Boot them out?

lawSociety

Should solicitors place a vote of no confidence against The Law Society chief executive Des Hudson & President Nicholas Fluck? The vote takes place on Tuesday 17th December.

Not since the days of the Kamlesh Bahl affair has The Law Society (TLS) had to weather such a storm. If you can’t remember the Bahl case, you are probably relatively fresh to the legal profession. It was a complicated case surrounding allegations of bullying and racial & sexual discrimination. The case rumbled on for around five years, a matter which Bahl ultimately lost in the Court of Appeal.

Like the Bahl case, one wonders what the ultimate outcome of the motion will be. We are at a point where the next few weeks may decide the fate of thousands of law firms who provide employment for tens of thousands of people.

James Parry
James Parry, a criminal solicitor from Liverpool, who brought the no-confidence motion, reflects the views of a significant number of practitioners in the criminal legal aid wing of the profession.

Listening to Parry’s video interview with the Law Society Gazette Parry appears to have brought the no confidence motion for three reasons:

  1. To inform the Law Society (TLS) that the majority of criminal practitioners say that proposed 17.5% pay cut will make their businesses unsustainable
  2. To inform TLS that the profession feel that the proposed market consolidation model is unnecessary
  3. To object to the Lord Chancellor’s alleged view that he had agreed every part of the proposals contained in the second consultation paper with the chief executive of TLS

It is not disputed that TLS are in favour of market consolidation. It is not argued that a 17.5% reduction will be disastrous for practitioners and clients alike but whether TLS agreed to a 17.5% reduction is the main bone of contention.

Did TLS agree to a 17.5% reduction?
On several occasions, Des Hudson has repeated the view on behalf of TLS that they did not and could not agree to such a reduction. Many solicitors including Parry say that they have reason to doubt this given the Lord Chancellor’s pleasure on reaching a ‘deal’ with TLS.

It’s hard to see what motive TLS would have in agreeing such a cut in remuneration. It’s difficult to find any positives in TLS taking this course of action. I think it’s rather unlikely that TLS shook hands on a 17.5% cut. With the benefit of hindsight, perhaps TLS could have been more aggressive in dismissing the Lord Chancellor’s claim of a deal?

There has been a dearth of alternative proposals to the supposed ‘deal’ reached between both sides. Parry’s view is clear. He wishes to retain the status quo. He feels that major savings can be made elsewhere and further legal aid savings can be made over time by simply freezing rates and allowing the effects of inflation to make up savings over time.

Parry and others are seeking a return for TLS to the negotiating table in an effort to reverse the proposed cuts and market consolidation. However, I doubt that Chris Grayling is the type of politician who can or will go back to the Treasury and say that they promised savings to the legal aid budget can no longer be achieved.

It is highly unlikely, in my view, that further negotiation will stop the treasury-led savings being achieved.

For the reforms to be stopped in their tracks, the Government will need to feel that they have little choice other than to row back.

For this to happen, practitioners would need to withdraw their services. However, if solicitors firms go on strike, they will be in breach of their contract with the Legal Aid Agency. They may also be in breach of their professional obligations. In addition, if a practitioner withdraws their services, there is no guarantee that another practitioner from another area would not step in.

However, member of the Bar do not (currently) hold a criminal contract with the Legal aid Agency. They act as self-employed advocates usually instructed by a solicitor’s firm. There appears to be very little to prevent them from withdrawing their labour.

Whilst the Lord Chancellor may have originally believed that solicitors rather than advocates were the primary target of his reforms, market consolidation will hugely affect the Bar as it relies on small and medium sized firms for its instructions.

Barristers are therefore supporting a day of action on 6th January when barristers will attend protest meetings rather than provide advocacy services in the courts. It appears likely that the Bar will hold firm and that almost all if not 100% of barristers will not work during the morning of 6th January.

The chair of the Criminal Bar Association, Nigel Lithman QC, states that the day of action is designed to protest against (HERE):

  • Demolition of the criminal Bar through unacceptable fee cuts
  • Dismantling of access to justice
  • Destruction of the criminal justice system

Presumably, the day of the action is unlikely to result in an immediate ‘u’ turn by the Government but there will probably be further and more frequent ‘protest days’ happening in the coming weeks. Solicitors must support the Bar and not do anything which will disrupt the protest day(s).

But what about the no-confidence vote? Given that further attempted negotiation will probably not work, is there any point in placing a vote of no-confidence? Perhaps not but arguably it will set a marker.

It will not be a surprise if James Parry wins his vote of no-confidence on 17th December. Members present at the vote may also elect for a postal vote which will happen if it is requested by 20 members of the Society present at the meeting (or 25% of those attending if that number is lower). A postal vote may better reflect the feelings of the profession as a whole but it will also drag the matter on longer. Once the votes have been counted, the motion will go to the Law Society Council for approval.

Given that TLS council overwhelmingly supported the decision to engage with Chris Grayling, it would be a huge shock if it reversed its support and endorsed James Parry’s motion. Ultimately, this means that the motion is very unlikely to be successful unless the chief executive and/or president offers to resign.

What would be helpful now is a statement from the Lord Chancellor clarifying whether the ‘deal’ included an agreement made with the clear consent of TLS for a proposed reduction of 17.5%. If no ‘deal’ was reached, they should not resign. I doubt he will do so as it suits his interests to divide the profession. Anyway, to conclude, supporting the Bar is the best chance of success that solicitors have in defeating these awful proposals.

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