Governance of Legal Professions before the Legal Services Act 2007

A. Barristers

The Bar had a more complex governance structure than solicitors because of the control exercised by the ancient seats of governance, the Inns of Court. Following its formation in 1895, the General Council of the Bar assumed responsibility for laying down rules of etiquette, such as that requiring that a barrister be briefed by a solicitor.^[707] It also developed a disciplinary role over the whole Bar.

The Inns comprised students, barristers and Masters of the Bench, or Benchers. The governing body of each Inn was typically comprised of judges and benchers. Much of what the Bar Council enacted by way of policy was negotiated with the Inns. The influence and residual power of the Inns before 2007 was strong, yet uncertain.

B. Solicitors

The basis of the constitutional governance of the Law Society was provided by the Royal Charter of 1845, although this provides that the title is ‘The Society of Attorneys, Solicitors, Proctors, and others not being Barristers, practising in the Courts of Law and Equity of the United Kingdom’.^[708] The charter provides that

there shall be a Council of the Society, to be elected from the Members of the said Society and a President and a Vice-President of the Society to be elected from the Council^[709]

The charter went on to provide that the original membership of the Council should consist of not more than 30, nor less than 20 members, but this was amended by supplemental charters to an upper limit of 50^[710] and then 120.^[711] A further supplemental charter in 1903 changed the name to the Law Society.

In the debates regarding the legalisation of trade unions in the late-nineteenth century the Law Society increasingly saw its representative role as both legitimate and necessary. The Law Society’s claim to represent all solicitors was evidenced by relatively few challenges to its authority from members.^[712] Most were generated by conveyancing. During the periods 1840-50 and 1880-1914 tensions between the London-dominated Law Society and provincial solicitors became severe, particularly when the Law Society was thought not to be defending the conveyancing monopoly or other work sufficiently strongly. The ultimate humiliation occurred when country solicitors’ opposition to a land transfer bill forced the government to back down even though the Law Society had already agreed its terms. Thereafter the Law Society was forced to become more vocal in protecting its members’ interests.^[713]

Various alliances of provincial law societies threatened the control of the Law Society but failed to gain a significant foothold.^[714] In the 1960s a National House Owners Society was established to encourage people to do their own conveyancing. Sections of the profession criticised the Law Society for failing to defend the convey­ancing monopoly effectively. This led to the establishment of a short-lived competitor, the British Legal Association.^[715] As the Law Society increasingly promoted the idea that it advanced the public interest, it became diffident in defending the profession’s interests against the government.

The strains of representing a diverse membership became severe in the 1990s. In the middle of the period Sugarman wrote that:

[T]he strength and weakness of the Law Society (and the profession) has stemmed from its propensity to express several contradictory tendencies side by side: its claim to act in the general interests of society; its much asserted independence and relative autonomy from external influence, notably that of the state; its ‘gentlemanly’ character, in part sustained by the image of the barrister, its ‘national’ character; its claims to act as an effective pressure group and trade union on behalf of its membership; and its inherent dependence upon and imbrication within the state.^[716]

In the 1990s the image of the Law Society as a consensual and collegial organisation began to crack.

In 1995 the election of the President of the Society was contested for the first time since 1954. In an acrimonious election campaign, Martin Mears was elected on a pop­ulist ticket to represent the interests of the ‘ordinary’ practitioner. His themes were the damage done to standards of conveyancing by the ending of the solicitors’ monopoly, the oversupply of lawyers and the bureaucracy of the Law Society. Henry Hodge, the official Council candidate, was defeated by over 3000 votes.^[717] Mears’ period in office highlighted the tension between the elite and the rest of the profession. Almost immediately he proposed a reduction in powers of the Secretary General at a Council Meeting.^[718] In October 1995 Mears excited adverse press reaction with attacks on the Equal Opportunities Commission and the Commission for Racial Equality.^[719]

The challenge to the liberal establishment both within and outside the Law Society excited much disagreement about its role. After 40 years of uncontested elections for senior positions in the Law Society, there were four contested and acrimonious elections in the 1990s. Even this was not enough to mobilise solicitors as an active membership. Law Society elections traditionally had a poor turnout, but even in the 1995 presidential elections, only 23,000, of over 65,000 solicitors eligible, voted.^[720] Solicitors, as a body, were at least partly to blame for the Law Society’s position.

Many solicitors were torn between different conceptions of the Law Society’s role. One view was that it should be a detached and authoritative professional body. Others thought it should be a campaigning organisation on behalf of members. The presiden­tial polls suggested that many members favoured the Society being more of a ‘trade union’, a negotiator and lobbyist on behalf of solicitors. In 1989, a survey found that 32 per cent of solicitors thought that the Law Society was good at promoting the profession and 53 per cent that it was good at representing the profession.

The issue that the polls revealed was the Law Society’s irreconcilable roles. Some thought that the Law Society had become too strident. Solicitors were felt to have fallen in public esteem and many criticised the Law Society for this. The Law Society’s reaction to the negative polls was to share the blame. A spokesperson for the Law Society said ‘I fully accept that the Law Society must bat more strongly. Individual solicitors must do so too. The Law Society cannot single-handedly guard and promote the reputation of the profession’.^[722] The problem, in part, was that the Law Society no longer had a cosy relationship of trust with government. It had to be more open in seeking its objectives.

The pressure on the Law Society to become more of a ‘trade union’ on behalf of solicitors was successful, but had negative consequences. One of its campaigns was against continuing cuts to legal aid. This was supported by expensive newspaper advertising implicitly critical of government policy. This was arguably within the scope of the Law Society’s public role in defending the rule of law, although it could also be seen as promoting members’ interests. The Lord Chancellor publicly rebuked the Law Society for ‘scaremongering’ on the legal aid issue.^[723]

The government moved quickly to control professions’ use of funding for representative purposes. The Administration of Justice Act 1999 prevented use of monies raised from practising certificates for general purposes.²³ The measure appeared, at least to some parliamentarians, to reflect the government’s irritation at the Law Society’s campaign against legal aid cuts.²⁴ The Act was a precursor to the recommendations of the Clementi Review of legal services, launched a few years later, that the representative and regulatory roles of professions be exercised independently of each other. The resulting legislation, the LSA 2007, specified specific purposes for which monies raised by practising fees could be applied.²⁵

The Law Society had reached a curious position. Its powers of self-regulation had been seriously curtailed. In relation to its remaining function, representation, the situ­ation was ambiguous. On one hand, its ability to adequately represent diverse sectors of the solicitors’ profession, particularly the international law firms, was doubted. On the other hand, it was the largest and most entrepreneurial legal services regulator. As such, it was potentially the dominant partner, if not the likely leader, in any prospec­tive fusion of the solicitors’ profession with the Bar and ILEX.²⁶

IV.