Regulation roundabout: legal services at a critical turning – where to now?
Posted on 19th Oct 2016 in Legal Profession
A number of stories about legal services regulation have surfaced over the last few months, some of them calling into question the future of legal regulation, if not the professions they regulate, and most of them pointing back in some way to the regulators’ regulator, the Legal Services Board (LSB). This roundup covers the most interesting or notorious ones.
A Vision of the future
The LSB itself published a report Evaluation: Changes in the legal services Market 2006/07 – 2014/15 in the summer, and then last month it published its Vision for legislative reform of the regulatory framework for legal services in England and Wales.
What this vision boiled down to, it seemed, was an attempt to redraw the map of legal regulation to focus, not on the professions, each of whom now had its own regulators (all of which in turn were governed, or regulated, by the LSB itself as arch- or uber-regulator), but instead on activities. So rather than the present system — where each profession was qualified and regulated to carry out certain activities, and had both a regulatory body (such as the Law Society, Bar Council, or Chartered Institute of Legal Executives) to control entry and qualification to practice, and a disciplinary body (the Solicitors Regulation Authority, the Bar Standards Board, CILex Regulation) to enforce its code of conduct — you would have a system in which you would identify certain activities as requiring a certain level of aptitude and then allow (train, facilitate, license) whoever had that aptitude, whatever their professional title, to perform them.
This would promote competition, it is said, and so benefit the consumer, in the LSB’s view; but the downside, acknowledged by the LSB, is that it would remove the assurance of getting a certain type and level of service from a “branded” type of provider, such as a barrister or solicitor.
To further erode the distinctive identity of the individual legal professions, the LSB also recommended that there should be a single regulator for all legal services. And guess who that would be? Well, not necessarily the LSB actually; rather, it might be a new Legal Services Authority.
So, at any rate, thought Joshua Rozenberg in the Law Society Gazette, digesting what he described as the “Uber-regulator’s blurred vision”.
Rozenberg trained as a solicitor and I trained as a barrister, so both of us may be regarded as having an interest in the continuity of those professions, whereas if the LSB got its way they might go the way of attorneys, serjeants, barons and other redundant legal professional titles (in this jurisdiction at any rate). Do notaries exist, outside of the world of Italian opera, where they appear as devious buffoons or fakes (L’Elisir d’Amore, Don Pasquale etc)?
However, there were a lot of practising members of both professions, as well as qualified legal journalists, who thought the LSB’s vision more than simply blurred. And for some, it seemed little more than a desperate exercise in justifying its own existence.
Not surprisingly the individual professional bodies were not too happy about it either, with Legal Futures recording that “Law Society and Bar Council condemn regulators for “attacks” on profession”
Baroness Ruth Deech former head of the Bar Standards Board, one of the hived-off professional regulators subject to the LSB’s jurisdiction, tweeted
Hard to think of anything the LSB has done to better legal services. ABSs were in the Act. https://t.co/figq4FDLPN
— Ruth Deech (@BaronessDeech) September 23, 2016
McKenzie Frenzy (contd)
One thing the LSB may certainly be credited with achieving is a great deal of promotion for the idea of McKenzie Friends, particularly of the professional sort, but of course these are not currently regulated in any official way recognised by the LSB, who nevertheless opine that they may answer to some of the “unmet needs” of litigants in the post-legal aid world.
Earlier in the year, the Judiciary ran a consultation on how the courts should manage the conduct of McKenzie Friends in court proceedings, whether the existing practice direction was sufficient or whether there should be formal rules of court, and whether the name should be changed to Court Supporter or something else. You can read most of the published responses, including those by professional bodies and regulators, in a roundup on the Transparency Project website.
There was also an entertaining thread on the subject, started by @NearlyLegal in response to a story in Legal Futures on an alleged new “firm” of professional McKenzie Friends, who credited their success in part to all the fuss raised by the Bar and Judiciary.
Less amusingly, just this week we saw the severe risks attendant on allowing unqualified and unregulated so-called “professionals” to operate in the legal services market, with a story of barefaced fraud that resulted in imprisonment for the perps, but who knows what loss and anguish for their client victims: see Gazette, McKenzie Friends Jailed for Deceit in Family Court.
QASA in a quagmire?
