Scottish Young Lawyers Association Debate

Scotsman Newspaper Building, Edinburgh

Thursday 29 October 2009, 6.45pm

Mike Dailly’s opening speech for the Opposition

If every society is judged by how it treats the least fortunate amongst them,
then every profession must be judged by how it treats its newest members.
We are all humble and eager to please when we start out in our legal careers,
and it is those virtues which can make trainee solicitors vulnerable.

Whenever someone, or something, is vulnerable the free market response is

to exploit that vulnerability, and make a profit. Of course the free market
doesn’t have a code of ethics – which is why we have statutory regulators.

We, on the other hand, are permitted to regulate ourselves as lawyers

because we adhere to a professional code of values and ethics, as a
responsible and trusted profession. Lose that and what do we have?

If you support this Motion then I believe we do not deserve to call ourselves ‘a
profession’ – we might as well let Tesco buy and sell us as a commodity and
pay the Minimum Wage to everyone. But now is not the time to stray into the
Legal Services Bill.

If we teach trainee solicitors that it’s ok for lawyers to exploit one another
aren’t we paying lip service to the belief we’re something more than a simple
supplier of services? More than a tin of legal beans?

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The fact we treat our prisoners with dignity is a sign of a just and fair society.
Of course, there have been contradictions such as the medieval practice of
slopping-out. The recent slopping-out cases have been distasteful to Scottish
politicians, but they were absolutely necessary to ensure we didn’t just pay lip
service to our guiding principles.

Another medieval practice is for partners to treat trainee solicitors like serfs or
skivvies. These practices have no place in the 21st Century. Just because
you were exploited as a trainee doesn’t mean you should continue the cycle.

I would like to set out an argument that as a matter of Scots law this motion
must fall. Having ‘your trainee’ spend most of their days picking up parcels,
running personal errands, filing, or occupying the same space as the
photocopier is contrary to the Post-Diploma Training Contract.

The contract provides that ‘The Employer undertakes to provide the Trainee a
reasonable training in the work of a solicitor within the scope of the employer’s
practice …’.

‘Reasonable training in the work of a solicitor’ does not mean leaving a trainee
to run a branch office unsupervised, shouting or bawling at them because of
your inadequacies, requiring them to spend all day and night photocopying, or
dumping unprepared cases or court appearances on them at the last minute.

The 2001 Admission as a Solicitor (Scotland) Regulations make provision for

intervention by the Council of the Law Society where a trainee is not ‘receiving
the benefits’ he or she ‘should receive from the training contract’.

And this is perhaps where it all breaks down. Last year, The Firm magazine
reported that there were 632 traineeships in Scotland, and the Law Society of
Scotland was happy to report that not one single trainee had ever ‘formally
complained’ about the way they were treated.

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No problem there then. This entire debate is apparently academic. Is it any
wonder trainees can be exploited when technically no exploitation has ever
taken place, and in practice firms can get away with it?

The elephant in the Law Society’s drawing room was the fact that many
trainees had contacted them with serious concerns, but were told that in order
for these to be acted upon they would need to make a formal complaint –
which would then be disclosed to the firm.

The reality was exploited trainees were too frightened to make a formal
complaint. For obvious reasons, they feared they might never qualify or have
a stain on their future career. Was that a reasonable belief to hold? Well, I
think so.

Consider this. The Law Society of Scotland says ‘we don’t take sides’ in these
matters. So you have to ask yourself why not? Only lawyers dealing with
other lawyers could score such an own goal.

There is no equality of arms between a trainee solicitor and his or her firm –
so there is every possibility that a trainee solicitor would submit a complaint
and lose hands down. We all have a professional obligation to stick up for
our trainee solicitors and the current system is plain wrong.

Last year, a number of trainee solicitors told me about the way they had been
mistreated. I spoke to The Firm’s Editor, Steven Raeburn, and he and his
team kicked off a high profile campaign to tackle trainee abuse and injustice.

I say abuse and injustice. Exploitation comes in many guises and these are
only two of them. Quite frankly, no-one should consider themselves an
officer of the court if they can go back to their firm and dole out injustice to
junior members of staff. Some of the trainee stories that The Firm highlighted
last year included the following examples:

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Inappropriate sexual comments and verbal abuse on a daily basis;

Having to act as a waitress for the boss; and

Not being providing with a desk or chair to sit at.

One of the trainees said her morning routine consisted of waking up and
crying before heading to work. She said, ‘The Law Society of Scotland
need to wake up and realise what kind of power partners have over their
trainees and that absolute power can lead to abuse’.

Ladies and gentlemen, not only should you reject this Motion but we
should call upon the Law Society of Scotland to amend their 2001
Admission as a Solicitor Regulations to give detailed examples of what is,
and what is not, acceptable practice and treatment for trainee solicitors.

Moreover, we should call upon the Law Society to review its current
complaints procedure, and give consideration as to how confidential
complaints can be investigated, and how trainees subject to exploitative
behaviour can be better supported.

The word ‘trainee’ has become a term of abuse. In contrast, everyone

knows that an ‘apprentice’ is owed a duty to be skillfully trained and
treated with respect. We should scrap the term ‘trainee solicitor’ and go
back to ‘apprentice solicitor’ and ‘apprenticeships’.

Mike Dailly
Principal Solicitor
Govan Law Centre

Edinburgh
29 October 2009