Some thoughts on the proposed SQE and its implications for the English law degree

I highly recommend Richard Moorhead’s blog on the recently published consultation by the Solicitors’ Regulation Authority on the  standardised competence assessment for all those seeking qualification as a solicitor in England and Wales. In this post I just want to add a few thoughts of my own to the conversation. I’m also conscious that the SRA’s work is of interest to a wider audience than the UK. Here in Australia, for example, the Law Admissions Consultative Committee is continuing to follow post-LETR developments in England closely. The Hong Kong Law Society has also proposed the introduction of a Common Entrance Exam, though the scope of the HK proposal is less radical, and debate has, for now, been paused and rolled into a wider review of legal education and training that is now underway.* In this post I intend to reflect only the possible implications of the SRA proposal for the English qualifying law degree (QLD) – not least because I want avoid anything that might appear to pre-judge the Hong Kong debate.

The SRA consultation paper starts from three possible, broad, models for a potential qualification regime (para 11):

  • Option 1: Continuing to prescribe a limited number of pathways to qualification, the details of which we specify, which are aligned to the Statement of Solicitor Competence Statement, Statement of Legal Knowledge, and Threshold Standard

  • Option 2: Rather than prescribing a limited number of pathways, authorising any training pathway developed by a training provider which enables a candidate to demonstrate they can perform the activities set out in the Statement of Solicitor Competence to the standard required in the Threshold Standard.

  • Option 3: Developing a centralised assessment of competence that all candidates are required to undertake prior to qualification, again aligned to the Statement of Solicitor Competence, Statement of Legal Knowledge and Threshold Standard.

Option 1 represents largely a continuation of the status quo; option 2, I suggest, comes closer to the base position advanced in the 2013 LETR Report, while Option 3 is the SRA’s preferred approach for reasons essentially of cost, consistency and flexibility/diversity. The paper offers some compelling arguments for its preferences, and some balanced evaluation of the options, though I felt overall that it was perhaps a little more robust in critiquing options 1 and 2 than it’s preferred option 3 – though it does also, rightly, point out that none of the options are mutually exclusive (and indeed the LETR Report could be seen as recognising the value of elements of both options 2 and 3 – the latter notably in the use of standardised clients in skills assessments).

Much of the detail (and hence the devil) of the preferred approach remains to be developed. The paper is clear that the SRA anticipates a separate two-part assessment of knowledge and skills. The modularised assessment of knowledge must be completed first, and would be assessessed via computer-based objective testing. The second part would involve standardised practical exercises akin to the standardised clinical  assessments used by medical schools and in the current Qualified Lawyer Transfer Scheme. The paper is relatively open on the question whether, and if so how much, work experience should be required before the Part 2 assessments are completed.

The proposed scope of the knowledge assessments is broad. It will encompass ethics and professional conduct, wills and probate, taxation, business law and practice, property law, torts, criminal law and evidence, criminal litigation, civil litigation, contract law, trusts and equitable wrongs, constitutional law, EU law, human rights, and the English legal system (para. 41). The assessments are to be modularised, to facilitate “integration with other education and training programmes.” There is, however, no discussion at this stage of the broader assessment framework, prerequistes and sequencing of modules, or of the frequency of assessments.

Implications for the QLD

The paper is very clear that possession of a law degree should not be a basis for any exemptions from the knowledge (or skills) requirements of the SQE. In short, if this proposal goes through, the QLD as we currently think of it is dead – at least for the solicitors’ profession.

I agree with Moorhead that, if these proposals go through, we are likely to see the creation of a more divergent education and training playing field: possibly with growing differences between traditional liberal and what Moorhead calls ‘almost practice ready’ law degrees, plus a greater variety of postgraduate and, I would add, possibly non-graduate (in structure, though potentially graduate in level) options such as apprenticeships.

