Regulating the legal profession is not a topic that sets the pulses racing. Unless, of course, you happen to be a lawyer who is required to pay more and more for the failings of others — or you are a client seeking redress for your lawyer’s unprofessionalism.
As taxpayers, though, we all bear the costs when in-house lawyers behave as if their prime duty is to their employer and law firms mysteriously collapse into debt.
So it’s worth trying to understand the dispute that has broken out between solicitors and their regulator over whether the Solicitors Regulation Authority should begin regulating lawyers who are not solicitors at all.
“We await the Solicitors Regulation Authority board’s decision in expectation that it listens to the widespread opposition to the proposals,” the Law Society’s chief executive said yesterday.
For “expectation”, read “hope”. And for “hope” read “no chance”. Let me explain.
Self-regulation
In the olden days, before the Legal Services Act 2007 came into force, self-regulation was the mark of an independent profession.
The Law Society regulated solicitors in England and Wales; the Bar Council regulated barristers; and the Institute of Legal Executives regulated lawyers who were neither. When I trained as a solicitor in the early 1970s, the firm’s long-serving managing clerks knew much more about conveyancing or probate than the young partner who had inherited the business from his father.
Reform
Reform is long overdue, Sir David Clementi reported in 2004. “The complexity and lack of consistency has caused some to refer to the current system as a maze.”
It was replaced with a system that some people find even more confusing. The representative bodies — Law Society, Bar Council and Chartered Institute of Legal Executives (CILEX) — are still “approved regulators”. But they must delegate that responsibility to semi-autonomous bodies including the Solicitors Regulation Authority, the Bar Standards Board and CILEx Regulation Ltd (CRL).
And the class-based distinction that I remember from my time as a trainee seems not to have entirely disappeared. Asked by the Commons justice committee last December to explain the difference between a chartered legal executive and a solicitor, Professor Chris Bones, who chairs the CILEX board, said that “a chartered legal executive is a specialist lawyer; a solicitor qualifies as a generalist lawyer.”
Bones complained that legal executives were still looked down on by solicitors:
Only 40% of our members go to university, which means 60% have come from backgrounds such as legal administrators and legal secretaries. Seventy-five per cent of them are women. I think, of two of our leading women advocates and litigators, one of them works in criminal practice in the south-east and the other works in the family court and often represents clients in the Court of Protection.
For the latter, the Law Society continues to misrepresent our members as somehow part-qualified and not quite of the same standard. Our senior litigator in the Court of Protection was challenged by a solicitor as being unqualified and in front of the judge had to justify herself and her professional qualification before she was allowed to proceed.
We are talking here about mid-20th-century behaviour. It is insulting generally to women in law, but particularly insulting to people who come from socially disadvantaged backgrounds. Seventy-seven per cent of our members went to non-selective state schools. They did not get the best break in life and many did not get the publicly funded university education that solicitors do.
As for the attitude of the Law Society, which has been picked up by some of its members, claiming we are not as qualified, I have a prized letter in my possession from a past president of the Law Society that explains that our members cannot be as well qualified as theirs because it costs more to be a solicitor and takes longer. This is the sort of attitudinal and cultural change that needs to shift.
Those remarks were not well received by a member of the justice committee who had practised as a criminal defence solicitor for 16 years before winning the most marginal seat in England in 2019. James Daly, who is standing for re-election as the Conservative candidate in Bury North, accused CILEX of proposing the deliberate destruction of the solicitors’ profession.
He said:
I think that what you are trying to do effectively is create a legal profession on the cheap where standards, intellectual rigour and academic standards do not matter. If we are to follow what you have suggested here today, we are turning the legal profession literally into a situation where anybody without a qualification can call themselves a lawyer and be judged as having similar parity. We will see a complete deterioration of standards if your proposals are followed.
CILEX plans
Daly’s concerns, shared by the Law Society, were prompted by two proposals:
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CILEX wants to change the title of its members from chartered legal executive (or CILEX practitioner) to chartered lawyer. CILEX says that will be less confusing for consumers; the Law Society says it will cause greater confusion.
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CILEX wants to change its regulator from CILEx Regulation Ltd to the Solicitors Regulation Authority. Again, the Law Society fears consumers will think a “chartered lawyer regulated by the Solicitors Regulation Authority” must be some sort of solicitor. The CILEX regulator shares those concerns.
