The Association of Council Secretaries and Solicitors has sharply criticised the Law Society for what it described as a “decidedly small-minded and protectionist” reaction to the Solicitors Regulation Authority’s red tape initiative.
The SRA has proposed amending rule 4.15 of the Practice Framework Rules to allow local government solicitors to charge charities “whose objects relate wholly or partly” to their employer council’s area.
Local government lawyers have been pressing for the rules to be changed for a number of years, in part because of the changing nature of local authority legal practice and more recently because of the huge numbers of maintained schools converting to academies (which enjoy charitable status).
In its response to the consultation Chancery Lane questioned the proposal’s inclusion, adding that it should be “significantly limited” and with “consideration given to the precise terms of its provisions”.
The Law Society justified its stance by claiming that the amendments would place local government lawyers at an advantage to firms in private practice, which it said had higher regulatory costs and burdens.
It pointed out that these services could be provided if the organisation in which the solicitors worked were to become an alternative business structure.
But ACSeS has criticised the Law Society’s stance to what the association called a “modest proposal” to extend the scope of authorised activity for in-house local government lawyers.
The association argued that the SRA’s proposal did not go far enough “since the local area limitations would stay in place at a time when local authorities are increasingly operating cross-boundary in the public interest as part of joint and shared service provision”.
ACSeS meanwhile welcomed the regulator’s recognition in its red tape consultation that local government was “undergoing significant change” and that the traditionally stable organisational arrangements for local authority legal services “no longer holds as local authorities change their structures and the ways in which they provide all their services to the public”.
It said: “Conversely, the reaction of the Law Society seems decidedly small-minded and protectionist and appears to pay scant regard to the public interest which is at the heart of the SRA’s work.”
The association criticised Chancery Lane for claiming that the changes would risk an ad hoc policy decision resulting in an inconsistent and incoherent regulatory framework.
“ACSeS believes that changes in policy in the public interest are exactly what the Red Tape Challenge is rightly seeking to achieve,” it said. “The association does not understand why such a decision would ‘result in an inconsistent and incoherent regulatory framework’. This framework would remain just as it now is apart from a minor change which would enable fair competition between public and private sector solicitors.”
ACSeS also argued that greater competition and potentially better value for money for charitable and voluntary enterprises at a time of public financial austerity were “more likely to promote the public interest more effectively than restrictive anti-competitive and protectionist practices”.
The association meanwhile said there was no justifiable foundation for the Law Society’s claim that local government solicitors would have an advantage over private practice firms.
“If local authority employed solicitors have lower regulatory costs this is solely because they are much less of a financial regulatory burden than their private practice colleagues,” it argued. “In other words there are very few professional compensation claims against local authority lawyers despite the breadth and depth of their legal practices.”
ACSeS pointed out that local government employed lawyers made a significant contribution through practising certificates to the Law Society.
It added: “The Society should remember that it has much broader representational responsibilities and that if it does not discharge these fairly those disadvantaged may begin to seek more effective representation elsewhere.”
Philip McCourt, President of ACSeS, said: “It is regrettable that parts of the Law Society seem to wish to bring down a protective safety curtain against public interest change. As the SRA rightly acknowledges, local government is undergoing profound change and local authorities and their legal practitioners are regularly needing to operate across increasingly wide territorial envelopes. So ACSeS believes the SRA proposal should accommodate modern public sector cross-boundary reality and remove outdated geographical restrictions.
“But ACSeS is pleased that the SRA is at least seeking to move in a direction which acknowledges organisational changes unlike the rather one-dimensional and protectionist approach recently issued by the Law Society. In the view of ACSeS, the Society should ensure that its published views are truly representative and not just those of one segment of its membership.”