Notes on the Westminster Legal Policy Forum keynote seminar – 25th February 2020

This ICLR special report has been compiled to give members a flavour of what was discussed during the annual Westminster Legal Policy Forum, held on the 25th February 2020. The theme of the day was ‘regulation, consumer protection and responding to innovation’, with speakers drawn from across regulators, representative bodies, academia and the legal services sector from across England and Wales. Further information about upcoming Westminster Legal Policy forum events, as well as publications from the forum, are available here.

The Independent Review of Legal Services Regulation – key issues to be addressed

Professor Stephen Mayson, Centre for Ethics and Law, University College London and Lead, Independent Review of Legal Services Regulation

The day began with a keynote speech by Professor Stephen Mayson outlining the progress of his hotly anticipated recommendations on legal services regulation. Professor Mayson took the opportunity to address some of the key issues that had arisen during the course of his research. Professor Mayson stressed that his report was written with the consumer as the primary concern, saying that given the scale of unmet legal need across England and Wales, it had become increasingly clear, both that the changes he will propose will be too radical to be achieved within the Legal Services Act 2007 (LSA) and that he increasingly views reform as something that will need to take place sooner rather than later.

Professor Mayson raised four key issues that he has identified under the current regime:

  1.  The vulnerable – Professor Mayson highlighted the vast level of unmet legal need in the country, saying that the law is too complex and too important for the level of access available. Professor Mayson also criticised the “unprincipled” nature dichotomy of high barriers to entry to deliver reserved legal activities, which are treated as essential until a consumer can no longer afford them, at which point the consumer becomes able to self represent.
  2. The dabblers – Professor Mayson also criticised the narrow entry gate to the profession, which allows a wide range of practice. He highlighted the fact that the simultaneous licensing of title and activity allows legal practitioners to hold themselves out as capable of delivering in areas in which they have limited or no competence and experience, leading to a lack of credibility.
  3. Buridan’s ass – Professor Mayson discussed the philosophical concept of Buridan’s ass, in which a donkey placed equidistantly between two piles of food is unable to make a decision as to which one to move towards and starves. He compared this to regulatory reform, suggesting that unless a decision was made on either moving towards risk-based regulation, or some kind of reworking of the existing system then reform would become paralysed by a lack of choice.
  4. The Gordian Knot – Professor Mayson highlighted that his report will raise many questions as to what an independent regulatory system should look like, however, he highlighted that the current system creates the artifice of the approved regulator, which holds an unclear position between being a profession focused representative body and publicly focused regulator. Professor Mayson suggested that the time has come to sever the Gordian knot between the regulatory body and approved regulator.

The full text of Professor Mayson’s speech is available here, with further information about the independent review of legal services available here.

The future of legal services – technology adoption, the changing shape of professional services firms and regulatory development

A lively panel discussion followed the keynotes speech, with panellists providing analysis on what they saw as key issues in the regulation of legal services

Neil Rose, Founder and Editor, Legal Futures – Mr Rose discussed some of the need for reform, pointing out that whilst the current system works well for some, there remain an awful lot of people for whom it doesn’t. Neil pointed out that the attitude in the sector still gravitates towards “we do things this way because this is how it’s always been done”. He raised the idea that the LSA has acted as a catalyst in allowing new businesses to come in and disrupt the sector, pointing out that concerns over compromised standards have not been fulfilled. Neil also pointed towards the new Solicitors qualifying exam suggesting that it could lead to seismic changes in the profession. He also pointed towards further reforms as creating the opportunity for the sector to further grow and develop.

John Gould, Senior Partner, Russell-Cooke; Author, The Law of Legal Services and Member, Advisory Panel, Independent Review of Legal Services – Mr Gould began by asking if there is really a need and an appetite for change. He then went on to describe how the current system has become something of a “lottery winners bungalow”, with many developments and aspirational additions tacked on, with no coherent whole. Mr Gould suggested that this has created a system where compliance officers have become a necessity as a go-between between lawyers and regulators, with the public completely excluded, with no clarity as to how the system works. He suggested that a clearer and more understandable system must be developed with the relationship between activity and title being clearly defined, to create a system that can function for the public, practitioners and regulators.

