Legal Services Board of England and Wales release new report on ongoing competence

The Legal Services Board of England and Wales (LSB) has released a new blog alongside a newly commissioned report on ongoing competence. The blog highlights the fact that ‘the LSB’s work on ongoing competence is central to its regulatory objective to protect and promote the interests of consumers. Consumers should be able to trust that legal professionals have the necessary and up to date skills, knowledge and attributes to provide good quality legal services.’

The report was commissioned from legal market consultancy Hook Tangaza, following the LSB’s call for evidence in 2020, which identified ongoing competence measures used in legal services and other professional sectors in England and Wales as a key area of interest, stakeholders told the LSB that it would be beneficial to understand the approaches of other jurisdictions.

The blog sets out how the LSB has used the report to “identify some models in jurisdictions taking a first-principles approach to assuring ongoing competence, thinking about what they are trying to achieve and why. As a result, these jurisdictions are increasingly attentive to the regulation of legal professionals beyond the point of qualification i.e. in-practice regulation.”

Adding that “In-practice regulation has historically been overlooked around the world, while ensuring ongoing competence has not been prioritised or linked to a wider understanding of what competence looks like in a practising legal professional. This is out of step with consumer expectations of competence and the robust checks they assume are in place throughout legal professionals’ careers.”

Read the full report here, read more about the LSB’s work on competence here, or read the blog here.

Top jurists call for regulatory change to increase access to justice

During the 9th June ABA discussion on regulatory change, Vice Chief Justice Ann A. Scott Timmer of the Arizona Supreme Court stated that despite decades of efforts to encourage practising lawyers to perform a minimum of 50 pro bono hours annually to increase access to justice, minimal results have been achieved.

Timmer is part of a growing list of top jurists calling for regulatory change to expand access to justice. Instead of relying on pro bono work to increase legal access, for instance, regulatory changes could lead to nonlawyers handling some routine legal matters. She and chief justices from Utah, Michigan and Texas discussed some of these changes in the inaugural Redesigning Legal Speaker Series, which is intended to provide a forum to explore the legal profession’s regulatory changes underway and the challenges they face. Three ABA entities — the Center for Innovation, the Center for Professional Responsibility and the Standing Committee on the Delivery of Legal Services — have teamed up with the Institute for the Advancement of the American Legal System at the University of Denver and Legal Hackers to organize what is planned as a quarterly series.

The debut program, Redesigning Legal: Leading from the Bench — Expanding Access through Regulatory Innovation, also featured Chief Justice Bridget McCormack of Michigan, Chief Justice Nathan Hecht of Texas and Chief Justice Matthew Durrant of Utah, and showcased how supreme courts in Utah and Arizona have ushered in regulatory change to expand access to justice.

In Arizona, legal paraprofessionals can now practice in four distinct areas. The state Supreme Court also eliminated model rules that prohibit the sharing of legal fees with nonlawyers.

In Utah, 23 pilot programs have been approved in the state’s seven-year “sandbox” approach, Durrant said. They range from a solo practitioner giving his sole paralegal 10% ownership in the firm to law students at Brigham Young University providing counsel to domestic violence victims.

Hecht, who is also chair of the Conference of Chief Justices, said courts are rethinking their roles because jurists realize pro bono efforts are not sufficient to provide access to the courts for many Americans. McCormack added, “We are going to forge forward in Michigan because this is now the time in the process to try. And the big winner could be the public.”

Read more here.

Legal Services Board of England and Wales consultation on new processes for changing regulatory arrangements

The Legal Services Board of England and Wales (LSB) has launched a consultation examing proposed new rules and guidance for alterations to regulatory arrangements. The LSB is considering the rule changes as part of its statutory functions in assessing applications from the nine different regulatory bodies in England and Wales to alter their regulatory arrangements. The existing process for this has not been substantially reviewed since 2010.

Following engagement with the approved regulators, which act as the representatives for each of the different legal professions in England and Wales, as well as the regulatory bodies, which regulate these professions in the public interest, the LSB has developed new rules and guidance intended to make sure the applications are explicitly and demonstrably focused on ensuring that all changes promote the regulatory objectives.

Matthew Hill, Chief Executive of the Legal Services Board has said, “In discussion with regulators, we have developed new rules and guidance to ensure changes to regulatory arrangements are focused on promoting the regulatory objectives. We have made our expectations clearer and set out the regulatory changes that require our approval and the circumstances in which we may refuse to consider an application. The changes should lead to higher quality, evidence-based applications, and more efficient use of both the LSB’s and regulatory bodies’ resources.”

Read more about the consultation here, or view the documents here, or the background to the proposals here.

