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. 

Reinvent Law London – make a date for 2014

If, in June 2014, you get a chance to attend a half-day conference organised by Michigan State and Westminster Universities, I suggest you go. Known as Law Tech Camp London in 2012, and ReInvent Law London in 2013, this event has quickly become the highlight of my legal year. In just over half a day, you’ll see updates from legal market innovators, Dragons’ Den-style concept pitches and mind-bending blue-sky thinking.

In 2012, arguably the most left-field presentation came from Miami Law School’s Michael Bossone who delivered his eulogy to legal service innovation via YouTube. This year, the award for the most “out there” presentation was probably a toss-up between Olivia Zarcate and Lah Leutrim Ahmeti’s. Olivia Zarcate wanted us to understand the law with metaphors, and spread the law with images. Have you ever seen legal practice areas mapped onto the human body? Well, Reinvent Law audience members have.

Lah Leutrim Ahmeti, meanwhile, had a neat idea for a consumer law mobile phone app. The app would allow users to fight their corner with stroppy shop assistants when trying to return goods, by using location-based software to download the shops’ returns polices directly onto the phone. What made Lah’s presentation so different? It was delivered through the medium of interpretive dance. I’ve never seen that method of delivery at an IBA event.

In fact, Lah’s presentation went to the core of what Reinvent Law is all about – using technology to replicate, assist or replace much of what lawyers do in a more efficient way. For example, in 2012 Daniel Katz from Mitchgen State University had introduced the concept of quantitative legal prediction – analysing data contained in past court rulings to advise potential litigants about whether or not they had a case worth fighting.

This year, Don Philbin from Picture It Settled® showed how historical data from thousands of real-life litigated cases could statistically predict how the other side was likely to react to ongoing settlement proposals with up to 80% accuracy. Martin Langan demonstrated Road Traffic Representation, a website that allowed clients to self-diagnose - for free - their likelihood of success when accused of breaching England and Wales’ road traffic laws. RTR’s software could also automatically generate a detailed briefing note for a court advocate, should the client decide to proceed with their case.

Another strong theme of ReInvent Law London was the use of technology to crowd-source justice-related solutions. Westminster University’s Lisa Webley revealed plans to draw on the university’s pool of law and IT students to develop a computer aided diagnostic and legal advice system for members of the public who no longer had access to legal aid. Alice de Sturler, meanwhile, revealed how she used social media to try to generate new lines of police enquiry in “cold cases” – unsolved crimes that took place in the pre-internet era.

Although ReInvent Law was resolutely cutting edge in its outlook, it concluded in a way that reconfirmed the value of old-fashioned human interactions. Following onsite drinks, sponsored by LexisNexis, several of the participants decamped to a nearby pub to continue to debate. But of course, being techies, we’d organised the post-event drinks in advance, using socialmedia. Well, we would, wouldn’t we?

My unexpected Tesco Law experience

I’ve followed the Tesco Law concept since it was a glint in the OFT’s eye. And I also love Richard Susskind’s concept of the latent legal market – the idea that there is a wealth of untapped legal business out there, just waiting to be delivered to consumers at an affordable price by innovative service providers.

 

So, naturally, when my partner and I recently discussed moving in together, I immediately pondered getting a cohabitation agreement from an alternative legal service provider. I admit, that might not sound particularly romantic of me. However, having spent two years studying land and property law as an undergraduate student, I figured it was a no-brainer. We both own our own properties, and both want to clarify where each other stand by living together, both legally and financially.

 

I confess my “quick and dirty” price comparison yielded surprising results – and not in way I expected.

 

First up was good old Lawpack, a bargain-bucket PDF download for £10.20. It comes with some useful guidance about what a cohabitation agreement should contain. But, basically, I would be on my own, in terms of finalising the necessary documentation.

 

Next up was Halifax Legal Express. This provider offered a three tiered level of service. The most basic offering – an interactive, document assembled, solution - cost £99. That’s not cheap, compared with Lawpack alternative, but was certainly more high-tech than downloadable PDF. If I wanted the draft document reviewed by what Halifax ambiguously describes as “our legal team”, the price would be bumped up to £154. And, finally, having the draft document reviewed by a “lawyer” would cost £349 – with email and telephone support and advice thrown in.

 

In terms of more traditional providers, I was naturally drawn to Quality Solicitors – after all, there’s branch on a high street close to me. But here, I hit a snag. The website couldn’t offer me a fixed price up front. Instead, it wanted me to complete a three-stage contact form, so a firm representative could call me back to discuss my requirements. Personally, I’m not a fan of this approach. Ideally, I want to know roughly how much someone is going to charge before I speak to them to get a precise quote. I hate having to fob off potential service providers, when I discover their charge-out rate isn’t competitive. I find it all just too darned awkward.

 

Finally, I reviewed the Co-op’s offering. After all, they’ve recently made a thing about their new family law service, “providing customers with greater accessibility to legal advice and better value for money.”

 

Unfortunately, the gap between the Co-op’s publicity and its actual offering appears to be a yawning chasm. The price of this provider’s cohabitation agreement? A whopping £660, including VAT. That’s almost twice as much as the most expensive Halifax offering - and you can’t even choose a cheaper, self-service option. Basically, you can either phone for advice or, erm, go elsewhere. So that’s precisely what I did.

 

So, there we go. I’m not going to use Lawpack because I’m worried it seems too cheap, however irrational that sounds. I can’t be bothered with Quality Solicitors, because their form-based system for generating a quote is annoying (and potentially embarrassing). And the Co-op? Sorry guys, you’re way too expensive for my budget. Halifax, by contrast, appears to have nailed it, in terms of their service offering and pricing structure. Who’d have thought this particular provider would be a paragon of the new legal market?

 

And there’s the lesson, I believe, for anyone who is interested in the manner in which the UK legal market is evolving. There’s the high level concept - new market entrants should be able to provide innovative legal services at a highly competitive price - and the reality - some don’t.

 

Indeed, in some circumstances, it is quite possible that new market entrants might offer a service that is every bit as inaccessible to your average consumer as the traditional law firms they aim to replace. And, in relation to the Co-op’s cohabitation agreement, this certainly seems to be the case.

 

How disappointing.