Duncan Wiggetts, Executive Director, Professional Standards, ICAEW – Mr Wiggets discussed how the distinction between lawyers and non-lawyers has become increasingly blurred. He suggested that for consumers of legal services costs had become a key factor in how purchasing decisions are made, leading to a convergence between accountants, lawyers and other business advisors. Mr Wiggets pointed towards the Brydon and Kingman reviews into audit and financial reporting, suggesting that these could inform the ongoing work of the Mayson review. He suggested that both these reports pointed towards the primacy of public interest and the need for risk-based regulation.

Kirsteen Forisky, Head of Innovations, LEAP Legal Software – Ms Forisky pointed out that changes in the legal environment have fundamentally altered legal service delivery. She pointed out that to remain competitive firms must begin to use technology, particularly cloud-based software, in order to improve their efficiency and information-sharing capabilities. She pointed out that this will enable firms to work in an agile way, meeting client demands in today’s business environment, allowing them to offer an enhanced client experience, without creating added pressures and costs on employees.

Derek Sweeting QC, Vice-Chair, Bar Council – Mr Sweeting discussed the risks present in opening up the profession. He cited current concerns over unregulated legal providers, raising the example of Paul Wright v Troy Lucas & George Rusz, citing the danger of unregulated provision. Mr Sweeting suggested that consumers prefer to rely on named professionals, who they can trust and rely on to provide quality services. Mr Sweeting suggested that the growing number of solicitors entering into the profession combined with increased public legal knowledge would meet the unmet legal need gap in a way that allowed people to place trust in the legal sector.

Chair’s closing remarks

Lord Gold

Based on the discussion throughout the morning Lord Gold took the opportunity to urge the Ministry of Justice to take action on simplifying the regulatory regime, highlighting the fact that unless there is political action, the profession will continue to debate and delay ad infinitum. The Conservative peer raised concerns over regulators ability to respond to technology and other challenges and said: “If you leave it to the brilliant lawyers we have in this country, they will obfuscate and delay and it will never happen … Now is the time for the MoJ to rip this up and decide what exact regulatory regime we need for the future.”

The state of the market – transparency, consumer engagement and reflections on the 2016 Market Study

Chris Jenkins, Economics Director, Competition and Markets Authority – Mr Jenkins gave his thoughts on the progress that had been made since the release of the CMA’s hugely influential 2016 study on the legal services market. He pointed out that in the initial study there had been a pledge to review the progress approximately every three years, and told the event that a review was planned for the second half of 2020. Taking a broad view Mr Jenkins suggested that tackling the issue of public ability to asses price and quality had not been fully addressed and that more work was needed on the issue to improve consumer ability to make purchasing decisions. He called for regulators to push forward on improving standards of transparency, making it easier to compare services and providers. He did point out however that there had been greater progress in implementing changes improving independence and regulatory transparency which had been a positive move, although he suggested that there was still more work needed in improving consumer redress.

The focus on consumers – public confidence, competition and managing ‘unmet legal need’

Simon Davis, President, The Law Society – Mr Davis discussed the findings of the recently published legal needs survey, which was produced by the law society in partnership with the LSB and YouGov. Mr Davis pointed out that the results of the survey suggested that when people did purchase legal services from a solicitor the vast majority were satisfied with the service and outcome. He pointed out that many consumers were unsure if their problem constituted a legal problem and therefore failed to seek advice. He suggested, therefore, that the solution in tackling unmet legal need was improving legal aid provision and increasing public legal education, to help consumers identify when they had a legal issue.

