Written by: Barbara Hamilton-Bruce
What it means to be a lawyer
In January the president of the solicitors’ representative body, the Law Society, John Wotton caused a bit of a kerfuffle with his prediction that, sooner or later, the distinction between solicitors and barristers will in any meaningful sense disappear.
Now the chances are that many non-lawyer readers will not care nor might they actually understand the distinction. In a 2010 poll shoppers were asked if they understood the difference between barrister and solicitor – more than four out of ten did not (44%) (Shopping Around, Jures 2010. In case you are wondering, barristers typically do the courtroom work (or advocacy) – although, just to confuse matters, increasingly solicitors are encroaching upon their territory (in particular, solicitor-advocates who have what are known as ‘higher rights of audience’ allowing them to do advocacy work).
Moving on, over the time that I have been working in the law the line between the respective roles has blurred. The line moves both ways – and so for example, increasingly clients are able to approach the Bar directly (as opposed to via solicitors as they traditionally used to) through an initiative called ‘Bar Direct’.
Anyhow, I challenge the Law Society’s president. If there is to be a blending of services, why stop at barristers and solicitors? The rise in prominence of chartered legal executives, as they have gained advocacy and practice rights, challenges the old-school hierarchy as does other types of lawyers (licensed conveyancers, trade mark lawyers, notaries and law cost draftsmen). The future opportunities for a Walton-style happy legal family seem endless.
The law and lawyers, steeped in history and tradition and all holding a shield of protectionism, are faced with challenges presented by legal and regulatory changes; the legal landscape is changing and at a faster pace than the seismic shifts of the continents. And whilst lawyers may celebrate, bemoan or remain ambivalent about the changes to their profession it’s important to draw matters back to the recipient of legal services: the consumer. What do all of these changes mean and does any of it really matter?
Well, in short: yes. The changes introduced through the Legal Services Act 2007 are designed to open up legal services by encouraging competition within the legal marketplace making it easier for individuals (and companies) to access the legal services they need and in the manner they chose.
Regulation and reservation
As the law stands there are certain activities that can only be conducted by ‘regulated lawyers’. These six activities are known as ‘reserved’ activities (advocacy, litigation, probate and notary services, the drawing up of certain legal instruments and the administration of oaths). These activities have been reserved to ensure that individuals of sufficient qualification and experience provide the service. Clients who access legal services from regulated providers have the benefit of compulsory professional indemnity cover and a clear pathway in the event that they have cause for complaint.
Unreserved activities do not, by law, need to be conducted by regulated lawyers – but if they are customers receive the benefit and protection of a regulated service provider.
There are 10 regulatory bodies under the Legal Services Act 2007. The Legal Services Board has been introduced under that legislation as ‘oversight regulator’ (the regulators’ regulator is my preferred term). The LSB is currently consulting on whether to make Will-writing a protected activity due to concerns that consumers are left unprotected if they receive incorrect advice.
Why a regulated lawyer?
The most obvious benefit that a consumer receives from dealing with a regulated lawyer is the protection afforded when things (and they do) go wrong. Lawyers have responded poorly to complaints. It is one area that, in this brave new world, lawyers have to work on. All regulators have strict compliance codes for lawyer’s complaint handling and, so that a customer knows how to complain and what to expect, the codes are prescriptive setting down timescales for responses and the customer’s right to appeal. Customers who don’t obtain solace from the lawyer can go to the Legal Ombudsman Service (a further creation of the Legal Services Act 2007) whose ‘job is to resolve legal complaints in a fair and independent way – we will not take sides’. The Legal Ombudsman Service is the point of reference once the lawyer’s complaint process has been exhausted.
Alternative business structures
The ongoing opening up to competition of legal services under the Legal Services Act 2007 – often compared to the ‘big bang’ in the financial services market in the 1980s – allows for what are known as ‘alternative business structures’. This regulatory relaxation means non-lawyers (such as retailers and banks) can own law firms and law firms can float on the stock exchange.
The opportunity to own and invest is not open to everyone – to become an ABS a business will have to have an ABS licence granted by a regulator. The licence will only be granted subject to compliance with a whole raft of provisions and tests of suitability designed to protect the consumer and the independence of lawyers in the way they provide legal services. It is very early days and ABS applicants are tiptoeing through the application process with the anticipation that the first licence will be granted in early spring. It’s certainly interesting times particularly for those who believe that external investment will force a much more consumer orientated approach to supply of services.
If this ‘regulatory maze’ sounds confusing, then that’s because it is. But regulation of legal services is changing and, in the main, with positive outcomes for the consumer.
And whilst these changes takes place the consumer needs to know what kind of lawyer they are dealing with. Ask about their experience and qualifications – and I put it in that order because qualification does not automatically equal experience. Sitting below the titles I have mentioned are many types of legal practitioners who may be qualified (police station representatives), part-qualified (trainee solicitors or students of the Chartered Institute of Legal Executives) or highly experienced paralegals and litigation executives without having chosen to gain qualification but still conducting work under the supervision and protection of a regulated individual or entity.