Equality of Arms

ARTICLE

Equality of Arms

Fairness for members? We’ll get back to you

The Law Society of England & Wales has been staring in the face an issue of fairness for its members. WHLS’s Immediate Past President, Paul Sharma, argues that it looks as if they are sitting on their hands.

The Equality of Arms issue is an opportunity that the Law Society’s managers could grab with both hands and provide benefits for their members. I raised the issue at a meeting of the Westminster & Holborn Law Society earlier this year. We heard arguments and decided that the national Law Society should use their funds to protect their members. Now, other Law Society members are taking the Equality of Arms campaign seriously. You can see this over the past few weeks when The Law Society Gazette carried articles about this subject. Over 50 members have commented – more than most issues.

Members are concerned about the support they receive if they have to face the Solicitors Disciplinary Tribunal (“SDT”). They know that a complaint that has to be defended at the Tribunal can kill careers. They know that any member can face the might of a Tribunal that is armed with experienced and skilled lawyers and facilitated by the Solicitors Regulation Authority’s open cheque book. What arms does an ordinary memberhave? If members need to be regulated, and they do, they also need fairness.

One of 51 comments on the Gazette stories about Equality of Arms stated: “I agree wholeheartedly with the sentiments expressed on the treatment of young Solicitors. Unfortunately, the regulatory system for Solicitors is not fit for purpose in its entirety.” The campaign has pushed open a window of change.

Filling the gap

Solicitors, Leigh Day, have been addressing the issue. They have had a number of conferences that focused on how the SDT impacted on Black and Asian members. They have drawn up policy that looks to using insurance to fill the gap in the equality of arms. They are committed to continuing this work. In fact, they are filling a gap left by the Law Society.

So, what about the managers of the Law Society? They are happy to present their aims on their website. They state: “We’re the independent professional body for solicitors in England and Wales. We’re run by and for our members. We are the voice of solicitors…protect everyone’s right to have access to justice.” Sounds good. What have they said about Equality of Arms?

Law Society managers

In The Law Society Gazette on 11 October 2021, the article, ‘Society ponders SDT support for lawyers’, a Society spokesperson acknowledged 1 inequality of arms and put forward a higher burden of proof in Tribunals as a solution. The spokesperson also said: “We are looking at ways to offer more support to members appearing in the SDT, within the limits of what we are able to do under the regulatory regime.” This is good but…it is not my experience of the Society. Between April and May this year, I contacted the Society to find out what their position was and what action the Society was taking. When nothing came of it, I wrote again in August. Their response was: ‘Is the campaign getting traction with many solicitors?’

The SDT has an administrative team of 16 people. It spends around £3m a year and spends around £500,000 on cases. Before equality of arms became an issue, the SDT developed a set of key performance measures. These were: diversity, an administrative team that listens to members, providing information to respondents and the time advocates felt they had to present their case. A key performance measure absent was whether respondents had paid-for legal representation.

Law Society members will need to thrash out the best, costeffective way of supporting its members. It assembled a working group to develop policy on climate change, even though the government is happy to give free advice to businesses. The Society should be able to do similar for an issue that is central for its members.

One member, Claire Matthews, felt the consequences of a Society that was not on her side. A simple mistake, leaving documents on a train, eventually led to her going up against the Tribunal. She was frightened. She was scared. And being unable to afford legal representation, she was on her own. She was struck off and tumbled into a downward spiral. She has a ray of hope thanks to Leigh Day who has taken up her case on a pro bono basis.

We all need a ray of hope. This issue is crying out for advocates in local law societies, among the practice and personal characteristic groups – particularly the Junior Lawyers Division - and on the Law Society Council. I will certainly raise this issue with the Council and insist on a response similar to their climate change efforts. The Society recognises equality of arms when it comes to legal aid. It should do same for its own members. ■

Paul Sharma

Paul Sharma

Immediate Past President, Westminster & Holborn Law Society and Law Society Council Member for Holborn

1. https://www.lawgazette.co.uk/news/society-ponders-sdtsupport-for-lawyers/5110111.article