Legal Services Board of England and Wales releases diversity dashboard for England and Wales profession

The Legal Services Board of England and Wales (LSB), which acts as the oversight regulator for professional frontline regulators in England and Wales has released a dashboard of diversity statistics collected from each of the frontline regulators it oversees, alongside the publication of an independent report into regulator diversity. The report was produced by the Bridge Group, an independent consultancy focused on diversity and inclusion, and is focused on evaluating the success of regulatory interventions and the success of evaluative indicators used by regulators following diversity and inclusion initiatives.

Findings from the report include:

  • Legal regulators should use the data they collect about the professionals they regulate to inform and evaluate their diversity and inclusion initiatives.
  • Similar challenges face regulators in other sectors, indicating that the legal services sector is no different to other professional sectors in the slow pace of change in improving diversity.
  • To improve the limited evaluation of initiatives the report recommends the use of the theory of change model, or similar, for a more systematic approach.

Based on the findings of the report the LSB has urged legal regulators to do more to understand what is and is not working in terms of diversity initiatives, in order to encourage greater diversity and inclusion in the sector, as well as focusing on what is making a meaningful difference for professionals and consumers.

The diversity dashboard has been produced to facilitate better information sharing and improve transparency between the regulators. It brings together the latest diversity data collected by the regulators on the people they regulate.  It is now easier to compare different parts of the regulated sector. Data includes the proportion of; women employed, age, ethnicity, disability, sexual orientation and attendance at a fee-paying school. The dashboard will be expanded in the coming months to include information on how the diversity of the professions differ at entry and at senior levels over time.

Dr Helen Phillips, Chair of the Legal Services Board, has said: “The LSB and the legal regulators share the statutory objective of encouraging an independent, strong, diverse and effective legal services sector. However, despite the positive intentions over the last few years, there has been little progress on improving diversity of our sector. On the whole, regulators have been successful at collecting diversity data, however, data is not an end in itself. Understanding what initiatives have the greatest impact is essential if we are to see a radical change in the diversity of the legal profession. Evaluation must be a core part of deciding which regulatory interventions to make. The Independent Bridge Group report that we commissioned highlights that there has been little collaboration on diversity and inclusion. We want to help change that and a key part of our approach will be to work with regulators to encourage information sharing and cohesion to address these sector-wide issues. It is clear that the challenges we face are so complex and far-reaching that tackling them requires a concerted effort. By collaborating with others across the sector, we will support a profession that reflects the society it serves and that meets consumers’ differing needs.”

Read the full report here, or view the diversity dashboard here.

Legal Services Board calls for consumers to be put at the heart of regulation

On the 29th of March the Legal Services Board (LSB) launched a consumer-focused strategy for legal services in England and Wales, which included a call for all regulators in England and Wales to collaborate to reshape legal services to better meet society’s needs. It called for action from all regulators from its position as the oversight regulator, having been formed by the Legal Services Act 2007.

The ten-year strategy reflects that there are a number of challenges facing the legal services sector, and that many of these require a coordinated effort by different people and organisations in the sector, pursuing a common agenda. The strategy has identified nine challenges within the sector. These include closing gaps in consumer protection, empowering consumer choice and achieving fairer outcomes.

The LSB has also identified other priorities in the strategy, such as a statutory review of the reserved legal activities, a review of professional indemnity insurance, and work on simple legal products, but it has deferred these until resources permit.

Dr Helen Phillips, Chair of the Legal Services Board, said:

“While there have been many achievements over the last ten years of independent regulation, there continue to be significant levels unmet legal need. We must seize this moment to drive forward a strategy that promotes the public interest, supports competition and growth, and encourages diversity and inclusion. The LSB cannot do this alone – everyone in the sector must work together to pursue our shared interests. We are greatly encouraged by the commitment to collaboration that characterised so many responses to our consultation. Only by working together can the sector emerge strongly from the Covid-19 pandemic and successfully tackle the challenges it faces.If we all work together, we will improve diversity, and the sector will look more like the society it serves. The system will better support innovation and be equipped to respond to the changing market. Consumers will be able to shop around and reward firms that offer high-quality, transparent, and affordable services. The strategy is necessarily ambitious, and if we all play our part, we can achieve our vision. Through collaboration, we will reshape services to create a strong and resilient sector that better meets society’s needs.”

Read the full strategy here, or more from the LSB here.

Law Society of Scotland publishes a new strategy to improve regulatory process and enhance competition in the legal sector

The Law Society of Scotland’s Regulatory Committee has revealed a new two-year strategy, which is focused on improving regulatory processes, enhancing competition in Scotland’s legal sector and ensuring robust consumer protections. The Regulatory Committee is independent from the Law Society’s Council (the governing body of the Society), and is responsible for overseeing a number of sub-committees, as well as setting its own strategy, with the remit of regulating practice. The committee is made up of an equal numbers of solicitor and non-solicitor members and is led by a non-solicitor convener.

