Protection of ‘Lawyer’ and other Regulatory Reform Bits and Bobs

Protection of "Lawyer"

Plans to protect the use of the professional term ‘lawyer’ have been unveiled as part of proposals to reform the regulation of Scotland’s legal services sector.

That was the opening line in the Scottish Government’s press release of 22 December 2022 on the publication of their response to the findings of the legal services regulation reform in Scotland consultation analysis report [PDF].

To me protection of the term ‘lawyer’ is a very minor part of the proposals for regulatory reform emanating from the Roberton Review.

Perhaps it was made the headline to hide the fact that the Scottish Government ignored the primary recommendation of the Roberton Review which was the formation of one independent regulator of legal services in Scotland.

However, the move for protection and regulation of the term ‘lawyer’ is to be welcomed.

The Scottish Government’s Response to Protection of the term ‘Lawyer’

The Scottish Government’s response states:

It is a criminal offence for any person to pretend, wilfully and falsely, to be a ‘solicitor’. There are no such restrictions around the use of the term ‘lawyer’ or ‘advocate’. A common expectation of consumers is that anyone who refers to themselves as a ‘lawyer’ should be suitably qualified and regulated to do so. This is reflected in Law Society of Scotland polling, which indicates that 86% of respondents believe that there should be restrictions on who can call themselves, or advertise as a lawyer. The term ‘advocate’ has a wider connotation, and can be used to describe a person who talks on behalf of someone else.

While noting the support for like for like protection for both titles, the consultation analysis shows that there are notable and legitimate reasons to take the title of lawyer while not being included on the roll or subject to regulation. Like for like protection may have unintended consequences, in respect of legal academics, in-house lawyers and those who practice religious law, for example.

In taking a targeted and risk-based approach, we view that it should become an offence to falsely pretend to be a ‘lawyer’ or ‘a member of the Faculty of Advocates’ in order to provide legal services to the public for a profit.

Protection of ‘Lawyer’ to prevent struck off Solicitors miss-leading the Public

There was a certain amount of outrage when Cameron Fyfe was struck off from the roll of solicitors but set up a claims company proclaiming it was “headed up by Cameron Fyfe, one of Scotland’s most prominent lawyers”.

It was around that time that the Law Society of Scotland made calls to protect and regulate the term ‘lawyer’. And quite rightly so.

When questioned about his use of the term ‘lawyer’ Cameron Fyfe told the Sunday Mail in 2018:

The Law Society have not said to me that there is a problem with me using the term lawyer.

They said I could not use the word solicitor which I never do.

I’m a qualified lawyer, I have a law degree and I am a lawyer. The term lawyer is too general for it to be protected by law.

Mr Fyfe is about to find out that the term ‘lawyer’ is not “too general for it to be protected by law”.

Major Regulatory Reform Issues

The more major parts of the Scottish Government’s response I have already looked at in some detail in four previous blog posts:-

Other Regulatory Reform Bits and Bobs

There are, however, some other Regulatory Reform bits and bobs that are worthy of being highlighted.

The Lord President and the Court of Session

The Scottish Government’s response states:

The Lord President and the Court of Session should maintain responsibility for prescribing the criteria and procedure for admission to the legal professions, the approval of changes to practice rules in relation to the legal professions, and retain an overarching role in the regulatory framework, protecting the independence of the legal profession.

This is in keeping with the status quo in so far as keeping the regulatory model with the existing regulators as is.

Definition of Legal Services and Reserved Activity

The Scottish Government’s response states:

The Roberton report recommended that a definition of legal services should be set out in primary legislation. The consultation analysis shows that most respondents (88%) agreed that there should be a definition of legal services. We will consider how a definition of legal services could be applied to Scotland in terms of reform.

It will be interesting to see this definition when drafted. Care will need to be taken over the drafting so as not to exclude anything that should be included and vice versa.

Entity Regulation

The Scottish Government’s response states:

Consumers often presume and expect that their legal services are regulated at an entity level (as a legal business as a whole), which is not necessarily the case. From the perspective of the client, their contract is with the legal business and the client places expectations on that entity. However, the current legal framework for the regulation of the legal profession in Scotland places the emphasis on regulating the individual solicitor. The consultation analysis indicates that the majority of respondents (80%) agreed that entity regulation should be introduced.