Meanwhile, one of the LSB’s early triumphs, the Quality Assurance Scheme for Advocates (QASA), despite being given a qualified greenish light from the Supreme Court some time ago, seems to be stuck in an implementational quagmire, which no one really exhibiting much enthusiasm for renewing its oft-reset roll-out deadlines. The accreditation scheme for criminal advocates was due to be re-launched this spring, following the Supreme Court’s ruling last year and a fresh consultation (there have been five so far!) by the The Joint Advocacy Group (JAG) last October. But have we seen anything? Nope.
See also Legal Futures, QASA: a four-year delay and still we wait.
Parting question: Have several years of vicious slashing of legal aid funding ensured only the fittest barristers survive, thereby obviating need for a cumbersome form-filling winnowing-out process?
BSB Enforcement Report
The Bar Standards Board recently published its annual report on enforcement the Bar Handbook, of its code of conduct, for the year to 31 March 2016. According to the report,
One particular chambers was the source of 11% of all new complaints raised in 2015/16. Two barristers from that chambers had 48 cases opened against them. To put that in context, the total number of complaints that we opened for all chambers over the year was 433.”
Most complaints come directly to the BSB but some 20% come via referrals from the Legal Ombudsman (LeO). The subject matter of the complaints included dishonesty (53 out of the 433), failure to cooperate with the LeO (52), making misleading statements or submissions (29), otherwise misleading the court (27) and rudeness/misbehaviour out of court (22).
As well as external complaints, there are internal cases where the BSB investigates conduct (often self-confessed by the barrister concerned) such as failing to have a practising certificate, being convicted of an offence (other than drink driving), and discreditable conduct. There is also a separate panel that considers fitness to practice.
You can read the full report here (pdf).
The Solicitors Regulation Authority recently launched its second consultation on the Solicitors Qualifying Examination. Currently, solicitors can qualify through a large number of providers and in a number of ways, and yet there is no consistent benchmark. Under the proposed changes, anyone wishing to be a solicitor would have to undergo the same independently-set professional assessment before qualifying.
The SRA proposes that candidates will need to be qualified to ‘degree level or equivalent’ and be tested on knowledge of law and legal processes, legal thinking and writing. The exam will be taken in two stages: a computer-based multiple-choice exam taken in six parts, and a practical stage, including presenting arguments and drafting. Candidates would also need to complete a period of workplace training, such as in a student law clinic, working as a paralegal, or a formal training contract.
Not everyone has welcomed the move. Considerable’ opposition came from universities and academic representative groups. (See Gazette, ‘Dumbing down’ fears over legal super-exam.) However, the SRA insists that the case for the solicitors qualifying exam remains strong. And in the Times law Brief newsletter, Jonathan Ames expressed his approval of the idea:
The SRA wants to set a high bar, but allow anyone to jump over it who has the spring in their brains to do so. Fancy the traditional route of university, post-graduate vocational study and work-based training? Fine. Sit the unified examination at the end of that regime and leap over the final hurdle to the grassy uplands of solicitorhood.
At the other end of the spectrum, fancy yourself as a bit of a child prodigy? Equally fine. Learn as you see fit using a mix of methods; sit the exam and join the others in those sunlit grassy uplands. (Note to prospective solicitors: the uplands are not always grassy and sunlit.)
And the regulator envisages plenty of options in between. Critics have already started shouting – SRA officials probably wake in the night to the drumbeat of hectoring: “dumbing down”, “shameful betrayal of tradition”, “lowest common denominator”.
But the reality is that the current process of qualifying as a solicitor in England and Wales – and throughout the UK, for that matter – is overly complicated and arguably obsolete. Law degrees are too academic with many arguing that the one-year conversion course – the graduate diploma in law – renders them unnecessary.
The two vocational elements of post-graduate training – the legal practice course and the bar professional training course – are, say critics, thinly disguised extortion rackets. Training contracts – or “periods of recognised training”, as the SRA has bizarrely renamed what are still basically articled clerkships – and barrister pupillages are increasingly only available at the large commercial law firms or chambers.
Without doubt, streamlining, modernising, re-engineering (select jargon to suit taste) is needed. The SRA will face opposition, but it should stay the course.
