Problems with lawyers south of the border seem to be mirroring us in Scotland on what can and cannot be revealed to the public ...
The Telegraph reports :
Some rather odd conduct from the Law Society
By Joshua Rozenberg, Legal Editor
Last Updated: 1:49am GMT 14/02/2008
Why is the Law Society so eager to stop details of its own code being included in a practice guide for solicitors, asks Joshua Rozenberg.
Have you heard the one about the two QCs who are suing the Law Society?
Like all lawyers, Andrew Hopper and Gregory Treverton-Jones must have advised countless clients over the years to avoid litigation like the plague.
But, last month, they issued proceedings in the High Court against the solicitors' professional body. What's more, Mr Hopper is a solicitor himself - the first solicitor-advocate outside the City of London to have been so honoured.
Their claim is as interesting as it is unexpected. But what makes it particularly fascinating is the insight it gives us into behind-the-scenes tensions within the legal profession at a time of great change.
Both Mr Hopper and Mr Treverton-Jones are specialists in professional regulation. That means they defend solicitors against complaints about their conduct as lawyers - although Mr Treverton-Jones does other work as well.
The two men signed a contract with a publisher to write a lawyers' handbook, advising solicitors of the detailed rules they must now comply with.
Some of these rules are contained in the new Solicitors' Code of Conduct, which came into force last July.
This code is sold in book form by the Law Society at the price of £29.95, although you can download the latest version from the internet free of charge.
Because the two authors were devoting a chapter of their book to the code, they wanted to reproduce the full text as one of their 21 appendices. So they set about obtaining permission.
Two years ago, the Law Society delegated all its regulatory powers to a new body called the Solicitors Regulation Authority.
This body is frequently described as "independent" by Peter Williamson, the solicitor who chairs it. We shall see shortly how independent it really is.
Since the authority is responsible for the code, it was to this body that the two QCs turned when seeking a licence to reproduce it. Permission was readily forthcoming, first in an email and later in a formal letter.
Writing to the publisher LexisNexis Butterworths last September, a policy executive at the Solicitors Regulation Authority said: "Please accept this letter as authority to reproduce the rules in the Solicitors' Handbook, although as before this is strictly on the basis that the Law Society's copyright in them is acknowledged and that they are not reproduced as a stand-alone publication but merely as part of a larger work."
Then, everything started to go wrong. In November, the authors were told that only extracts of the code could be published. They did not have a licence to reproduce the entire document after all.
That turn-down came not from the Solicitors Regulation Authority but from the Law Society itself. The solicitors' professional body could overrule the regulatory authority because, as a matter of law, the authority is merely a division of the Law Society. So much for independence.
This week, the two QCs told me they were "utterly bemused". As they saw it, the bit of the Law Society that deals with prosecutions remained perfectly happy for solicitors to have a book that would help them defend themselves - while the bit that was meant to defend solicitors' interests was trying to block its publication.
"The Law Society -the representative body supposedly fighting for the interests of solicitors - would be expected to welcome the benefits to practitioners the handbook will provide," the authors said.
"But it is taking the precise opposite position for narrow commercial reasons: it is trying to hinder publication and emasculate the book."
As the QCs explained, it's all a question of money. Des Hudson, the Law Society's chief executive, tells me that the code of conduct is intellectual property which belongs to his members.
"Unwittingly," he says, "an individual employee gave away the rights in error."
Do the QCs or their publishers still have a valid licence to publish the code? Or has any such licence now been lawfully withdrawn by the Law Society? That is what the litigation is about and I am not going to express a view.
But to be fair to the individual in question, it would have been normal practice until recently for the Law Society to license publication of a document such as this without any charge. Now, Mr Hudson tells me, there has been a change of approach.
"We won't give away our rights without getting commercial value for them," he says.
Those who run the Law Society believe its members will welcome a more businesslike policy.
Why the change? In the past, the Law Society has been both trade union and regulator - British Medical Association and General Medical Council - with both roles funded by a single annual fee paid by all practising solicitors.
Now, we are told, the regulatory side has been hived off. The Solicitors Regulation Authority will be funded by the people it regulates. So does that mean the representative side will now have to find its own sources of income?
Not quite. There is no mention of the Solicitors Regulation Authority in the new Legal Services Act. The Law Society remains the day-to-day regulator and will retain the power to charge solicitors a practising fee when the Act takes effect.
But that fee can be used only for "permitted purposes". Those purposes include education and training, maintaining professional standards, supporting law reform and promoting human rights.
But they will almost certainly not include what would be regarded as "trade union" activities. These must be funded from commercial enterprises.
So the Law Society has to become more hard-headed. Should it hire out its reception and conference rooms to solicitors at a discount? Or would the profession as a whole be better off if it rented them to outsiders at a full market rate?
Should it give away the rights to reproduce the Code of Conduct? Or does it make it clear to Mr Hopper and Mr Treverton-Jones that if anyone is going to publish their handbook it will be the Law Society's own publishing arm?
Whatever the answer, you would have thought that a commercial dispute such as this could have been settled before proceedings were issued. Costs are now mounting up at an alarming rate. And the Law Society's decision to pull rank on its subsidiary may be storing up problems for the future.
That is because the new Legal Services Board will be required by statute to ensure that the Law Society's regulatory functions are independent of its representative functions. Countermanding a decision by the authority for commercial reasons - however good they may be - gives out the opposite message.
So how worried is Mr Williamson of the Solicitors Regulation Authority?
"Thank you for the opportunity to comment," he replies, "but on this occasion we have nothing to say"
No comments:
Post a Comment