A revised regulatory model should provide for entity regulation of legal businesses which will allow for regulation that centred on the public interest and protection of the consumer, and will bring forward many recognised benefits.

Entity regulation should not replace or dilute the regulation of individual legal professionals, to ensure the strongest of consumer protections a hybrid approach will provide increased efficient and effective regulation – both from the consumer and the solicitor perspective. This would provide proportionate risk based and appropriately targeted regulation.

I think in practical terms we already have entity regulation. When the Law Society of Scotland conduct a routine regulatory inspection it is very much an inspection of the law firm as a whole first and foremost.

However as Esther Roberton pointed out in her Review:

As referred to in the landscape chapter the current system of regulation of legal services in Scotland, as in other professions, emphasises regulation of the individual professional, however some entity regulation as well as some activity regulation is sometimes present, it is a confused and complex landscape, hard for those inside and outside the sector to understand.

Thus, perhaps some clarification is needed even if what that might be is not immediately obvious to me.

The Cost of the Regulatory Framework

The Scottish Government’s response states:

The Roberton report set out that the global cost of the new regulatory system should not be more than the cost of the current system. The system should be financed by a levy on practitioners as is the current arrangement, and also on entities under the proposed model.

The Scottish Government is mindful of the cost of the regulatory framework, and view that there is scope to provide for a more efficient framework which will lead to improvements in the way in which legal services are regulated and how the legal complaints system operates.

Let us hope that costs can be maintained or even reduced and not increased.

Conclusion and What’s Next?

Those are all the bits and bobs involved and this concludes my series of five blog posts on the Scottish Government’s response to the findings of the legal services regulation reform in Scotland consultation analysis report.

Unless anything startling happens in the meantime we now await publication by the Scottish Government of the first draft of the Legal Services Regulation Reform Bill. I will of course blog on that when we see it.

Other Posts in this Series

So far there have been thirteen posts in this series on Legal Services Regulation Reform in Scotland:-

Reactions on Social Media to Protection of ‘Lawyer’ and other Regulatory Reform Bits and Bobs

On LinkedIn the following comments have been made:-

Graeme Johnston (Software to map work – before that a lawyer):

I agree that the ‘lawyer’ issue is minor. Also –

1. If it’s just ‘lawyer’ that’s to be banned, there are other descriptions that people can come up with (legal adviser, legal counsel, legal specialist…) and an attempt to slide into considerations of substance (what are they holding themselves out to do, rather than just what title) risks indirectly eroding the edges of the ‘reserved legal activity’ definitions. Tricky.

2. Some current usages (e.g. Rocket Lawyer, Lexis PSL – the ‘L’ standing for lawyer) don’t seem misleading, but may be caught, dep on the def of ‘legal services.’

3. There is a definition of LS already in s3(1) of the 2010 Act, which (as in the English 2007 Act) is *much* wider than the concept of reserved activities – only theoretical in Scotland so far, because it merely defines the scope of *possible* regulation, but if used here would make point 2 into a real issue (though solution for such services = don’t market in Scotland)

4. I wonder what the jurisdictional / contacts-with-Scotland / Scots law test will be, bearing in mind the internet / foreign law aspects. Needs some careful thought.

Just stuff for the SG to think about so as not to create a pointless mess 😀

Me:

Thanks Graeme

Thoughts on your comments:-

1. If the real problem is struck-off solicitors using the term then maybe all that is required is a prohibition on a struck-off solicitor calling themselves a lawyer?

2. Interesting point. Rocket Lawyer are not yet in Scotland. Maybe they will never be!

3. Esther Roberton does not appear to reference that definition in her Review. She does specifically refer to “the main statutory definition for those legal services reserved to solicitors at Section 32 of the Solicitors (Scotland) Act 1980”. Maybe no one was aware that a general “legal services” definition already existed in primary legislation. This is possibly another example of the proposed Legal Services Regulation Reform Bill reinventing the wheel (e.g. independent LSS Regulatory Committee compared to the current set-up as you flagged up in my first post of five in this series)!

