In recent years, the Law Society has taken steps to counter the view that it is not interested in the affairs of solicitors who practise commercial law. Most notably, it has formed a City and International division, and appointed a former partner in a globals law firm, Stephen Denyer, to head the division.
In the same period, the Law Society Gazette (in many ways a public face of the Law Society, despite its editorial independence), has increased its coverage of commercial law topics.
Yet the impression persists that the Society cares more about the interests of solicitors who practise traditional, non-commercial law subjects than those of commercial lawyers.
When lobbying government or engaging in public debate, the Society has several roles. One is summarised in its recent strategy document: ‘We represent solicitors by speaking out for justice and on legal issues.’ At a time of cutbacks in government budgets in relation to justice and legal issues, it is not surprising that the Society is very busy in lobbying on those issues. Most commercial lawyers would accept that it is important for the Society to do so, even if they are not directly affected by them.
But in focusing on these important issues, the Society should not neglect the interests of those solicitors who are not affected by them. The Society should give ‘quality time’ to those interests and be seen to do so.
In recent decades there has been a huge growth in the number of solicitors, including in-house lawyers in commercial companies, and increasing numbers focus on commercial law subjects. Is there a case for saying that the Society has not ‘caught up’ with the changing demographic of solicitors in England and Wales and is institutionally neglectful of commercial solicitors?
To test this question, it is instructive to compare the data on what solicitors actually did in 2015 with the make-up of the Law Society’s Council. Specifically, does the Law Society’s elected body have a proportionate number of commercial solicitors? (Other tests, such as the relatively small number of Law Society committees, sections and divisions that focus on commercial law subjects, are a subject for another day.)
The Law Society’s Find a Solicitor database allows one to search for individuals who specialise in particular subjects. Like Heinz’s varieties, the database has 57 subjects on which a search can be performed. The search results reveal the total number of solicitors who practise in each area. There is inevitably some overlap, as a solicitor can nominate more than one area of specialisation, but the data is useful nonetheless.
Searches (all conducted in late December 2015) revealed that in 15 of the 57 categories the database listed more than 10,000 solicitors. This is a convenient cut-off point for looking at the dominant areas of practice of solicitors in England and Wales. I have taken the liberty of adding a 16th to the list, as ‘intellectual property’ came just under this threshold, at 9,832, and the next largest category, ‘financial services’ has a much lower figure.
The list, ordered by number of solicitors, follows:
1 Company/commercial – 28,409
2 Litigation, general – 26,830
3 Commercial property – 22,461
4 Commercial litigation – 21,417
5 Conveyancing, residential – 17,265
6 Private client, wills – 14,641
7 Employment – 14,639
8 Family – 14,397
9 Corporate finance – 14,357
10 Personal injury – 13,705
11 M&A – 12,645
12 Crime, general – 12,497
13 Landlord and tenant, residential – 11,933
14 Advocacy – 11,526
15 Banking – 10,489
16 Intellectual property – 9,832
Readers will immediately spot the number of commercial law subjects in this list. The most popular area of practice in 2015 is company/commercial law, with over 28,000 practitioners. Would one realise this from looking at the activities of their representative body?
The list also has several other commercial law topics, including employment (which can be commercial or litigation, or even private client), corporate finance, M&A, banking and IP.
Another way of looking at these legal subjects is to say that they fall in four broad categories:
C Real property.
D Private client, including family, and wills.
Now let us look at the membership of the Council. Under the current constitution, there are 100 members, of whom 61 are representatives of geographical areas, and up to 39 are representatives of ‘special interests’.
The geographical constituencies may or may not fairly reflect the demographic make-up of solicitors in England and Wales. For the purposes of this article, let us assume that the constituency boundaries and numbers of people per constituency are reasonably fair, and that there are no ‘rotten boroughs’. There is a further question as to whether the elected representatives of those constituencies include a reasonable number of commercial lawyers. Let us leave both of those questions for another day.
Instead, let us focus on the 39 who do not represent geographical constituencies. From a quick count, my impression is that 35 special interests are represented, suggesting that four places are unfilled. I have broken these down into the following categories:
Legal-subject-based categories (13 categories, 13 members):
Employment Lawyers Association; EU matters; international practice.
Association of Personal Injury
Lawyers; civil litigation; Forum of Insurance Lawyers.
Commercial property; residential conveyancing.
Child care law; criminal defence; housing law; immigration law; Private Client Section.
Solicitor-focused categories (14 categories, 22 members):
Black Solicitors Network; Commerce and Industry Group (2); Crown Prosecution Service; ethnic minorities (3); Government Legal Service; Junior Lawyers Division (solicitor member) (2); Junior Lawyers Division (trainee/student member); Law Management Section; Lawyers with Disabilities Division; Lawyers in Local Government (2); Legal Aid Practitioners Group; Solicitor Sole Practitioners Group (2); voluntary sector; and Women Lawyers’ Division (3).
The organisation of these lists could be challenged. One could argue that the two representatives of the Commerce and Industry group should be put in the commercial law category, but that might not be thought correct by the many thousands of lawyers in private practice who advise on commercial law. Or one might argue that EU matters is not a commercial law category. (Question: why did we need an EU focus in 2015; the EU pervades everything and is not a specialist subject anymore.)
However you slice it, these lists suggest to me a significant shortage of representation in the category of commercial law, in two respects: a lack of representation in the legal-subject categories, and a bias away from commercial law in the solicitor-focused categories. The latter point may be considered more controversial and more difficult to prove.
Arguably, some of the latter categories are represented on Council to redress an imbalance or favour a disadvantaged group. In principle, this is a laudable aim (though one might question the overall proportion of Council members – nearly a quarter), but it should not be done at the expense of representing one of the ‘big four’ constituencies, particularly if that big constituency – commercial lawyers –is not being given fair representation elsewhere.
If special interests are to continue to be represented on Council, there should be several more representatives of commercial law, and probably some of the existing non-commercial categories should be combined into one. As a start, if it is correct that four special interest seats are unfilled, how about immediately introducing Council members to represent the following interests: City and International Group; business law; employment law; and corporate finance. This would not require any change to the Law Society constitution.
This is only a starting point. The Society has recently announced that Dr Nicola Nicholls LVO is to conduct a review of its governance arrangements. I hope that this review will make proposals to ensure that the four big practice constituencies – commercial, litigation, property and private client – are all fairly represented in the constitution and future activities of the Society.
Mark Anderson is chairman of the Law Society’s Intellectual Property Law Committee. He is writing in a personal capacity