Evaluation of the Legal Profession

The evaluation of barristers and solicitors

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  • Created on: 28-05-12 20:16

The Complaints Procedure

There have been quite a few problems with the complaints procedure.

The main concern was the Law Society and Bar Council regulating the legal profession.  These two organisations also represent the interests of solicitors and barristers, so there was fear that there was a lack of impartiality.

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The Complaints Procedure

The complaints procedure was also complicated with a number of different organisations involved in the process:

·         Barristers: The Bar Council originally handled complaints, but in 2006 this changed to the Bar Standards Board.

·         Solicitors: The Law Society originally handled complaints, but this changed to the Office for the Supervision of Solicitors, then the Consumer Complaints Service, and finally the Legal Complaints Service.

 

Now if a person wishes to complain, they go to the Legal Ombudsmen

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The Complaints Procedure

The Other problem: People were complaining about poor service, but the complaints bodies were frequently criticized for delays and inefficiency.

The Legal Service Complaints Commissioner, or LSCC, was appointed because of the Law Society’s inefficiency in handling complaints.

·         In 2006, the Law Society was fined £250’000 by the LSCC for submitting an inadequate complaints handling plan for the coming year.

·         The Legal Service Ombudsman’s report for 2005/2006 reported that only 66.4% of investigations were handled satisfactorily by the Legal Complaints Service.  The Ombudsman stated: ‘Overall performance is well short of where a modern consumer-focused organisation should be.’

·         Comparatively, the LSO’s report 2003/2004 indicated that the Ombudsman was satisfied with the standard of complaints handling in 86.8% of cases dealt with by the Bar Standard Board.

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The Clementi Report

In 2004, the Clementi Report, or Review of the Regulatory Framework for the Legal Services in England and Wales-Final Report, was published.  Some of the main recommendations were:

·         A new complaints body independent of the legal profession.

·         There should be a Legal Services Board to regulate legal professional bodies.

The Clementi reforms were implemented in the Legal Services Act 2007, or LSA

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Legal Services Act 2007

The Act allowed for the creation of the Legal Services Board, which became fully operational by 2010.  Its overriding mandate: ‘to ensure that regulation in the legal services sector is carried out in the public interest; and that the interests of the consumer are placed at the heart of our system’.

The Legal Services Board regulates, polices, controls and ensures that solicitors and barristers meet certain standards and conform to certain standards and codes of conduct, but they don’t hear complaints.

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The Legal Services Board

·         It is headed by a chairman as well as 7-10 members who are appointed by the Secretary of State.

·         The first chairman crucially was a non-lawyer and the majority of members were also non-lawyers.

·         The LSB regulates the current regulatory bodies of barristers and solicitors and professions providing legal services.

·         The LSB is independent of the legal profession and the Government.

·         The LSB also oversee the complaint body which came into effect in 2010, replacing the old complaint system for lawyers.

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Regulatory Objectives Set out by The LSA

·         Protecting/promoting the public interest.

·         Supporting the constitutional principle of the rule of law.

·         Improving access to justice.

·         Protecting/promoting interests of the consumer.

·         Promoting competition in the provision of services in the legal profession.

·         Encouraging an independent, strong, diverse and effective legal profession.

·         Increasing Public understanding of citizens’ legal rights and duties.

·         Promoting and maintaining adherence to the professional principles of independence and integrity, proper standards of work, observing the best interests of the client and the duty to the court, maintaining client confidentiality.

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Promoting Competition and Improving Standards

The 2001 Office of Fair Trading report recommended the removal of unjustified restrictions on competition in the legal profession.  Clementi agreed and recommended:

·         Legal Disciplinary Practices, or LDPs, permitted where barristers, solicitors and non-lawyers are working in the same practice.

·         Non-lawyers should be allowed to own and manage LDPs, but safeguards should be put in place to ensure that the owners are ‘fit to own’ the LDP.

This is similar to the Administration of Justice Act 1985, which opened up the solicitor monopoly on conveyancing by introducing licensed conveyancers, and also the Court and Legal Services Act 1990: which introduced competition in advocacy between solicitors and lawyers by granting solicitors rights of audience in the higher courts.

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LDPs

·         They have been permitted since 2009.