4. Another interesting observation. The statutory drafters are going to have their work cut out!

The possibility of a pointless mess, unfortunately, looks more likely by the minute!

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David Flint (Commercial Law Consultant at Inksters; Visiting Professor at Creighton University School of Law.):

I can see why the Law Society of Scotland (LSS) wants to control the use of the word “lawyer” – it would enable them to expand their empire and increase their power base. I can understand the issue of struck off solicitors misleading the public but it does seem that prohibiting the use of the lawyer description is a sledgehammer to crack a nut which could be solved less intrusively

I know of many great lawyers who have chosen not to be solicitors (nor do they pretend to be so); in many cases they have made this choice as a direct consequence of the actions of LSS; none is engaged in any of the reserved areas under the current legislation.

Many are working in-house, in industry, or in academia – are they to be denied the ability to describe their qualifications? What about foreign “lawyers”?

Maybe we will need to refer to ourselves as legal adviser, attorney, jurist, jurisprudent, procurator, or any of the other synonyms. … or maybe The Scottish Government should look at the problem before coming up with a solution which will do nothing to protect the public but add to the already excessive financial burden on solicitors imposed by the overreach of LSS. After all, all these “lawyers” are unlikely to volunteer to pay fees to LSS.

Graeme Johnston (Software to map work – before that a lawyer):

I tend to agree with the thrust of what you say, but on the in-house / academic aspect, the plan (para 54 of the paper) is said to be only to criminalise use of the forbidden terminology to provide legal services “to the public for a profit.” Presumably those words are intended to exclude in-housers, academics, people who provide help pro bono etc.

Me:

The public do not really know the difference between a solicitor and a lawyer and often interchange the terms and use “lawyer” when referring to their solicitor. Law firms sometimes prefer to call themselves lawyers rather than solicitors. So the potential for confusion is high.

But I get David’s sledge hammer to crack a nut argument.

Perhaps (as I said on the other thread on here) if the real problem is struck-off solicitors using the term then maybe all that is required is a prohibition on a struck-off solicitor calling themselves a lawyer?

But maybe, as you say Graeme, if someone with a legal background can still be called a lawyer if they are not providing legal services “to the public for a profit” then there is no real problem?

Anyway, after 5 days of writing about legal services regulation reform I am going to pour myself a drink and log-off for the rest of 2022. Happy New Year to you both when it comes and I will see you back on here in 2023!

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Brian Rogers FCMI (Regulatory Director, The Access Group (Legal Division)- helping law firms and lawyers meet their regulatory and compliance obligations. Lawtech founder. Veteran.):

One thing I have remained puzzled by is an answer I got from the E&W Law Society some years ago when I questioned how a commercial organisation that was not regulated by the Solicitors Regulation Authority could use the term ‘solicitors’ in its name; I was told that anyone could call themselves a solicitor as long as they didn’t hold themselves out as one!

Why would anyone want to call themselves a solicitor if they didn’t want people to think they were one!

Me:

Very odd. Surely a clear case of holding out to be one. Would be interesting to see if there are any examples of people/organisations being pursued for illegally using the term.

Brian Rogers:

I asked the question when I was Chair of Regulatory Affairs at Manchester Law Society and QualitySolicitors were moving into WH Smiths; although the member firms are law firms (solicitors), QS as an organisation was/is not.

Graeme Johnston (Software to map work – before that a lawyer):

Interesting example. Solicitor-ness carefully disclaimed in the small print, no doubt with the exact terms of section 21 of the SA 1974 in mind –

https://www.legislation.gov.uk/ukpga/1974/47/section/21

https://www.qualitysolicitors.com/

“We are a marketing consortium which receives payments from our network of solicitors for member benefits and marketing which generates enquiries and referrals to the network of solicitors firms.”

Good illustration of the difficulty of regulating the naming of things.

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Neil Henderson (Team Leader – Business Development at Shetland Islands Council):

Interesting. My daughter is currently studying Law at Aberdeen University and I shall direct her to this. Thanks.

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