SLN Interview: Murray Etherington on the fight ahead
Baktosch Gillan spoke to Law Society of Scotland president Murray Etherington on the work he intends to do during his year in office.
Murray Etherington wanted to be a lawyer from a young age. Growing up in 1980s and 1990s, it was the American television drama L.A. Law which encouraged him to study law. Now, as the newly-elected president of the Law Society of Scotland, he finds himself cast as the lead character in the organisation’s fight for its future, and for the future of the legal aid system.
Mr Etherington took over the role of Law Society president from Ken Dalling at the end of May. Like many would-be lawyers, Mr Etherington began studying law with the aim of becoming a criminal defence solicitor, but unlike many of those who have preceded him as president of the Law Society, he has never appeared in court. After completing the LLB and diploma in legal practice at Dundee University, he trained and qualified with Pagan Osborne, before moving to Turcan Connell. He then moved to Shield and Kyd, which was later taken over by Lindsays, before joining Thorntons.
A partner and head of private client at the Dundee-headquartered firm, Mr Etherington highlighted the ongoing fight to save legal aid and maintaining the Law Society’s dual role in regulating and representing the solicitor profession as two key priorities during his presidency. And he insists that, notwithstanding his career in chamber practice, he is fully aware of the issues faced by those working in legal aid.
“It’s not only criminal legal aid that is in crisis, he says, “there are real problems in civil legal aid as well. We have had a generation of underfunding. We asked for a 50 per cent increase because that would have fixed the problem, but the government weren’t going to give us that. We then went back to the government with a range of proposals, which included a 15 per cent increase across the board and some targeted changes to some of the fixed fee work.”
Last month the Scottish government announced a new package of funding, worth £11 million, to support criminal practitioners. Legal affairs minister Ash Regan said the offer was equivalent to an 10.3 per cent increase in solicitors’ fees, on top of the £10m increase already introduced, and would bring the total recurring increase to legal fees since 2019 to over 25.2 per cent. The package also included an extension of a legal traineeship scheme for a further two years at a cost of an additional £1m, and a framework for agreeing regular, evidence-based, fee reviews to directly address issues raised by the legal profession as priorities.
However, the Law Society president maintains that the offer falls far short of the investment needed to attract and retain solicitors in the legal aid system to improve diversity in the profession and ensure access to justice for all. He says: “The cost of the proposal we put to the Scottish government was about £27 million. At the moment we are being offered £11 million, which is nowhere near close to what we need.
“The government has invested in the criminal defence trainee fund, but what they don’t seem to understand is that if you can’t get those trainees and NQs to stay, they will join the fiscal service because of the better pay and conditions. All you will end up with is more fiscals and fewer criminal defence lawyers who will be doing a lot more work, which doesn’t give you the quality of service. I’m delighted the fiscals are being paid more – they are our members too – but surely if you accept that the fiscals haven’t been paid enough, you must also accept that legal aid fees, which are based on 1990s rates, are not fit for purpose.”
He adds: “I don’t work in this field, I don’t make my living from it; it’s up to people that do work in it to decide whether the offer is reasonable and whether they can continue to do that type of work. What I do know is that we have got more and more young lawyers leaving the criminal bar and some are leaving the profession entirely.”
The extent of the problem was brought to wider public attention by Lyndsey Barber, the criminal defence lawyer who, in a heartfelt YouTube video, explained why she had decided to leave the profession she loved. Lyndsey famously secured a traineeship after embarking on a road trip around Scotland, stopping by solicitor firms’ offices and charting her progress on Twitter; but less than a decade later the pressures of the job combined with chronic underfunding impacted her mental health to the point where she felt she had no choice but to walk away.
“It laid bare the issues the criminal defence bar are facing and the impact that a generation of underfunding of legal aid is having on practitioners,” Mr Etherington says. “We have said this to the government and to SLAB, but what we hear back is that the stats show that no-one in Scotland is going unrepresented because there are lots of criminal and civil legal aid practitioners. We however are seeing a different story – there might well be solicitors and firms who are registered to do legal aid work, but they are not doing it – there is a real mismatch between what the government says and what we are seeing on the ground.”
While Lyndsey’s story was picked up by the mainstream media, legal aid and criminal defence lawyers still have an image problem.