Justice committee report
In a letter to the justice secretary, MPs said the CILEX proposals “raised serious concerns” about the Legal Service Act 2007:
It is difficult to see how the 2007 act can provide a stable and efficient model for independent regulation when it is possible for an approved regulator to decide to re-delegate regulatory authority to another body.
The justice committee was also sceptical about the supposed benefits for consumers:
The regulatory landscape created by the 2007 act is highly complex and specialist knowledge of the legislative framework is necessary to understand how it operates.
In relation to the new proposed titles for CILEX lawyers, there is a risk that by creating a more recognisable title for legal executives… it becomes harder for the public to recognise the distinction between a solicitor, who is qualified to operate across all areas of the law, and legal executives who are qualified only in [a] specific area of the law…
Consumer panel
Concerns were expressed at the end of last month by the Legal Services Consumer Panel, an independent statutory arm of the Legal Services Board. The panel said it had been disappointed with the quality of evidence and information from both CILEX and the Solicitors Regulation Authority:
The low quality of research and analysis done means that the impact of these proposals cannot be properly assessed and much of the content in the regulatory and equality impact assessment sections of the consultation is based on assertion rather than evidence…
Unfortunately, this consultation paper has not assured us that any of our previous comments or concerns have been properly addressed…
Given that we have criticised the lack of detail twice, we are forced to conclude that a decision was taken to ignore this feedback, consequently handicapping us from being able to assess the proposals based on evidence.
Solicitors Regulation Authority
But the Solicitors Regulation Authority seems determined to press ahead. In a consultation response published in March, it said:
We remain open to the idea of regulating CILEX members. We consider that the regulatory model that we consulted on would provide an appropriate framework, subject to undertaking further work to address some specific areas raised by stakeholders.
Law Society
The Solicitors Regulation Authority is about to hold a board meeting at which it will decide whether to proceed with proposals to regulate CILEX members, the Law Society said yesterday.
Ian Jeffery, the solicitors’ chief executive added:
We await the Solicitors Regulation Authority board’s decision in expectation that it listens to the widespread opposition to the proposals from the Law Society, CILEx Regulation Limited, CILEX members and other stakeholders and opts not to proceed with these proposals.
The Solicitors Regulation Authority must seriously consider whether the time, resources and management focus required to integrate CILEX regulation into the Solicitors Regulation Authority is wise, given the other priorities the SRA faces in light of the collapses of Axiom Ince, Metamorph, Kingly and the SSB Group.
Now is not the right time for the Solicitors Regulation Authority to seek to widen its regulatory scope or take on additional responsibilities.
The Solicitors Regulation Authority has failed to make the case for any positive consumer impacts — as highlighted by the Legal Services Consumer Panel’s consultation response — which underscored the lack of evidence and information from both CILEX and the Solicitors Regulation Authority.
This point was also made by the justice select committee who concluded they were sceptical of the argument that re-delegation would represent a simplification that would help consumers.
Any change would negatively impact on consumers’ ability to clearly understand the legal choices available to them and to choose the right legal provider, especially where their legal needs are complex.
In common with CILEX members, we remain of the view that the regulation of CILEX members is best managed under the current bespoke arrangements with CILEx Regulation Limited.
Who regulates the regulators?
So far, I have made no mention of the profession’s super-regulator — the Legal Services Board. It’s the board’s job to oversee the approved regulators.
News of what CILEX was hoping to do broke on 12 July 2022. The Legal Services Board put out an immediate statement:
We have heard from some businesses and individuals that they are concerned about the statements made today by CILEX and CILEx Regulation respectively regarding CILEX’s proposals to look at future options as to the discharge of its regulatory functions involving the regulation of Chartered Legal Executives, which it has delegated to CILEx Regulation.
We remind everyone that changes of this kind will require approval from the Legal Services Board.
Any such approval would follow the statutory processes set out in the Legal Services Act 2007. We also expect any proposals that come forward to us to be subject to wide and thorough public consultation, including engagement with stakeholders.
In the meantime, nothing has in fact changed and we strongly encourage CILEX as the approved regulator and CILEx Regulation as the regulatory body to work together to minimise any risk of uncertainty and worry for affected businesses and individuals, and to ensure continuity of regulation in the interests of the public and consumers.
So the Legal Services Board will have the last word. But the board is thought to be in favour of reducing the number of approved regulators. So CILEX may get what it wants in the end.
Unless, of course, any of the representative or regulatory bodies mentioned in this article decides to spend even more of the money they take from legal practitioners and bring a challenge against whatever decision is reached in the courts. Isn’t that what lawyers do?