The consequences of all this for the law school sector as a whole are potentially substantial, and may be very serious. They include:

Recruitment: Law has undoubtedly grown as an academic subject on the back of its professional status and recognition. Even though less than 50% (and I suspect in some post-92 law schools the proportion could be 30% or even lower) actually make it to being a solicitor, between 60%-70% appear to enter law school with solicitor/barrister ambitions. Recruitment implications of the loss of QLD status are thus both potentially significant and very hard to judge. Will regulation reshape the market for training, or will the market for training adapt as minimally as possible to the regulation? There are significant vested interests involved, including the elite law schools, and the big LPC providers who will not let a multi-million pound business simply disappear overnight. Much may depend on how the elite law firms and their ‘preferred suppliers’, the elite law schools respond to these changes, and whether they (continue to) function as a congeries of reputational interests. (The reputational risks of marginalising the law degree are not addressed in the SRA paper. In the LETR research phase, by contrast,  quite a lot was made of the reputational importance of the graduate standing of the profession in the international marketplace. Whether ‘graduateness’ without the Oxbridge or Russell group badge carries the same cachet is moot). If some form of LLB + LPC remains a significant pathway, the recruitment effects may be mitigated – at least for some parts of the sector. If it doesn’t, the future becomes infinitely more difficult to predict.

Expansion of the knowledge-base – The new knowledge base essentially represents an amalgam of the knowledge requirements of the QLD and LPC. It thus reflects the continuing influence of the reserved areas of practice and thereby excludes much of what many (especially commercial) solicitors do. For those who want to develop nearly-practice ready degrees, it might not change the game that much from the current exempting degree model. However, that assessment also depends in large part on how much current flexibility over (QLD) content is reduced by the so-far unwritten assessment framework. To expect the  academic community to vote on the options in the absence of this seems rather like asking turkeys to vote for something that may or may not be Christmas; you really would like to know first.

Doubling-up of assessment burden: those who continue to do degrees are likely to be confronted with a growing assessment burden. Under the preferred model university assessments will not count for the SQE, and it would be a radical change of policy for universities to accept entirely external assessments as part of a (concurrent) degree. Moreover, the fact that the SRA currently sees SQE assessments as both pass/fail and sitting outside the Framework for Higher Education Qualifications (FHEQ) (see paras 57-58) makes any inclusion by recognition a less, not more likely, prospect. The impact, including diversity impact, of the scale, scope, timing, frequency and cost of SQE assessments on law students specifically appears not to have been addressed at this stage.

Implications for innovation and diversity of intellectual approaches: a drift towards nearly practice ready degrees may have significant ‘unintended’ (or from the SRA’s point of view, ‘none of our concern’) consequences for academic law. Joint degrees may decline because they simply cannot address enough of the SQE ‘core’ knowledge. Unless a clear secondary market develops in SQE test preparation (a matter which in itself may have some diversity implications), universities are also likely to find themselves under some pressure to teach to the test. That is likely to (further) undermine socio-legal, theoretical or other alternative intellectual approaches to doctrinal legal analysis. (Recall that the LETR Report data highlighted the limited value professionals attached to jurisprudential or socio-legal content/ approaches.)

The anxiety has begun…

*The Hong Kong Review under the auspices of the Standing Committee on Legal Education and Training is being undertaken by a panel comprising Justice KH Woo, Professor ATH (Tony) Smith and myself.

 

The ‘voluntary regulation’ of unregulated paralegals moves closer in England and Wales

Although the LETR was able to undertake only a very limited investigation of unregulated legal services, the Report was able to demonstrate that unregulated providers appeared to be delivering a significant proportion of personal legal services and even some work for corporate clients in specialist areas like employment law, all with very little regulation or external assurance of the quality of services. It was also clear that more research into the unregulated sector was required. Consequently we recommended that:

Recommendation 23
‘Consideration should be given by the Legal Services Board and representative bodies to the role of voluntary quality schemes in assuring the standards of independent paralegal providers outside the existing scheme of regulation. The Legal Services Board may wish to consider this issue as part of its work on the reservation and regulation of general legal advice.’

