The Law Society of Scotland (LSS) has opted to 'avoid polarisation' by rejecting a separation of its regulatory and representative functions, it revealed this week - as the Law Society of England and Wales prepares to send out a postal ballot to members over its own separation plans.

In its response to a Scottish Executive consultation on proposed changes to the profession's complaints-handling and regulation, the LSS said it would be 'dangerous' to 'shoehorn Scotland into the recommended answers [to the Clementi review] for England and Wales'.


The LSS response pointed out that the 'regulatory maze' criticised by Sir David Clementi in his review of the profession in England and Wales does not exist north of the border. It emphasised that the 'complaints-handling crisis' identified by Sir David does not apply in Scotland.


It argued that the size and scale of the Scottish legal profession makes splitting functions 'considerably more difficult' than south of the border. Maintaining the dual role of the LSS's council would mean that 'the solicitor's interest is balanced by public interest consideration' in its decision-making.


LSS director of law reform Michael Clancy said: 'We took the view that the Society's objectives to promote the interests of the solicitors' profession and the interest of the public enhances its role rather than making it more difficult to operate. A strict split would mean the representational body would have the interest of its members at its heart, and would not be tempered by public interest... We wanted to avoid polarisation.'


On complaints, the LSS has rejected four models put forward in the consultation and proposed its own, under which four non-solicitor members would be added to its 53-member council, and there would be greater accountability and separation of the Client Relations Office, which deals with complaints. However, it will not be completely separated from the society, as is expected to take place in England and Wales under the Clementi reforms.


The LSS also proposed an independent legal profession appeal tribunal for solicitors to appeal disciplinary findings made against them.


Mr Clancy added: 'Some of our proposals, such as the addition of non-solicitors to the council, can be done internally. But others, such as the creation of a legal profession appeal tribunal and reform of the Solicitors (Scotland) Act 1980, will depend on the executive's reaction to the proposals.'


Last month, opponents of the Law Society of England & Wales's plans to hive off its regulatory function won the right to a postal ballot on the issue, though the outcome will not be binding on the council (see [2005] Gazette, 21 July 1).