At the beginning of a new decade it is appropriate to note the changes that affected the profession during the last decade before considering the challenges that lie ahead.
The Law Society was the professional body for solicitors, its regulator and it handled complaints against solicitors. Solicitors were regulated as individuals and the rules were contained in the Guide to the Professional Conduct of Solicitors.
Sir David Clementi had not yet been commissioned to review the regulation of legal services. The Human Rights Act 1998 was not yet in force and the Limited Liability Partnerships Act 2000 had not received Royal Assent. We had never heard of sub-prime mortgages, CLACS and CLANS, claims farmers or best value tendering (BVT) for criminal defence work. It was possible to obtain legal aid for routine personal injury claims from the Legal Aid Board. The law lords were the highest court in the land and the Lord Chancellor, who was the head of the judiciary, sat in the House of Lords. The Lord Chancellor’s Department appointed judges and ran the courts and tribunals system. The National Assemble had both executive and legislative functions. The Bank of England’s base rate was 6%. It was a very different world to that in which we live and work today.
The Way We Are
Today, the Legal Services Board (LSB) oversees the regulation of legal services. Rather confusingly, the Law Society is both a corporate group (consisting of The Law Society, Solicitors’ Regulation Authority (SRA) and Legal Complaints Service (LCS)) and the professional body which forms part of that group. Lord Hunt has recommended that this confusion should be rectified by re-naming the professional body. Although the Law Society is the approved regulator of the profession, it has delegated regulation to the SRA and the handling of complaints to the LCS in accordance with the recommendations of the Clementi report. The LCS will be replaced by the independent Office for Legal Complaints (OLC) later this year. Solicitors are regulated as individuals still, but the SRA has added firm-based regulation.
Solicitors may conduct their business through limited liability partnerships (LLPs) and legal disciplinary practices (LDPs), as well as partnerships and sole practices. The LSB plans to allow alternative business structures (ABS) to deliver legal services in 2011.
The Secretary of State for Justice sits in the House of Commons and runs the Ministry of Justice. He is not a member of the judiciary. He does not appoint judges: this is the task of the Judicial Appointments Commission. The Legal Services Commission (LSC) has replaced the Legal Aid Board and legal aid is in crisis, despite the withdrawal of BVT for criminal defence work. The Government of Wales Act 2006 separated the executive functions (the Welsh Assembly Government) from the legislative functions of the National Assembly for Wales. The Bank of England’s base rate is 0.5%.
These changes to the landscape of legal practice have been very wide-ranging, so it is impossible to predict the extent of the changes we will face in the next 10 years. However, these are likely to include the following:
1. ABS will be introduced, but the forms in which they will be permitted, the safeguards provided to the public and the regulatory regime or regimes that will apply are unforeseeable;
2. The LSB will be an active agent for change in the legal services marketplace rather than the passive overseer of regulation that most of us would prefer;
3. A new Code of Conduct will replace the current Code in late 2011. It will place greater emphasis on principles rather than prescriptive rules of conduct;
4. All forms of legal work will be subject to further costs pressure but publicly funded work will be hit particularly hard by future spending cuts,
5. Fewer firms will be doing publicly funded work;
6. More routine work (which may include advocacy) that is done by qualified staff will be done by unqualified staff;
7. Clients will be persuaded to do their own legal work using information technology and to seek legal advice only when complications arise (and even then, they will generally be referred to telephone advice services); and
8. There will be increased law-making powers for the National Assembly.
David Edmonds, the chairman of the LSB has made it clear that he sees the role of the LSB is to change the relationship between lawyers and the public and to enhance the interests of consumers through effective competition and more innovative ways of delivering legal services. The SRA has announced its plans for the new Code of Conduct. At Chancery Lane, we are doing our best to manage these challenges to make them as easy for the profession as possible.
The main business on the agenda of the December council meeting was approval of the budget for 2010. The practising certificate fee and compensation fund contributions had already been paid. The increase in the practising certificate fee is mainly attributable to the obligation imposed on the Law Society to pay the lion’s share of the costs of setting up and running the LSB and OLC. The cost of the SRA has increased, primarily as a result of the rise in the number of interventions and the average increased costs of an intervention.
Local law societies are now entitled to receive one list per year of the details of all practising solicitors in their area free of charge. It is hoped that they will be able to recruit more members and thus better represent the views of the solicitors in their locality.
The Membership Board is preparing a Memorandum of Understanding which will form the basis of the relationship between the Law Society and local law societies. Let’s hope that local law societies will have some input into this “understanding”.
Three other membership issues arose:
1. The review of the accreditation schemes which were returned from the SRA to the Law Society some months ago seems to be taking a lot of time with little progress being made;
2. The concept of a “fellowship of the Law Society” award for professional excellence, which was recommended by Lord Hunt was rejected by the Board, but has subsequently been revived in council members’ e-mail traffic; and
3. Council members’ communications with members – there will be a pilot project consisting of blogs hosted on the Law Society’s website in addition to which 2 council members will be given the e-mail addresses of 1,000 constituents, to begin exchanges. The first review of the pilot project will take place after 3 months, followed by a second review in the autumn.
Now the Society has only an oversight role in regulation, its membership services role has become vital to its future. It’s a pity that it is doing an ineffective job of this important role at the moment.
The government has abandoned its plans to pilot BVT for criminal defence work. Although this is a victory for the profession, let’s hope it is not Pyrrhic. Public spending cuts will force the Ministry of Justice to cut other items of legal aid spending. Whatever they choose to cut is unlikely to be acceptable to the members of the profession who are affected.
The Law Society has started judicial review proceedings to quash the new regulation 7 of the Costs in Criminal Cases (General) Regulations 1986. This limits the amount of costs recovered by a private paying defendant who is acquitted of a crime and is awarded costs are paid from central funds to the amount of costs payable by the Criminal Defence Service.
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