Dr Ashwini Natraj, Senior Economic Consultant, Consumer and Behavioural Economics Team, London Economics – Dr Nataraj outlined the work that London Economics has been doing on the relationship between behavioural economics and public engagement with the legal sector. She discussed some of the ongoing issues that exist in public decision making around legal services, highlighting problems such as the complexity of the market, stress purchasing, information asymmetry, and the infrequency of purchasing. She pointed out that this has led to low awareness of consumer protections, low confidence in the sector, particularly amongst vulnerable groups and difficulty balancing price and quality. She suggested that behavioural economics approaches could be used to improve engagement and understanding of legal regulation, particularly as there was a difficult balance between providing enough information to give consumers clarity, which has to be balanced against overwhelming consumers with a vast weight of information.

Mariette Hughes, Head Ombudsman, Legal Ombudsman – Ms Hughes discussed the role of the Legal Ombudsman in improving public confidence in legal services. She pointed out that as the last resort and last port of call the ombudsman is often the key touchpoint in maintaining public confidence amongst the most vulnerable and most challenging cases. However, she pointed out that there was still a presumption that the ombudsman would be able to provide consistent supply and quality, raising questions over the resources available to the ombudsman. She also pointed out whilst having a single ombudsman for the whole sector helps to improve confidence, there is also the risk that a single ombudsman can not leave some gaps, which must be met by specialised regulators to avoid damaging public confidence.

Rob Houghton, Founder and Chief Executive Officer, really moving and The Law Superstore – Mr Houghton discussed the role of price and quality comparison sites in providing consumers with resources to better understand the legal market. He pointed out that having resources to compare prices allows for greater influence of natural market forces over an opaque marketplace. He suggested that having greater price and quality competition could only stand to benefit consumers, as it would increase the information available whilst also pushing providers to improve the value proposition of their services, effectively creating a new way to sell their services on value and quality, allowing them to compete with larger organisations.

Julia Salasky, Founder and Chief Executive Officer, Legl – Ms Salasky discussed the role that technology can play in addressing consumer side challenges. She suggested that as expectations of a certain level of consumer experience increase, failing to meet this expectation reflects increasingly negatively on the profession.  She suggested that technology could provide an incredible opportunity for the industry to improve communication around value and transparency of products, which could go on to inherently improve public confidence in their legal purchases, and therefore public confidence in the law as a whole.

Regulation in the legal services market – structures, roles and independence

Matthew Hill, Chief Executive, Legal Services Board (LSB) – Mr Hill raised concerns over the fact that unmet legal need was still a major problem and that the legal market was not working for a significant proportion of the population and economy. He compared the current regulatory system to a chair with two legs, saying “You can sit on it perfectly comfortably provided a lot of people spend a lot of time holding it steady for you. We do spend a lot of time making independence work by investing time and effort in it.” Suggesting that the current system can be made to work and that further change can be wrung out of it, however, to truly create an impact there must be a wholesale change in legal regulation. He said “The existing system is undoubtedly complex. It’s built around professions and not consumers. For example, reserved legal activities and title-focused regulators make sense to regulators and sectors, but not necessarily to the public.” He suggested that whilst public legal education played a valuable role, it clearly had not significantly shifted public views on the sector and was sometimes used as a way of blaming the public rather than taking responsibility for change. He ultimately suggested that reform would have to come about at some point and should be built around meeting consumer needs first. Mr Hill also questioned whether, given the scale of some regulatory bodies, they were all fully able to deliver public outcomes.

Ewen Macleod, Director of Strategy and Policy, Bar Standards Board  (BSB) –  Mr Macleod agreed that change was needed to improve public confidence. He suggested that the greatest risk to consumers came about during the initial advice to consumers. He, therefore, suggested that the answer did not lie in creating further barriers, and instead lay in working to improve reputational issues. He said that through broadening the scope of after the event regulation, increasing access to the Legal Ombudsman and improving public information over how to access legal services, public confidence could be improved. He suggested that the board supported a greater focus on risk-based approaches, but that a title was necessary to provide clarity during purchase, suggesting that there is an issue over how risk-based approaches can map onto the public consciousness of existing titles and recognition. Mr Macleod also suggested that the BSB needs to be ready to respond to new developments in legal technology, in order to meet public expectation on the issue.

