Friday, 25 May 2012

LETR – don’t waste time suggesting quality standards for unregulated legal advice

Even before the Co-op’s recent announcement that it intends to create 3,000 new jobs in the legal sector, I did wonder whether the Legal Education and Training Review (LETR) work would be overtaken by events. In taking an evidence-based approach of its review of legal education and training, the review is clearly taking a laudable approach to the issue of lawyer standards. But its fundamental problem is this: in England and Wales, like in many other countries, a large percentage of legal “work” is not reserved for solicitors or barristers alone.

In practical terms, this means the LETR can make whatever recommendations it likes to improve legal education and training. But, if the LETR encourages frontline legal regulators to impose new training burdens on their members, the consequences will be eminently predictable. Individual practitioners who advise on unregulated legal matters can simply abandon their membership of their professional body, and carry on exactly as before. In such circumstances, the LETR’s recommendations would have no impact.

So, I have a suggestion for the LETR, which may make their recommendations more likely to have a lasting impact on the legal market: forget about trying to set standards for unreserved legal activities. Rightly or wrongly, parliament, the LSB and clients have already decided that professional accreditation is not needed by advisers who deal with such matters. Instead, focus solely on addressing standards concerns in those areas of the legal market which are reserved for regulated lawyers – and practitioners cannot avoid complying with.

If the LETR follows this narrow approach, then what skills are required from the undergraduate law degree, the GLD, LPC, and the BPTC suddenly becomes much clearer: in future, the focus of both academic and vocational training for solicitors or barristers should be explicitly tailored to give students the skills they need to advise on or more reserved areas of law – even if other topics are also taught.

For students who followed such courses, the ultimate prize for demonstrating their expert knowledge would be a protected professional title, be it solicitor or barrister. And, unlike the more narrowly focused legal professions, such as licenced conveyancers, students who became solicitor or barristers via this route could then have their pick of which reserved activities they could specialise in, so long as they had previously passed the relevant exams. The one requirement for this ongoing flexibility would be that these regulated professions should undertake regular – and meaningful – reaccreditation, either as they switch between reserved specialisms, or as they continued to offer existing ones.

Of course, building a professional title purely around those advisors who offered reserved activities would mean that many legal advisors would never be entitled to call themselves solicitors or barristers. But, in an era when MDPs are now permitted, one has to ask – is this really a problem? After all, in MDP-friendly Germany, the number of generalist “lawyers” is relevantly small – possibly because other, more narrowly-focused “legal” professions, also do “law work”, but still work in partnership with their more generalist lawyer counterparts.

Here in the UK, it’s very easy to imagine a “law firm” where the technical competencies of its advisors are assured by a range of specialist bodies – or none at all - depending on whether or not they offer reserved legal advice. For conveyancing matters, for example, advisors could choose between being quality assured by a (slimmed down) solicitors-led regulator, or via the Council for Licensed Conveyancers. Lawyers who wished to move into unregulated areas may wish to drop out of the regulatory framework altogether. Alternatively, they could demonstrate their ongoing competence via membership of a relevant trade association, professional institute, government accreditation scheme, or by taking industry-specific exams. If one looks hard enough, there is no shortage of both statutory and non-statutory organisations capable of testing legal advisors’ technical skills, many at a highly advanced level.

No-one likes to lose control of quality control standards, especially lawyers. After all, it took years for the Law Society to surrender operational control of solicitors’ vocational training – but standards did not plummet when new providers entered the market. However, the simple fact is that, even before “Tesco law” takes full effect, mainstream legal regulators already have no control over the quality of vast number of unregulated legal advisors. And, by relying on the widely discredited CPD system as a tool for maintaining ongoing competence, it’s even doubtful whether the mainstream English and Welsh legal professions currently regulate the quality standards of their own membership to any meaningful degree.

The LETR review process is an ideal time to the profession, collectively, to admit these facts. Once it does so, then it stands a chance of devising a quality system that bears some resemblance to the way legal advice is actually delivered in this country.


  1. The trouble is, Richard, the regulators like to control more not less. I would dearly love to see them NOT controlling legal education as they have made a hash of it up to now. But I'm not optimistic.

  2. That’s the joy of asking an independent third party to conduct a review: they can pose basic questions to regulators – such as: “Why are you even involved in this activity?” - and then put the onus on those regulators to justify their position.