A call to equality of arms

On 8 May the Law Society’s Council approved a special motion tasking the organisation with examining ways to support solicitors hauled before the SDT. ‘Legal aid’ for solicitors accused of misconduct, if it can be so described. A six-strong committee will report back on options that might ensure ‘equality of arms’.

The committee’s deliberations will not be straightforward.

First, if the object is to indemnify solicitors who have allegedly fallen foul of their regulator for the costs of defending themselves, cases that end up before the SDT are the tip of the iceberg.

The number of cases heard by the tribunal has fallen sharply in recent years – from 134 in 2017/18 to 76 in 2021/22. But what about solicitors hit in the pocket by the SRA, whose fining powers increased in 2022 from £2,000 to £25,000? This will surely come into the equation when the committee meets, especially now the regulator wants the power to impose unlimited fines. As the Gazette has reported, parliamentarians are looking favourably on this proposal.

A big question also arises over the remit of the Law Society. Chancery Lane is not constituted as a trade union, as some still seem to believe, and the costs of indemnification could be huge.  Even if a supplement to the PC fee were practicable, it would be an extremely hard sell.

Some have mooted the creation of a defence union, akin to a medical defence organisation. This would seem to be an appealing notion. Scotland has the Legal Defence Union – hailed as ‘the first of its kind in the British Isles’ – and it is in no way affiliated to or endorsed by the Law Society of Scotland.

Again, difficult. Had such a union been feasible in our much larger jurisdiction, it would surely have happened by now. Back in 2010, when the SRA removed insurers’ obligation to cover solicitors’ costs in disciplinary cases, the then Law Society chief executive Des Hudson said Chancery Lane had been mulling defence union options ‘for some time’. Nothing happened, most likely because of the universality problem. I foresee a groundswell of solicitors who would vehemently object to compensating those who flout the rules or are unable to manage their businesses properly.