·         Up to 25% of the partners in an LDP can be non-lawyers, and can share ownership of the practice.

·         There are currently 130 LDPs and the majority have involved the promotion of a non-lawyer to the position of partner.

·         The new business structure means that it is easier to retain and reward high-quality non-lawyer staff, as they can now become partners.

·         However, the current recession has resulted in fewer applications to set up LDPs.

·         LDPs are regulated by the Solicitors Regulation Authority, who will carry out character and suitability tests for non-lawyers

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MDPs

·         This structure brings together lawyers with other professionals such as accountants and surveyors.

·         MDPs are able to provide legal and non-legal services; they can act as a ‘one stop shop’ offering a range of services to clients.

·         The Clementi review DID NOT recommend that MDPs be allowed.  Only suggested that they be considered once experience had been gained from LDPs.

Despite Clementi’s recommendations, the government went one step further with the introduction of Alternative Business Structures, or ABSs, by the Legal Services Act 2007.

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Alternative Business Structures

·         ABS allows for external ownership.

·         ‘Tesco Law’: ABS allows for a law firms to be wholly owned by companies like Tesco.  In LDP the partners must own the business.

·         ABS external ownership means that external funding can be invested in legal businesses.

·         An ABS can even float as a public liability company on the stock exchange.

·         Aim: To increase competition for the benefit of consumers and increase investment in legal businesses to improve areas such as use of IT and marketing to expand/provide better quality of service.

·         Peter Williamson, the Chair of the Solicitors Regulation Authority regards the reforms as ‘the legal profession’s equivalent of the financial world’s Big Bang’.  Big Businesses are getting involved in the provision of legal services.

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The Co-Op

·         The first ABSs were licensed in March 2012.

·         The Co-op was one of the first to obtain a license: The Co-op placed themselves at the forefront of taking advantage of the advantages offered by the Legal Services Act 2007.

·         The Co-operative Legal Services, which offers a range of services, such as conveyancing and will writing.

·         The Co-op also intends to move into the family law market.

·         It is based in Bristol and plans to employ a team of 450 people.

The Co-op’s research has found that there is a general mistrust of legal service providers.  The Solicitor profession has not moved with the times and hasn’t taken into account technological advances such as the internet and mobile phones.

The Co-op feels it can be a success in the legal market as people like to deal with a business they feel is a trusted brand and with which they feel they have an existing relationship and know what to expect.

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The Advantages of ABS

·         ABS may provide a cheaper alternative to high street firms.  Increased choice.  Increased competition keeps prices low.

·         ABS will make legal services more accessible. 

·         ABS will allow for new brands to emerge.  The public trust brands and there haven't been many legal brands, except Quality Solicitors.  The commercial sector can provide the knowledge on how to create a brand and knowledge of good customer service.

·         ABS will provide new ways to give legal advice.  Call centres, online services and iphone applications can all be used to provide legal advice.

·         ABS will provide new career path for new lawyers who don’t want the traditional partnership in a law firm.

·         ABS will provide another source of finance for law firms who wish to expand.  A company could own a stake in a business and provide advice, finance and expertise. 

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The Disadvantages of ABS

·         The legal profession question the quality of possible cut-price lawyers.  lawyers: ‘legal services by supermarkets are as ridiculous as lawyers selling beans’.

·         ABS will be a threat to small high street firms; like a Tesco being opened down the street from a corner shop.  Professor Stephen Mayson estimates; 3’000 firms could go bust as a result of the reforms.

·         There is a risk that non-lawyers will prioritise the commercial aspects of ABS over the legal aspects.  Legal firms claim the commercial sector won’t understand the legal sector and this could just be another way to make money; for example, lawyers may be pressured into selling insurance from other parts of the company.

·         ABS may lead to a loss of personal contact; work may be done by paralegals rather than solicitors (though this happens already in traditional law firms.  In cases referred from a claims management company the client and their solicitor will never meet.

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Comments

Smith E

A helpful series of slides on these important, current issues. The material on ABSs and co-ops (slides 11–14) are particularly relevant today and therefore potentially appeal to examiners on some boards. The balance of principles and facts (e.g. Mayson's estimation that 3,000 firms might go into liquidation as a result of ABS firms) is particularly impressive. 

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