Monday, June 28, 2010

The ABA Gets It Right and the LSB Doesn't?

(Thanks to ABA)
Jonathan Goldsmith of the CCBE has an interesting article in the Law Society Gazette, "Some lessons for the Legal Services Board".

The gist of his piece is that the American Bar Association's 20/20 Commission on Ethics is part of a measured and open approach to discussing and opening up legal services to global competition. They are taking 3 years to analyze, sift, and formulate proposals for the ABA House of Delegates to vote on.

Goldsmith is positively rapturous at the openness of the process, its willingness to engage, its measuredness. By contrast he portrays the Legal Services Board as the new kid on the block, eager to impress, importunate even, and hasty.

Let's go behind some of the rhetoric here. The ABA has been around many years and serves a good function, but it's a second order association. It has no direct power, something Goldsmith doesn't mention until near the end of his article. You could miss it. The ABA recommends. But the ABA is conservative and the House of Delegates is not known for being radical in its decisions. So is the 20/20 commission a talking shop designed to push away awkward decisions? Probably, and I say that knowing friends on the commission are working hard. The ABA has come to this question of opening up legal services late in the day. But it's playing a slow catch up.

The LSB has not sprung up from nowhere. It's the result of almost 10 years work by regulators, anti-competition officials, consumer representatives, government reviews in the face of obfuscation by the legal profession. All of which have involved extensive consultation, including contributions from the CCBE. I've written much on this (search for Clementi, Legal Services Act, alternative business structures for more) and I won't repeat it here.

The LSB has been formally in existence from January 2010 and in that time it has achieved much, often in the face of opposition from legal profession representative bodies who have been slow to act. Did you know, for example, that the diversity officials from the Law Society and the Bar Council hadn't met until introduced to each other by the LSB? The LSB has to act and act firmly. It can't dither, which is what Goldsmith seems to want.

The LSB is, however, committed to transparency. You can find all its publications on its website. The business plan, the consultations, the research, they're all there. It has been holding regular seminars with academics, regulators, professionals and others. I know because I've attended a number.

As to research, the LSB has put together a Research Strategy Group of which I'm a member. One thing we are clear on is that all research will be published. I hope the legal profession takes this on board. As yet I'm not fully convinced it has. If we are to understand the role and structure of the legal profession and its place in access to justice, then it must welcome and collaborate in research with no areas off-limits. The LSB will play a great part in bringing this about.

So Goldsmith is disingenuous. He's overplayed the ABA and underplayed the role and activities of the LSB. The CCBE is going to have to adapt to a more globalized world that sees the legal profession as part of a wider spectrum of legal service providers.

PS. A couple of hours after I posted this I received an email from Alex Roy, the research manager at the LSB, announcing that the LSB website now has an active research section available here
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