Legal Business Blogs

Comment: A period of silence from the profession on access to justice would be welcome

Inevitably with an event as dramatic as Brexit, the unintended consequences keep coming. One of the less noted is the 11th hour reprieve it has granted the Law Society, which in the spring was looking on course to lose much of its fund-raising powers as part of a government review.

Obviously, the administration of Theresa May has got more pressing matters on its plate than legal service regulation. Yet the review kicked off by the Treasury has still put in train a sequence of reviews/land grabs/shoulder-shoving by our main regulatory and representative bodies.

On one hand you have the Legal Services Board and Solicitors Regulation Authority calling for further regulatory tinkering to aid un-served consumers on the high street.

At the other end, you have bodies like the Bar Council and, to a lesser extent the Law Society. Bar Council chair Chantal-Aimée Doerries QC last month delivered a speech of startling complacency at the International Bar Association, encapsulating this stance. The speech’s title, ‘Barbarians at the Gate: The Attack on Professionalism’, tells you about the mix of special pleading and denial regarding the materialism of the profession.

While it may sound contradictory, neither viewpoint strikes me as likely to address the issues at hand. First the pro-consumer lobby. The legal profession in this country does a very poor job of providing retail services at a remotely affordable price. Go into any high street law firm in the south of England and you will find solicitors utterly determined to charge customers between £200 and £350 an hour for routine services. It is a joke but one that endures because the profession maintains an unshakeable faith in its divine right to charge ridiculous money for well-established law. In that context, more tinkering with the regulatory framework is not going to suddenly unleash a wave of competition, and certainly has not so far. The only way that may happen is if you put something genuinely radical on the table – far more radical than anyone has proposed so far.

It is an English disease to believe such reforms can create free-market solutions. Effective markets need key elements such as transparency, liquidity and buyers armed with useful information. When legal services is a twice-a-lifetime distressed purchase, a market solution will not come easily. Institutional legal services – which have all those elements – operate as a far more competitive market. For such reasons, the profession’s propensity to keep playing the access-to-justice card to head off debate is distasteful, with the exception of some areas of legal aid.

A more honest discussion would accept both that we need a minimalist approach to regulatory change and the reality that lawyers like money and it will take more than some fiddling around the edges to get them to cut their rates in half.

What might work other than a high-risk, scorched-earth approach to regulation would be the creation of a kitemark framework scheme where providers are vetted and have to provide services to agreed and transparent rates. Effectively implemented it would see retail customers flock to it.

Instead what kitemark does the profession have? The QC system for the one branch of the profession instructed by other professionals. Says it all.