“In the past there has been this focus on criminal legal aid and that is quite a difficult thing for the public to get behind,” Mr Etherington observes. “People don’t generally think they will ever need a defence lawyer, so don’t see it as an issue that affects them. But, if you don’t make this financially viable, what’s going to happen is your High Street is not going to have a lawyer there to help you deal with a criminal complaint or a civil dispute, like child access for example. People may not see themselves as an accused person in a criminal case, but they might see themselves as going through an acrimonious divorce. If you don’t have the money to pay for a lawyer or you live in a legal aid desert, you are going to find it increasingly difficult to get the legal advice and services you need.”
The Law Society has now engaged an external PR agency to help communicate the seriousness of the crisis to the public. Mr Etherington explains: “We have had these conversations within the profession and with government, but we also need to change the narrative with the public. This is not about lawyers’ pay – it’s about access to justice. The message we need to get out there is that defence lawyers are there to ensure that the Crown case is properly tested, that the innocent are not wrongly convicted and that people accused of crimes who are convicted have had a fair trial – so you can trust the system.
“Historically, people have looked from abroad and considered the Scottish legal system as one you can trust. We have had that for centuries but it’s now at a point where it is about to fracture. We’ve got a massive backlog to deal with. We are doing it with one hand tied behind our backs and some of the criminal practitioners would suggest they’re doing it with both hands tied behind their backs.
“Our argument is that if we don’t prioritise legal aid to put it on a reasonable footing now and put a proper mechanism in place for setting future fees, then we are going to sleepwalk into a position where the Scottish criminal justice system is going to collapse around itself.”
The other major battle facing the profession is the proposal to create a new, independent regulator of the legal profession in Scotland – a prospect that presents an existential threat to the Law Society’s twin role as regulator and representative body for Scottish solicitors.
The case for reform was made in the report of the Roberton review in 2018. The Scottish government consultation which followed put forward three options for reform: option one would see the creation of a new independent regulator of all legal professionals, stripping the Law Society and Faculty of Advocates of their regulatory functions, and taking over the complaints handling role of the Scottish Legal Complaints Commission; option two involves the creation of the new independent market regulator, which would have oversight of the current regulators, similar to the model currently operating in England and Wales; while option three is essentially the status quo, with new statutory regulatory committees created.
Consumer groups are largely supportive of the more radical proposals, while the Law Society and Faculty of Advocates have opposed the proposed changes on the basis that the independence of the professions would be at risk from regulation by a body directly or indirectly appointed by government. The Law Society accepts that improvements can be made to the current system, but the president fears the government is using a sledgehammer to crack a nut.
“What we do at the moment in terms of regulation works pretty well, and the data supports that,” Mr Etherington says. “The general public have a very high regard for the legal profession, for Scottish solicitors and the work they do. There are certainly things within the current structure that can be improved, but we don’t think it requires a fundamental change.
“We believe the Lord President should continue to oversee the courts, and that this remains separate from government, to maintain the independence of the profession. There has been a movement in other professions towards separating regulation from representation, but the proposals put forward by the government seem to be a rather expensive way to fix something that is not broken.
“There is an issue about how people feed their complaints in and around the length of time complaints can take, not only for the public but for the lawyer as well. There is also a problem around sifting of complaints by the SLCC – we feel the bar is too low on entry, and too high in terms of what solicitors are expected to do. The SLCC say they don’t hold solicitors to a gold standard, but from what I have seen it’s pretty close to that, and there doesn’t seem to be an understanding of the day-to-day role of a solicitor and the pressures they are under.”
Those pressures are something the Law Society has also been working hard to address, by putting in place resources to support the mental health and wellbeing of its members. Lawscot Wellbeing is a dedicated online platform offering help and guidance for members and employers. Working in collaboration with NHS Scotland, LawCare, SAMH and other mental health charities, it is designed to provide information to help solicitors who may be experiencing difficulties to access support services. For Mr Etherington, developing the advice and support available to members at all stages of their legal careers is something of a personal mission.
He says: “I wanted to be a lawyer for as long as I can remember. It’s a huge honour for me – not having come from a family with a legal background – to be in this position as president of the Law Society. I am very proud of the work the society does and the profession in general, in terms of the work we do day-to-day and what we do for our communities. We’ve got many great people, we are a fundamental part of civic Scotland and for me this is about giving something back. It’s all very well talking about wellbeing but it’s about letting people know that they can get help and that the help is available when they need it.”
Baktosch Gillan is a trainee solicitor at Thorntons Law LLP