthinkable, are now inevitable and desirable in order to meet changing consumer demands and the pressures from the government and the EU.

The Law Society is facing a challenge from the UK government, through the Office of Fair Trading, over the restrictions on solicitors providing legal services to the public.

We need to understand the reasons behind the pressure for these changes, which would allow solicitors employed by commercial entities to provide legal services to the public.

We need also to ensure that there is wider appreciation of the importance of the protection that consumers receive when their legal affairs are handled by solicitors in private practice.

In recognition of external pressures - the most important being the needs of consumers of legal services - the Law Society, led by the regulation review working party, is debating and considering the merits of lawyer-led and controlled multi-disciplinary practices.

Likewise, we are looking at the possible advantages of allowing solicitors to share their fees with others.

We are also modernising our rules relating to conflict and confidentiality at a time when others, particularly the large accountancy firms, are under attack following the Enron case.

We favour MDPs, provided they are controlled by lawyers and governed by our rules of conduct and ethics.

However, the advent of solicitor-controlled MDPs is at present still-born because the UK government has failed to find time for the legislation we need if we are to regulate non-lawyer participants in solicitors' practices.

This is paradoxical because ministers are in favour of MDPs.

Ultimately, the MDP debate may be overtaken by the possibility of English and Welsh solicitors being permitted to share their fees with others.

The effects of that could be to give commercial enterprises - even supermarkets - close associations with an English law firms.

This possibility is the subject of a consultation with our entire profession and the result will be debated by the Law Society Council this week.

It will only be allowed if we can ensure that the essential consumer protections are preserved in full.

Those protections include the assurance of independent advice.

We believe that this open-minded approach is in the interests of our members and the consumers we serve.

We believe that setting ourselves implacably against any changes would be likely to backfire on us and our clients.

By demonstrating our own consumer awareness, we expect to strengthen our hand in responding to unwelcome pressures for change by being able to emphasise that, as a modern regulator, we are consumer-sensitive and not self-protectionist.

There are no governments that favour lawyers and do not favour consumers.

Lawyers need to recognise this.

I hope I have gone some way to dispel any thoughts that the English and Welsh solicitors' profession is behaving in a maverick way.

We believe that it is important to be open to new ideas, even if they were previously unpalatable.

All bar associations need to work together with an understanding of differences as they combine on common causes.

The successful Napoleon Beazley intervention was served by weight of numbers.

Other successes are within our collective grasp.

David McIntosh is the Law Society President