The rise and fall of the Law Society Empire

“Integrity is the key to understanding legal practice. Law’s empire is defined by attitude, not territory, power or process.” Ronald Myles Dworkin QC

The Rise of the Law Society Empire

The Law Society formed in 1825 and gained a Royal Charter from Queen Victoria in 1845, allowing it to govern its own affairs. Through the 19th and 20th centuries, its power grew, as it took on responsibilities for disciplining members, issuing practicing certificates, overseeing legal education, and running the legal aid system for England and Wales. This created a single, powerful body that controlled almost every aspect of a solicitor’s professional life.

I reflect on the achievements of distinguished solicitors from the past. Isaac Foot, a solicitor, introduced the 1929 Poor Prisoners’ Defence Act, which was the precursor to the 1949 Legal Aid and Advice Act. He said, “that a poor prisoner should be in no worse position to defend their innocence than a rich prisoner.” Powerful words. Sir David Napley, past president of The Law Society, wrote in his book ‘The Technique of Persuasion’ that ‘we earn fees to be professionals’. Again, inspirational word by a Law Society President. There is no doubt that the Law Society was at the height of its influence going into the 1980s. Successive governments respected the Law Society and politicians deferred to it when consulting on new laws. The Law Society was monarch of all it surveyed in the legal landscape as champion of the rule of law.

The Fall of the Law Society Empire

The Clementi Review investigated what it described as the ‘legal services market’. It concluded that the system was “out-dated, inflexible, over-complex and insufficiently accountable or transparent”. The review recommended splitting the Law Society’s regulatory and representative functions to promote ‘competition’ and better protect ‘consumers. Following the Clementi review, the government produced a White Paper with the subtitle “Putting Consumers First.” This consumerist subtitle was an omen of things to come. It also suggested a fundamental misunderstanding at the heart of government of the meaning of the rule of law, and the importance of there being a strong and independent legal profession.

I am advised that the recommendations made in the White Paper split the Law Society Council at the time. Despite strong differences of opinion, the Council voted to accept the White Paper’s recommendations. This was a huge mistake by the Law Society, since it put in train a series of events, which led to all the anomalies, contradictions and inconsistencies in the White Paper enshrined in The Legal Services Act 2007 (2007 Act).

The 2007 Act introduced the Legal Services Board (LSB), and mandated a separate, independent regulator for solicitors. The Law Society delegated its regulatory functions to the newly formed SRA. Again, another big mistake.

The SRA’s non-lawyer leadership and its operational separation from the Law Society marked the end of an era in terms of the legal profession regulating itself. The 2007 Act also started a process of decline, which has diminished the Law Society’s reputation and standing. Furthermore, the Law Society has also had to relinquish other duties and contend with ongoing crises within the profession and wider legal landscape:

• The Society ran the legal aid system for over 40 years before that function passed to the Legal Aid Board in 1988.
• Ongoing cuts to legal aid funding led to “legal aid deserts” and a shrinking number of criminal and civil legal aid firms. The Law Society repeatedly campaigned against such cuts but without success.
• Despite the formal separation, the Law Society and SRA have had an often-tense relationship such as the SRA’s handling of the Axiom Ince crisis which led to calls for the SRA’s leadership to resign.
• Most lawyers consider the 2007 Act to be a mess. The regulatory balance envisaged by Clementi is not there in practice. Following an investigation by the House of Commons Select committee on Justice it concluded that the regulatory arrangements needed early reform despite the Law Society President at the time contending under questioning from MPs that the regulation of solicitors worked ‘broadly well’.
• Critics have castigated the Law Society for its lack of moral courage regarding the Post Office Horizon Scandal, described as the worst miscarriage of justice in British legal history.
• A recent lack of respect by government for the Law Society has been apparent because successive governments have failed to consult it on key new laws such as the Building Safety Act 2022 resulting in badly drawn legislation.
• Despite the evidence of actual involvement by solicitors in money-laundering being ‘vanishingly small’, and despite a recent proclamation by a government minister to ‘build, baby, build’, successive governments have been complicit in measures seeking to purge conveyancing of its integrity, undermining the trust which ought to exist between the government and an independent legal profession.
• The administration of estates supposedly modernised by the last administration, but as one leading probate practitioner has said, digitalising probate processes without changing the underlying rules was another big mistake by government. There are still huge delays facing probate solicitors in extracting grants of administration.
• Despite a lack of approval by its members and a perceived threat to its independence, the Law Society joined the Digital Property Members Steering Group and the Home Buying and Selling Council, despite both groups having objectives inimical to the legal profession, and despite these groups wanting to marginalise the historic role of solicitors at the centre of conveyancing. These tensions led to a Special General Meeting last year which resulted in the fifth edition of the TA6 being ‘paused’.
• Property Solicitors are leaving the legal profession in record numbers.

Context

Too many Law Society Council meetings are taking place in secret. Too many topics suggested for debate are by its employees not practitioners. Debating critical issues affecting the legal profession should take place in the open, not behind closed doors with journalists excluded.

So, it is against the background of a Law Society in decline and a lack of transparency the Law Society has proposed, controversially, to increase ten-fold the threshold for Law Society members to requisition it for a Special General Meeting (SGM)

Increasing the threshold

The Property Lawyers Alliance has pointed out, that there are 5,838 conveyancing firms, which is 63% of the total (9,300), and 15,589 conveyancing solicitors, which is 7.2% of the total (216,000). This means in effect that 92.8% of solicitors have no real interest in the problems of conveyancers. This puts the proposed Law Society 1,000-member threshold to requisition a SGM into more context. Moreover, if the threshold were increased this would undermine democracy and accountability by making it harder for members to collectively voice concerns and hold the Law Society’s leadership to account. This change would hinder diversity and inclusivity, as smaller or marginalised groups would find it disproportionately difficult to gather enough support to trigger an SGM.

Critically increasing the threshold would also diminish the sense of a unified profession by reducing collective member power.

Thankless Conveyancing

In the last week, an experienced property law solicitor achieved national prominence in the legal press by writing of the severe pressures on front line conveyancers, the loss of respect and the attitude of estate agents and clients towards practitioners in general. So, he has withdrawn from the front line of conveyancing at a time when good property lawyers are leaving the legal profession in increasing numbers.

Does the Law Society not understand the poor optics of its proposals for hard pressed members which appear toxic, because they will undermine the ability of conveyancers, and members of other sections of the Law Society’s membership, to hold the Law Society to account?

Sadly, in its Bicentenary year, it appears the Law Society has lost its way and has become a mere hollowed out shell, occupying an unclear position between two stools, since it neither regulates solicitors nor represents them.

Stephen Larcombe is Chair of the The Property Lawyers Alliance