However, it was also apparent that the existing regulators had very little appetite for this. It was of course largely outside the remit of the frontline regulators, and possibly a step too far for an LSB being challenged over alleged mission creep, and dealing with a government that was already considered suspicious of extending legal services regulation any further. Consequently, I was pleased to discover last year that there was a real interest amongst membership bodies in the unregulated sector in taking this agenda forward. Over the past 18 months, the National Association of Licensed Paralegals (NALP), and the Institute of Paralegals (IoP) have been working in consultation with other stakeholders to develop a single voluntary register for the paralegal sector. This has now officially gone live at ppr.org.uk

The Register is intended to operate as a not-for-profit service. Members of participating membership bodies will be passported onto the Professional Paralegal Register (PPR). At present there are three eligible bodies –

  • NALP
  • IoP
  • Institute of Professional Willwriters (IPW)

The rationale is, of course that registration will provide mutual benefits for individual paralegals and consumers. Consumers get some degree of protection and quality assurance. Paralegals will be registered on one of four tiers or levels of membership, based on qualifications and experience. They must also carry PII cover, abide by a code of conduct, and agree to submit to the disciplinary jurisdiction of the PPR which will have powers to sanction members including awards of compensation, return of fees, suspension and removal from the Register. Paralegals, in turn, get the reputational benefit of registered status and the ability to ‘advertise’ their work, including specialisation and contact details to both prospective employers and  consumers through the PPR website .

It will be interesting to see if this approach succeeds. It does assume that registration will provide sufficient visibility and incentives for both consumers and paralegal practitioners to make use of it. This may not be straightforwardly the case; we have fairly limited understanding of how consumers currently access unregulated providers.The numbers of paralegals so far registered is quite small, and the first test will be to see how widespread take-up is. From a research point of view it will also be interesting to get a sense of who is registering and the range of work in which they claim specialisation.

Declaration of interest: the author (Julian Webb) is a Patron of the PPR

Implementing the LETR

I was sorry to miss the latest Westminster Legal Policy Forum (WLPF) event in London on 5 November, but unfortunately I was otherwise occupied in the southern hemisphere. The event was timely, given that the SRA has recently published its consultation on its draft competences and the BSB have also just given us some further detail of their training strategy (though still not a lot – HT here to Steven Vaughan’s recent guest blog on Richard Moorhead’s Lawyer Watch).

The WLPF summarised the event as follows:

Sessions brought together key stakeholders working across the current legal education and training framework – including colleges, universities, careers advisory services, vocational training providers and regulators – alongside law firms, chambers and wider legal employers. Delegates had particular opportunity to consider the prospects for developing new qualification pathways and access routes to legal professions, as well as possible changes to competency frameworks and Continuing Professional Development. Sessions also focused on current proposals to streamline regulatory involvement in education and training processes, and the challenges ahead for a revised framework in supporting both innovation and standards.

The work of the LETR research team is, of course, long-finished, but it was good to see that my colleague on the team Professor Avrom Sherr was invited to open the event and did so, in his own words, by going provocatively “off message”, not least on the challenge to the representative bodies to maintain their relevance after the Legal Services Act; on the tendency of the LETR to be about “regulation, regulation, regulation” rather than “education, education, education”, and on the potential boringness of the SRA’s competence statement. This all bodes rather well for our joint Upjohn Lecture in January 2015!

I have storified all the tweets I could track from the WLPF event here (in reverse chronology):

Reforming solicitors’ CPD

At its meeting on 21 May the Solicitors Regulation Authority (SRA) Board approved the move by the SRA to implement a new system of ‘continuing competence’ to replace the current, and largely discredited, input-led CPD scheme for solicitors in England and Wales. The decision remains subject to approval by the Legal Services Board, but if approved (as seems likely) the new ‘scheme’ will be phased in from Spring 2015, for early adopters, coming fully into force in November 2016.