Chris Handford, Director of Regulatory Policy, Solicitors Regulation Authority (SRA) Mr Handford explained that given the fact that as of yet there have not been changes announced in the regulatory regime, therefore the SRA would continue to reform within the boundaries of the existing framework, stressing that the SRA was limited by decisions made at a government level and within the LSB, and within the confines of the LSA. He put forward several reforms that had been put implemented by the SRA, including rewriting solicitors standards to become more principles focused; work to increase trust and consistency, including exploring better quality indicators and ongoing competence; he talked about legal technology suggesting that there is significant potential in the area to improve access to justice, however, also flagging that the SRA must be alive to the potential risks technology could create. Mr Handford suggested that the direction of travel in the profession was towards increasingly blurred boundaries, with a lot of change coming, pointing out that regulators must be ready to embrace and act on this change in order to manage it and effectively fulfil their function.

Stuart Dalton, Director of Policy and Enforcement, CILEx Regulation (CRL) – Mr Dalton began by advocating strongly for the reforms being suggested by Stephen Mayson, suggesting that CRL could be ready to address much of the regulatory void that the report had identified, particularly around tech, helping to address much of the identified need, suggesting that under its current position CRL is already well equipped to deliver regulation around specific activities, given its current structure in regulation across the legal sector. Mr Dalton also took the opportunity to highlight CRL and CILEx’s strong commitment to regulatory independence. Emphasising that CRL has committed to achieving the highest possible degree of independence from CILEx as is possible under current statutory limits. He suggested that in the future regulatory independence, with a public focus would become the norm in legal regulation and that CRL would be leading the way towards this change.

Chair’s closing remarks

Rt Hon the Lord Falconer of Thoroton – Lord Falconer, the architect of the LSA gave his thoughts on the proceedings saying it was “apparent that the legal services market is not servicing the whole market properly and that market forces will not solve that problem”. He said that clearly the solutions had to come from a combination of regulators and public funding, pointing out that government buy-in is necessary to implement and initiate genuine change. The peer gave a nod to discussions about the complexity of the regime, as well as the growing role of technology, saying: “I am sure that there are things that could be done to improve the structure, but I believe that the structure is sufficiently flexible for the regulatory issues to be met. I am not that persuaded that a fundamental shift in the legislative structure is a good idea… but I do think one of the big problems is the failure of the state to provide sufficient legal aid and other forms of funding for advice that the market would not otherwise provide.”

SRA report on disability in the workplace reveals disparity with overall population

Research released by the SRA has highlighted unwillingness amongst legal professionals with a disability to inform their employer of their situation. This, in turn, suggests that firms may not be doing enough to facilitate working conditions that are conducive to working with a disability.

The report finds that 3% of solicitors report as having a disability, a figure that has not significantly changed in 10 years. This compares with 13% of the UK population, demonstrating a significant disparity. This suggests either that individuals are under-reporting due to discomfort over identifying as disabled, or that firms are not doing enough to improve accessibility for employees.

Paul Philip, SRA Chief Executive said: “It is important that people who need legal services have access to a profession that is diverse and inclusive. We know that diverse businesses are better businesses so wanted to find out more about what lies behind the apparent under-declaration of disabilities in the legal workforce. Our new report also looks at what firms can do to promote a much more disability-inclusive working environment, highlighting best practice.”

The full report is available here.

LSB announces new consumer panel appointment in push for increased public focus

The Legal Services Board (LSB) has announced the appointment of former barrister and current Chief Executive of Citizens Advice Epsom and Ewell, Lisa Davis to the newly formed Legal Services Consumer Panel. The role of the panel is to try to better gauge public engagement with the legal services sector.

The appointment comes on the back of the LSB’s plans to establish a public panel that can be listened to and drawn on for feedback and insight. The standing panel would also be accessed by the Consumer Panel, as well as the regulatory bodies, to ensure the views of the public inform debate and help shape decisions.