Judiciary: speaking out
Though we have not quite reached the idea of judges as legal service providers (it will come, mark my words), the courts and tribunal judiciary, and magistracy, are still subject to discipline and scrutiny. However, they cannot always (de)fend for themselves when attacked or criticised, or at least not with the same effective bodies representing them as the professions. A couple of recent incidents have thrown this distinction into high relief.
In August, at the height of the silly season, Judge Patricia Lynch QC caused gasps of faux-shock from some and sturdy approval from others when she used a four-letter body-part expletive in response to a sweary defendant: she gave as good as she got. But, popular as her pinch of saltiness proved to be, conservative commentators agree that it was unwise to return fire against a foulmouthed fascist of a defendant when sending him down for, among other things, foul and abusive language (though in his case it was far worse, far right and downright racist), in persistent breach of an anti-social behaviour order. According to the report in the Telegraph:
John Hennigan, 50, was involved in a slanging match with Judge Patricia Lynch QC at Chelmsford Crown Court on Wednesday.
Hennigan was being sentenced for breaching an Asbo by using racist language towards a Caribbean woman and her two young children when he said she was a “bit of a c—“.
Judge Lynch replied: “You are a bit of a c— yourself.” When Hennigan shouted back: “Go f— yourself”, the judge replied: “You too.”
In its report the BBC did not repeat or even hint coyly at the content like the Telegraph, but noted drily that the Judicial Conduct Investigations Office (JCIO) was investigating. A trip to the JCIO website reveals a list of resolved “Disciplinary statements“, none of which at present relates to Judge Lynch. However, it appears she has, er, form when it comes to acerbic put-downs, according to this article from Essex Live, Chelmsford judge Patricia Lynch QC’s best putdowns.
We await further developments.
However, as Penelope Gibbs points out on the Transform Justice blog (Where is the line which judges should not cross?) if Judge Lynch gets into trouble with the JCIO it will have been her own doing, in crossing a line which it was probably unwise to cross, whereas a magistrate who wrote to the Times has also got into hot water, but for rather different reasons. Her letter basically pointed out that
Anyone who goes into a magistrates court on any day will see that the Crown Prosecution Service is in a state of disarray. The quality of the lawyers used by the CPS is high, but these lawyers are sadly being forced to publicly apologise all the time — for example, for not having complied with earlier court directions to provide files to the defence or for failing to meet timeframes set by law, due to the shambolic administration of the CPS.
The letter, says Gibbs, does not mention any individual case or prosecutor. But she was reported to the JCIO and received a formal warning six months later.
But, asks Gibbs, is it so wrong for a magistrate to air her frustration with the CPS based on her own experience?
In fact, it seems that there is one law for magistrates, and another for judges, who are often heard ranting about the CPS and its effeciencies, or the marvellous way all the technology (video links, electronic filing etc) always seems not to be working properly – I have heard judges bang on about this in court myself – and they are not disciplined. Perhaps if they wrote to the Times they would be.
A more serious problem for judges is not being probed by the JCIO, which I imagine is rare at senior judiciary level, but rather the ill-informed or ill-researched criticism of the media, particularly the right-wing newspapers like the Sun, Mail and Telegraph. A recent incident involved the President of the Family Division, Sir James Munby, whose A View from the President’s Chambers (No 14) was widely mis-reported, notably in the Daily Mail. In the articles he was said to have complained that too much money was being “squandered” on lawyers in public law care cases, and that the number of texpayer-funded professional engaged in such cases should be cut – in fact he said nothing of the sort, as Sarah Phillimore and a group of other family lawyers wrote to complain, as recorded on the Transparency Project blog. The complaint was rejected by the Mail, and a reference to IPSO, the supposedly independent regulator of the press, was also rejected, on the ground that the complaint was not made or supported by Sir James himself as the person “directly affected”.
I have written a blog on IPSO and its failings in this regard for the Transparency Project. Press regulation: why we are unimpressed by IPSO.
One of the points I make is that it is almost impossible for a judge who is misquoted or misreported like this to answer back. He cannot enter the arena. Moreover, IPSO’s own rules envisage complaints being made by third parties in the event of inaccuracy, of which this seems a clear example.
What if Judge Patricia Lynch QC had been misquoted? Perhaps she has. I suppose we will find out soon enough, when the JCIO publishes its decision.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.
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