What Is Esto Law? And Why is the Glasgow Bar Common Room Seething?

John McGovern is one of the hardest working and best lawyers at the Glasgow criminal Bar.

He is also a prolific Twitterer. On Saturday, he tweeted the following:-

 

Ain’t seen an angrier Bar Common Room than Glasgow Sheriff Court yesterday. What you got to say about this one @lawscot? Your Esto position?

 

What had upset him?

On 10^th October 2011 a company called Place D’Or 712 Ltd was formed, with its Registered Office care of Peterkins Solicitors in Aberdeen.

On 7^th November the company changed its name to Esto Law Ltd. On 24^th November the Registered Office was changed to 1 George Square, Glasgow.

On the same day, 24^th November, seven directors were appointed. These were Ken Dalling, Vincent McGovern, John Scott, Ian Bryce, Neil Robertson, John Keenan and Stuart Munro. They are all solicitors. More than this however, the first four were, until the recent resignations of Ian Bryce and Ken Dalling, members of the Law Society of Scotland Legal Aid Negotiating Team.

The system of Criminal Legal Aid has suffered what some practitioners have described as “death by a thousand cuts” over recent years. The rates of pay are being eroded – more work is expected for less pay.

The Glasgow Bar Association reacted furiously when the Scottish Legal Aid Board cut the money paid for criminal defence work in JP Courts. Glasgow JP Court, being extraordinarily busy, has a number of Stipendiary Magistrates sitting, whose powers of sentencing equate to those of a Sheriff in summary proceedings. However, the cut of pay disproportionately affected solicitors who worked in Glasgow JP Court. Some complained that they had been sold down the river by the Law Society Negotiating Team who had, in the eyes of many, failed to stand up for the Society’s members in Glasgow. The Glasgow Bar Association has also felt marginalized, as it has perceived itself to have been denied representation on the Negotiating Team since 2008.

In addition, the cut in fees for the Stipendiary JP courts was, in fact, suggested by the Negotiating Team to SLAB, without consultation with the GBA, or indeed any Glasgow criminal solicitor. Many viewed this as the Negotiating Team being happy to sacrifice interests of the GBA membership in favour of the wider Law Society membership. Whilst that, per se, might not be unreasonable, the very least the GBA could have expected would have been consultation, rather than a fait accompli. John McGovern, at the time the head of the GBA, voiced his concerns about the issue in the Firm magazine. The perception was not that this was a decision made to balance interests of members across Scotland, but to” punish” the GBA for its impertinence.

The massive upheaval which occurred after the Supreme Court’s decision in the Cadder case allowed SLAB to further shift the goal posts. Significant and onerous changes were brought about to the Duty Solicitor scheme, following the decision that the practice of questioning suspects in police stations without the suspect having had the opportunity of speaking to a solicitor was illegal and evidence obtained in that way was inadmissible.

The bulk of the criminal solicitors in Scotland boycotted the original “new” Duty Plans. This brought concern that SLAB would use this opportunity to give significantly more work to the Public Defence Solicitors Office. Whilst there were some changes made to the scheme, these fell far short of what many solicitors wanted, but the Law Society Negotiating Team hailed the changes as a good deal. There were more than a few rumblings of discontent.

The criminal Bar fears the action that SLAB might take, without intervention by the Law Society as far as some are concerned, will make it even harder to carry out this work. Many are concerned that ultimately SLAB wants to make the role of the PDSO mandatory if a client wishes to receive criminal Legal Aid. Alternatively, following the model of Legal Aid in England, there are fears of “franchising”.

That then leads us to the news which broke on Friday. Four members, or recent members, of the Law Society Negotiating Team, along with three others, had set up this new company, Esto Law Ltd. It does not appear that any of them are leaving their existing firms for the new entity.

Why would solicitors from Glasgow, Livingston, Edinburgh, Wishaw and Stirling combine to form a practice based in Glasgow?

The concern I have heard expressed is that this is the first step to there being a criminal Legal Aid franchise in central Scotland. The people in the Law Society who would have the best idea of the SLAB plans are the Negotiating Team. It seems unlikely that they would have formed the new entity on a whim, or a wing and a prayer.

Long standing criminal practitioners, like John McGovern, are clearly very concerned for their livelihoods, but more so for the ability of the profession to carry out its vital role in the criminal justice system.

Criminal Legal Aid work is not popular outside its practitioners. The public see the “guilty” being defended. They ask how lawyers can defend “people they know are guilty”. The police, some of them, feel that the defence lawyers are simply “getting the criminals off”.  From time to time, and clearly unjustly, defence solicitors get the feeling that they are seen as nothing but nuisances by the Bench.

But they do a vital job, testing the Crown case and representing and assisting some of the most disadvantaged in our country. Many “criminals” become so as a result of problems such as drug abuse etc. That is not to excuse them, but it is a fact, and if the cycle of offending is to be broken then ironically the ability of criminal defence lawyers to put across their client’s position clearly, and to explain what is happening to the client, plays an important role in that.

When the team negotiating with SLAB as to the future goes off and, almost in its entirety, sets up a new company, outside the geographical areas where many of them are based, is it unreasonable to be concerned?

Civil servants and politicians now face restrictions on jumping from government straight into an industry position related to the area of their responsibilities. The creation of Esto Law looks as if it falls into that category too.

There may be nothing in this at all, but so far, as I understand it, the Law Society has made no comment, and nor have the solicitors in question, although a PR offensive is expected imminently.

To make it worse, Mr Bryce is standing for election as the Vice President of the Law Society, and if successful, will by convention become President the following year, without an election. Does a prospective President have an obligation to the profession not to be seen, even incorrectly, to be behaving in what some of the more polite lawyers have called a “sleekit” manner?

Mr Bryce stood down from the Committee citing his wish to spend more time with his family. Clearly this opportunity arose following that to take up a little of the free time he had created for himself.

Until there is a clear response, excellent lawyers like John McGovern, and solicitors across the Bar Common Rooms of Central Scotland, will be right to be angered by the lack of information, and concern as to the future.