The new strategy sets out five overarching objectives. The first,  ‘protect’, is focused on protecting consumer and public interest, and protecting the rule of law. The second, ‘scrutinise’, is focused on examining the work of the subcommittee and other delegates of the committee to ensure their value and productivity. The remaining three are ‘enhance’, ‘align’, and ‘develop’. ‘Enhance’ is focused on raising public awareness of the society’s work, as well as developing a proportionate and principals focused regulatory structure that will enhance the competitiveness of the Scottish legal sector. ‘Align’ is focused on making sure that the regulatory committee’s work aligns with other groups in the society, whilst ‘develop’ is a process of internal self-reflection and development.

Craig Cathcart, Convener of the Law Society of Scotland Regulatory Committee said: “The legal profession has a key role in our society. Solicitors help people at pivotal points in their lives whether they are buying a new home, planning for the future of their family, building a successful business or upholding their rights in court. Anyone who seeks the advice of a solicitor must feel confident that they are in good hands. Having a robust and fair regulatory system which sets high standards for entry to Scotland’s solicitor profession and throughout a solicitor’s years in practice, along with clear consumer protections, provides that assurance.”

Read the full strategy here. 

Legal Services Board annual regulatory performance review pushes improvements in performance and governance

The Legal Services Board (LSB) has published annual reports on the performance of the eight legal services regulatory bodies. Each  one of the eight providers regulates a different type of lawyer in England and Wales, and has control over its day to day operations. However under the Legal Services Act 2007 (the Act), they have the same obligations and are assessed against the same 27 outcomes across five standards. The standards are: regulatory approach, authorisation, supervision, enforcement, and well-led: governance and leadership.

The report has found that the performance of most of the regulatory bodies has improved since the last assessment in November 2019. Notably, the Council of Licensed Conveyancers (CLC) and the Solicitors Regulation Authority (SRA) have met all the outcomes required across all standards. However, the report also found that although regulatory bodies are generally performing well against the authorisation, supervision and enforcement standards, there is a lower level of achievement in meeting the standard required for outcomes under the regulatory approach and well-led standards.

The LSB is therefore considering further actions including:

  • Undertaking a thematic review around regulatory approach in the coming year, depending on regulatory bodies’ progress in meeting the standard required.
  • Several of the not met ratings are associated with the quality and clarity of applications for statutory approval of changes to regulatory arrangements and practising certificate fees. Whilst some regulators appear to be experiencing little difficulty in meeting these standards, the LSB recently started a review of its rules and guidance in this area.

In last year’s report, the LSB raised concerns over some regulatory bodies not fully embedding the regulatory performance framework into their governance arrangements. The LSB has subsequently launched targeted reviews of the Bar Standard Board (BSB) and Faculty Office (FO) on performance against the well-led standard. These reviews formally began in September 2020 and are scheduled to conclude in early 2021.

Matthew Hill, Chief Executive of the Legal Services Board, said:

“Independent regulation protects the public and benefits the profession, and we have seen some welcome improvement across the regulatory bodies, particularly in their enforcement of standards and increased independence. However, there continue to be areas where improvement is needed. No regulatory body that is putting the public first in its decision-making and acting transparently to promote the regulatory objectives set out in the Act should have any difficulty in meeting the standards of good regulation. We expect the regulators to take the performance assessments as indicators of where improvements are needed to ensure they have the right mechanisms in place to carry out their regulatory duties effectively and efficiently. Appropriately regulated lawyers who deliver consistently competent and ethical services will give consumers stronger confidence in the sector and help build a legal services market that better meets the needs of society.”

Read the full report here. 

UK Competition and Markets Authority review of legal services market

The UK Competition and Markets Authority has released an updated report based on its initial findings on the legal services market published in 2016. The report recognises the improvements that have been made in increasing the transparency of the price, service and quality of legal services, but said there was more to do to increase “the intensity of competition between providers”, calling for reforms particularly in the currently unregulated sector of the market.

The unregulated sector has grown significantly over the past few years, largely due to the rising use of legal technology products. The report raises concerns over the current regulatory framework and the focus on professional titles and reserved activities, as opposed to the risk profile of activities. Which it suggests could restrict competition, create unnecessary costs and leave a regulatory gap.

The CMA has recommended three actions within the existing regime which would help “deliver reform in stages”.