Chair of the LSB, Dr Helen Phillips said: “I am pleased to congratulate Lisa on her appointment to the Consumer Panel. Her diverse experience of national consumer groups, the bar and regulation and will add great value to the important work of the Panel as we increase our focus on public engagement. It is vital that legal services are accessible to everyone in society and we are engaging the Panel and others to develop a new strategy for the sector. As part of this we want to hear the views of people who require legal services and ensure the needs of the public are at the heart of service design.”

Lisa Davis said: “I am thrilled to be joining the Legal Services Consumer Panel and representing the interests of the many consumers of legal services. I particularly look forward to helping the panel to deliver its key priority aim of prioritising the needs of vulnerable consumers, an area I’ve been focusing on in my role within the voluntary sector.”

Read the full announcement here.

Regulatory responses to COVID-19

We’ve put together the following list to examine different regulator responses to the COVID-19 pandemic. If you have any questions or best practice for the rest of the ICLR community, please do get in touch, and we will be happy to include any of these in the next newsletter.

The Nederlandse Orde Van Advocaten has released a table of all responses to the pandemic that affect those working in the sector, including alternative methods for filing claims, and updates on court closures. Link available here.

The ABA has set up a task force to help Americans and those working in the profession cope with the repercussions of the pandemic, helping to identify areas of need and mobilise volunteer lawyers. Link available here.

The Bar Council of England and Wales has collated all advice on practice and legal aid into one guide, providing an overview of best practice response to the virus for practitioners.  Link available here.

The Victorian Legal Services  Board has published updated CPD guidelines to reflect the challenges presented in attending CPD sessions for lawyers under the current circumstances. Link available here.

The Canadian Bar Association has opened up pandemic planning resources to the profession, as well as releasing a podcast to help practitioners prepare. Link available here.

The SRA have now said that they will allow individual providers to decide how to carry out assessments for Qualifying Law Degrees and the Graduate Diploma in Law. With regards to the Legal Practice course, they have said that course providers may choose how to assess elective courses, and have relaxed the supervision rules for core subjects. Full statement available here.

The Bar Standards Board have decided to cancel upcoming April examinations, with students being asked to wait until the next examination session in August. They are undergoing discussion as to how this will affect pupillage requirements, as the later assessment date, and inability to complete Inns of Court sessions will leave many students unable to demonstrate the necessary requirements to begin a pupillage. Link to statement available here.

Pennsylvania State Governor Tom Wolf has mandated that all law firms and other legal services close their physical offices, in order to limit the spread of the virus. Link available here.

Key findings from largest ever legal needs survey in England and Wales

A survey has been conducted by YouGov on behalf of the Legal Services Board (LSB) and the Law Society of England and Wales, looking to examine the current state of legal need across the jurisdiction. A nationally representative sample of 28,633 members of the public was consulted on  34 different types of legal issues, in order to gather representative data. The survey found that six in ten adults (64%) experienced a legal problem in the last four years. Key findings from the report include:

  • High unmet legal need, with 31% of those who had a contentious legal problem which was resolved, not getting help, wanting more help or their issue taking longer than two years to resolve.
  • High levels of service satisfaction with solicitors, people demonstrated greater satisfaction with the service they receive from solicitors (90%) compared to 74% from unregulated providers.
  • Difficulty in searching for prices – 24% of respondents reported difficulty searching for prices.
  • Many respondents not paying for their services directly, 57% of people who obtained professional help from a main adviser did not personally pay for it – of those 49% obtained advice through a free service, 7% were funded by an insurance company and another 7% by friends and family.

The Legal Services Board Chair Dr Helen Phillips said:

People often need legal services at the most important times of life, and sometimes when they are at their most vulnerable. Whether they’re buying, selling or renting property, seeking redress following a poor service, or a victim of crime, everyone should be able to access professional support if they need it.

However, this survey reveals a significant access to justice gap. For a variety of reasons people do not always seek legal advice. Many fail to identify the issues they face as being legal in nature. They perhaps class it as a housing issue or a financial problem or put it down to bad luck. This means they then don’t seek for the right kind of help.

