Friday, 6 September 2013

Rip it up and start again

The on-going spat over the future regulation of legal services in England and Wales is yet another example of the never-ending turf wars between professional regulators.

As someone who is interested in lawyers’ regulation, but also in legal innovation and technology, I find the whole debate both self-indulgent and archaic. Just how is it relevant to making legal services more accessible and affordable? And, in an era where legal services are (finally) becoming widely available online, who cares about the governance regimes of a group of professions that have their roots in the 19th century?

And this set me thinking. We now live in a world of entity regulation and sector-specific accreditation. Therefore, why not embrace both concepts wholeheartedly? In doing so, we could scrap the vast majority of the current legal services governance framework, with all its duplication, expense, petty politics and dubious commitment to quality standards. Not only could we abolish the SRA and BSB, we could also axe state-sanctioned professional titles, restrictive entry paths into the sector, non competency-based CPD requirements for individual practitioners, and anachronistic rules governing rights of audience and reserved activities. 

In its place, all legal service providers could be placed under a general legal duty to ensure the legal services they offer are delivered in a competent manner. Not only would this duty cover traditional law firms and barristers chambers, but also online legal service providers and entities such as citizens’ advice or trade unions. 

Entities found to have failed in this duty could have a range of sanctions imposed on them, including the withdrawal of the rights of their advisors to appear in court, disbarment of individuals from working in the legal sector, and the closure of entire trading entities. 

To ensure quality standards were maintained, a beefed-up LSB could be reconstituted. However, the LSBs’ role would no longer be to referee between squabbling front-line regulators. Instead, it would accredit new or existing quality standards, institutions – even commercial enterprises - to ensure competency in the legal sector was delivered. These accredited entities would, in turn, periodically test the competence of all legal advisors (of any kind) that a legal service provider (of any kind) employed, on a legal-specialism-by-legal-specialism basis. 

For example, having first established that the regime was capable of ensuring quality, the LSB would be free to tender for a body to administer the new quality assurance scheme for advocates. The winner could be the existing BSB – but it could equally be a commercial entity with relevant experience. Additionally, the LSB could appoint legal specialism-specific institutions, such as the Chartered Institute for Personnel and Development, to be an approved body for accrediting individual legal practitioners – in this example, in relation to employment law.

Alternatively, where sector-specific quality standards already exist, such as those developed by the Council of Mortgage Lenders, the LSB could presume that legal service providers who had been approved by such bodies were competent in that particular legal specialism, unless compelling evidence to the contrary was offered. For both online services, and also providers of “exotic” legal specialisms, individuals or entities could be accredited to manage a peer review process among practitioners – quite a nice role for experts who are approaching retirement. 

For their part, all legal service providers would be required, on an annual basis, to self-certify the competence of every member of their staff who was involved in the delivery of legal advice – including the development of online legal services. It would not be necessary to test the competence of individual advisors on an annual basis – that would be too onerous. However, the provider should be able to confirm annually that all existing accreditations remained valid. 

The exact nature of the legal service provider’s self-certification obligations would depend on the range of legal specialisms they offered. For example, a single legal specialism provider would only be required to provide evidence of competence from a single LSB-approved accreditation scheme. By contrast, a provider offering a range of legal specialisms would be required to provide evidence of on-going competence from multiple LSB-approved agencies. An annual consolidated report, confirming on-going competence in all practice areas offered, would be filed with the LSB in accordance with defined reporting criteria. The self-certification report itself would be a public document. 

I freely admit my suggestion is leftfield, and advocates abolishing much of the existing framework for regulating lawyers that has grown up over many years. But so what? If ensuring quality standards is, genuinely, the key outcome of any professional accreditations scheme, then that outcome should be delivered in the most objective, and cost-effective manner, possible. And, if lawyers’ historical governance structures stand in the way of delivering that objective, they should be swept aside. 

1 comment:

  1. This comment has been removed by a blog administrator.