  • First was creating a mandatory public register of unauthorised providers for certain legal services and mandating that they offer redress options to consumers.
  • Second was that the Legal Services Board (LSB) should carry out a review of the reserved activities.
  • Third was the independence of regulation from professional representation. The CMA noted that “significant improvements” have been made as a result of revised internal governance rules imposed on bodies like the Law Society and Bar Council by the LSB.

Andrea Coscelli, the CMA’s chief executive, said: “This is an incredibly important sector that people often turn to at a time of great need, which is why the CMA made recommendations to improve consumer outcomes, including through increasing transparency, as well as to address concerns about the way in which the sector is regulated. It is positive to see changes that have already been made, but more progress is needed. We encourage the Ministry of Justice, the Legal Services Board and other legal services regulators to continue to work towards reform and to make sure the sector works well for consumers long into the future.”

Read the full review here or the LSB’s response here.

Regulatory developments in Ireland

On the 19th November, The Legal Services Regulatory Authority (LSRA) published two separate reports with recommendations to the Minister for Justice.

The first report is entitled, “Setting Standards: Legal Practitioner Education and Training“. The report is focused on examining the competence and standards required to practise as either a Solicitor or a Barrister in Ireland. The report contains two central recommendations:
1. A clear definition of the competence and standards required to practise as a solicitor or barrister should be developed;
2. The introduction of a statutory framework to establish a new and independent Legal Practitioner Education and Training Committee, which would be statutorily required and empowered to set the competency framework for legal practitioner education and training; develop a common set of competencies and standards for admission to professional legal training, and ensure that existing providers of legal education and training adhere to the standards required by the competency framework on an ongoing basis.

The second report is entitled, “Greater than the Sum of Its Parts? Consideration of Unification of the Solicitors’ Profession and Barristers’ Profession“. The report examines the case for the unification of the profession in Ireland, putting the question out for comment to the public. However, the Authority has concluded that at this stage in its regulatory timeline it would be premature to recommend that the two branches of the profession be unified. The Authority undertakes in the report to return to the matter within five years when it anticipates that the landscape for legal services providers will have evolved sufficiently for it to reconsider the question of unification as posed in the Act. This is due to upcoming changes including the introduction of relaxed rules around legal partnerships between barristers and other barristers or solicitors, as well as further consideration around multi-disciplinary practices.

These reports fulfil the LSRA’s statutory mandate to ensure the maintenance and improvement of standards in the provision of legal services by legal practitioners. Both reports have been submitted to the Minister, as required under section 34 of the Legal Services Regulation Act 2015.

The LSRA’s press release on the two reports is available here. (PDF)

 

 

Law Society of British Columbia to Widen Access to Legal Services

On September the 10th the Law Society of British Columbia elected to make changes suggested by a task force on modernisation established this January.

The task force cited ongoing changes in the legal market, which have been accelerated by the ongoing COVID-19 pandemic, as well as the pace of change in other jurisdictions, as to why change was needed.

Recommendations include:

  • evaluate how existing and emerging technologies can better support legal services and address regulatory impediments that exist in permitting their use
  • move to amend regulatory structures to allow for innovation in legal service delivery and alternative business structures while protecting the public
  • re-evaluate current regulations and restrictions on law firm ownership and investment, as well as multi-disciplinary practice and partnership structures to ensure they are not inhibiting innovation
  • advance its initiative on the regulation of licensed paralegals to improve access to legal services
  • regularly reach out to and develop resources to support in-house counsel and government lawyers
  • continue work on Indigenous legal services by understanding where more support is needed and listen to and work with Indigenous peoples to address that need
  • re-consider the accreditation process for lawyers in British Columbia, with special consideration given to how to incorporate more skills-based training into that process

The task force was set up with the following mandate: “Recognizing that significant change in the legal profession and the delivery of legal services is expected over the next five to 10 years, the Futures Task Force will identify the anticipated changes, consider and evaluate the factors and forces driving those changes, assess the impact on the delivery of legal services to the public, by the profession and on the future regulation of the legal profession in British Columbia, and make recommendations to the Benchers on the implications of the anticipated changes and how the Law Society and the profession might respond to the anticipated changes.”

And began the recommendations by saying: “Change is constant in all aspects of our lives, and this is true in the practice of law as well. Client expectations, competition among lawyers and with other professionals, technology, generational expectations, and societal norms all affect what lawyers do and how they carry out their practice in important ways. Society’s expectations of what lawyers do and how they should do it also change. How lawyers keep up with these changes is very important for the availability of efficient and affordable legal services and for the confidence that the public has in the legal profession as a whole, and equally important for the sustainability of their practices and their personal well-being. A legal profession that is incapable of achieving outcomes that resonate with what society expects is one in which the public will eventually lose confidence. ”

Read the full recommendations here (PDF).