An executive summary of the report is available here.

The full technical report is available here.

The interactive individual legal needs dashboard is available here.

BSB publishes annual report on diversity at the Bar

On the 31st January, the Bar Standards Board of England and Wales (BSB) published its annual report on diversity at the Bar. The report demonstrates that there has been some progress, with increased diversity and representation across the profession. However, the report also demonstrated that whilst the direction of travel was positive, there is still significant change required before the Bar becomes fully socially diverse.

Key findings from the report include:

  • The number of women practising has risen by 0.6% over the past year (38% of the total practising)
  • 13.6% of practitioners are from black, Asian or minority ethnic backgrounds, up 0.6% from last year
  • There are more female pupil barristers (54.8%) than male pupil barristers (45.2%) a trend that has continued over the past four years
  • Only 6% of those surveyed disclosed a disability, significantly lower than the 13.4% of the employed working-age population in the UK who have a disability

BSB Head of Equality and Access to Justice, Amit Popat said: “While the data follow a similar trend to those seen in recent years insofar as they show a slow and steady improvement in gender and ethnic diversity at the Bar, there is more to be done before the profession can be said fully to reflect the society it serves. One of the BSB’s key strategic aims is to encourage a more diverse legal profession, and these annual diversity reports provide a strong evidence base so that action can be taken. So, we urge all barristers to complete the diversity data questions when renewing their practising certificates for the year ahead.”

The full report and findings are available here.

BSB publishes research into barristers’ attitudes to CPD revisions

The Bar Standards Board (BSB) has published a report on the impact of their revised approach to regulating barristers’ Continuing Professional Development. The report found that the general attitude towards the scheme amongst barristers was positive, with many welcoming the improved flexibility of the rules, however the report also suggested that there was some misunderstanding over the role of reflection in maintaining professional standards.

The report focuses on the CPD approach launched in 2017, which emphasised outcomes for barristers with over three years of experience, replacing the prescriptive hours focused approach.

Read the full report on the BSB site (PDF).

Ethics and in house lawyers

A survey of 400 in-house lawyers, carried out by law professors from Exeter University and University College London in collaboration with flexible legal services provider Lawyers on Demand, has revealed that a third of in-house lawyers are sometimes placed in difficult moral positions.  The research found that:

  •  32% were asked ‘to advise or assist on things that made them uncomfortable ethically’
  •  45% were asked to advise on proposed company action which was ethically debatable
  •  In-house lawyers involved in the survey were ‘hazy (sometimes very hazy)’ on the content of the SRA handbook and their professional obligations
  • Eight out of 10 agreed their legal department had been criticised for inhibiting or slowing commercial decisions.

Read more about the study or download the report here.

BSB modernises its regulatory decision-making

The Bar Standards Board (BSB) has taken a number of steps to modernise its regulatory decision-making.  Recent changes include:

  • A new edition of its handbook – introducing new Enforcement Decision Regulations
  • The establishment of a new Independent Decision-making Body (IDB)
  • The creation of a new Independent Reviewer role to carry out requests for the review of individual decisions
  • The launch of a new website to make it easier for the profession and the public to access the information they need. It includes dedicated sections for the public, for students and for barristers and other legal professionals, containing everything they need to know about BSB rules and guidance.

Read more about these changes…

Reasonable adjustments in the provision of legal services: a report for the Solicitors Regulation Authority

The Competition and Markets Authority reported in 2016 that one of the major barriers to accessing and understanding legal services was a general lack of accessibility, particularly in how information is presented and shared.  Charities such as Citizens Advice and Age UK have suggested that this is of particular concern regarding people who, due to mental or physical disabilities, might face heightened challenges.

The Solicitors Regulation Authority (SRA) commissioned YouGov to undertake research with disabled people in England and Wales. The aim of this research is to explore the reasonable adjustments that solicitors and law firms can make for legal services and information provision to be more accessible for disabled people.

Download the report