Monday, August 16, 2010

What is the Legal Services Board For?

As I looked for images to insert in this post, my search brought up two that seemed out of kilter with my theme, but nevertheless here they are....


This Australian lawyer has been fighting a move by the Victorian Legal Services Board to remove her license to practise. In this photo she is posing for GQ magazine, just as most lawyers do...

At least this one popped up on the Legal Futures blog in reference to the LSB.

However, the real purpose of this post was to consider a negative opinion on Lawcompli.com about the value of the Legal Services Board. The introductory paragraph sets the tone:
Some may wonder what use the LSB is.  Some have called for it to kill itself off once ABS’s are introduced next year.  All must want it to prove its value as well as its value for money.  It risks adding little of value, for either the consumer or the profession. 
I fundamentally disagree with this view. First, I should declare my interest that I am a member of the LSB's Research Strategy Group.

To most observers it is clear that in the case of some professions--law, accounting, medicine, for example--self-regulation has failed. It has failed to protect clients/consumers and it has failed to open up the professions to all who wish to join. In the classic formulation the professions have ensured the continuance of protection of production of producers by producers and the protection of production by producers.

The last 30 years have intensified the call for external regulation. Now that the legal trade bodies, eg. the Law Society and the Bar Council, have had to separate off their regulatory arms (the Solicitors Regulation Authority and the Bar Standards Board), we needed a system to ensure that they carried out their regulatory responsibilities properly and in accordance with clearly defined principles.

The Legal Services Act 2007 set out those regulatory objectives and it is worth revisiting them.

They are:
  1. protecting and promoting the public interest
  2. supporting the constitutional principles of the rule of law
  3. improving access to justice
  4. protecting and promoting the interest of consumers
  5. promoting competition in the provision of services
  6. encouraging an independent, strong, diverse and effective legal profession
  7. increasing public understanding of the citizen's legal rights and duties
  8. promoting and maintaining adherence (by authorised persons) to the professional principles
While the legal profession itself promoted some of these, there were others that received a fairly lukewarm reception. This is one of the reasons why it was considered necessary for there to be an independent regulator not beholden to any legal interests to oversee the implementation of these objectives. Hence the Legal Services Board.

If we examine the current state of regulation it appears ad hoc, random, and even accidental. Take the divisions between the roles of barristers and solicitors. There is no fundamental reason for them except historical accident and a series of turf wars during the 19th and 20th centuries.

Indeed, pretty much most of the regulation is in this form. Take reserved activities:
  • the exercise of rights of audience (ie appearing as an advocate before a court)
  • the conduct of litigation (ie managing a case through its court processes)
  • reserved instrument activities (ie dealing with the transfer of land or property under specific legal provisions)
  • probate activities (ie handling probate matters for clients)
  • notarial activities (ie work governed by the Public Notaries Act 1801)
  • the administration of oaths (ie taking oaths, swearing affidavits etc).

There is no rational justification for why the list has to be composed of these activities and not others. Again, it's historical accident which has been continued.

What we haven't done yet, despite the OFT reports on the professions, the Clementi Review, and the Legal Services Act, is to undertake a rational review of the purpose of regulation. What is it for? What should be regulated? What doesn't need to be regulated? How should regulation be justified? What form should it take?

Fortunately, this is one of the tasks the Legal Services Board has taken on. Without this kind of fundamental thinking the regulatory apparatus and thinking will continue its haphazard way. And so will the kinds of views put forward by Lawcompli.com above. The Legal Services Board gives us the opportunity to stand back and frame a rational and contemporary system of regulation that will serve both consumers and producers in a complex and globalizing world.
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1 comment:

John Flood said...

A friend commented: "nice reading. Sex sells not just products but also lawyers... :-)"

Oh so true...