It may seem like an odd time to be thinking about reforming the way lawyers work, but if so much can change because of a pandemic, why shouldn’t the post-Covid era be a period of reform and progress?
This year will be the first in which the UK’s ability to compete in the global professional services market will be tested in new post-Brexit conditions, but the UK structure for legal services is as yet unchanged.
Years of tinkering with regulation were never likely to produce the kind of structure necessary to deliver the best legal services and justice system.
Last year saw a further expression of dissatisfaction in the legal services market from the Competition and Markets Authority (CMA) and the publication of the Mayson report with a compelling vision for the future. It might just be that 2021 will be the year in which we start to move to something more coherent.
It is not all gloom. Most other countries are worse than us. Believe it or not, the majority of clients are satisfied with their own lawyer and the services they receive, even if their opinion of lawyers generally is not terribly high. Lawyers are expensive but whether they are good value depends on how well you’ve chosen them.
The problems are mainly structural. The system of titles and regulation is so complicated that it contributes to the difficulty of making a wise choice of lawyer.
There are seven regulators of lawyers in England and Wales, plus a similar number of linked professional bodies plus an oversight regulator and a number of government departments and agencies such as the Ministry of Justice, the Legal Aid Agency and the CMA who also play a role.
A number of activities are “reserved” by law to regulated professionals such as litigation and preparing conveyancing documents (but not the preparation of wills).
In recent years legal regulators have been able to licence companies not owned by lawyers to provide legal services as “alternative business structures” and have even begun to permit “freelance” lawyers.
It seems likely that consumers of legal services know little of all of this and probably have little appreciation of what, if anything, it means for them.
They are unlikely to be aware of differences in mandatory insurance cover against a lawyer’s negligence, what compensation arrangements apply if their money goes missing or how the required handling of complaints may vary. For global competition, a complex and opaque structure is an even greater disadvantage.
Most people who need to find a lawyer rely on the recommendation of someone they know but that may be difficult for people whose friends and family are not in the habit of using lawyers. A recommendation may be based on a good job in a different area of law. The requirement for solicitors to publish examples of pricing on their websites has predictably not been a success. Individual circumstances are too varied and the information too complicated to be a practical way of choosing the right lawyer.
The Mayson report has proposed that professional titles, such as solicitor and barrister, should continue to be protected by law but that they should be awarded and overseen by their own professional bodies. A recognisable and quality assured title helps people choose.
The legal services market should be liberalised under the auspices of a single statutory body licensing registrants (including titled professionals) to provide particular sorts of legal services if they have the specialist expertise and secure systems for client redress.
The idea is to improve choice for consumers.
A licence would provide a basic and standard level of assurance for, say, conveyancing. It would be up to the client to choose their own balance between cost and the brand represented by the title.
In the meantime, if I were choosing a lawyer I would ask another lawyer for suggestions. Unfortunately, many people don’t know a reliable lawyer.