The changes follow-on from a consultation document published in February which spelt out three optionsfor CPD:

 Option 1, the SRA’s preferred option, which would  revoke the current CPD scheme and rely instead on existing conduct of business regulation, requiring a proper standard of legal work and of training and supervision. Option one would be supported by non-mandatory guidance;

Option 2, would replace the current CPD scheme with a new cyclical/outputs based framework, imposing a requirement to reflect on practice and implement a development plan without a mandatory hours requirement; and

Option 3, would retain the current requirement to do a minimum number of CPD hours, and would require the training to relate to current or anticipated legal practice and recognise a wider range of development activity.

The consultation on these options received 64 responses in total – unsurprising, perhaps, but still depressingly low given the scale and significance of the changes being proposed. Understandably the SRA did not therefore attach a great deal of weight to the numbers in its response to the consultation, instead addressing the responses more qualitatively. Nonetheless it is interesting, if somewhat unsurprising (again) that the majority, 33, including the Law Society,  opted for Option 3 (13 expressed no preference for any of the options). This was, of course, the most familiar and conservative alternative given, and the one least consistent with best practice highlighted by the LETR Report! The SRA has nonetheless opted for its original preference, Option 1, on the basis that it focuses on the effectiveness of training, gives individuals—and firms—more flexibility and choice in selecting appropriate training, and reduces the burden of regulation. The changes will also mean that training providers will no longer require authorisation from the SRA.

 So has the SRA got it right? If it was to drag CPD into the 21st century, it had to choose Option 1 or 2, and to that extent should be applauded. Option 3 in that sense always struck me as a hostage to fortune for the SRA, unless it was going to ignore both what came out of the LETR Report (see paras 2.147-2.166, 6.72-6.95) and the LSB’s statutory guidance.

But equally there are significant risks with Option 1, given the extent to which it deregulates CPD. In this regard it comes close to the system developed in Alberta, Canada, and it is notable that, for all its strengths, that scheme has run into some challenges in making  individuals properly accountable for completing their CPD. Option 1, more than Option 2, begs the question always begged by heavy reliance on what is essentially principles-based regulation, namely: how do you enforce a culture change where there are no clear rules? The SRA in its response has recognised that there will need to be a significant culture change, and has therefore proposed a substantial transition period from Feb 2015 to Nov. 2016 to facilitate that. But this still means that the SRA is relying predominantly on the guidance it will produce, and that of course will be, by definition, non-mandatory, so the question still remains. Moreover, if the SRA is to rely ultimately on the broad obligations to deliver an acceptable quality of work/training, as the Legal Services Consumer Panel’s response noted, it will be interesting to see how it plans to go about identifying a lack of quality such as to trigger monitoring or enforcement action. The link between quality and CPD is not straightforward; if the SRA gets this wrong it may well increase rather than reduce the likelihood that some system of professional re-accreditation will be required sooner rather than later.

More generally, given the statutory responsibilities on the SRA, I also think it is unfortunate that there has been so little analysis of how the proposed changes achieve the Legal Services Act regulatory objectives. For example, how differently does each option support the public and consumer interests? The risk that regulatory intervention relating to CPD may not go far enough in protecting the public interest has already been highlighted, but it could as easily go further than required. How does it contribute to the development of a strong, independent, effective and diverse profession?  In the latter context in particular, the LETR Report highlighted needs for continuing ethics, management skills and diversity training (Rec. 9) – do these become non-mandatory under Option 1. If so is that consistent with the objective? How much Option 1 relative to Option 2 reduces the regulatory burden for firms, rather than for the SRA, may also be moot.

Ultimately, though, the key question is, will it make a significant difference to the kind of learning that takes place, and to the extent to which practitioners are enabled to catch their breath and actually reflect on what they are doing? For the answer to that we must wait with baited breath (or maybe not…); the evidence certainly suggests the potential is there, though option 1 again raises the stakes by placing a premium on firm culture in a way that few systems have attempted to date.

.

Regulators behaving badly?

Warning: approx. 2500 word post!

Following the BBC Scotland Lawyers behaving badly programme I thought I would have a look at what the Scottish disciplinary tribunal, the SSDT, had actually been deciding in its dishonesty cases. These are an important group of cases. Dishonesty is at the top of the misconduct pyramid, so robust handling of dishonesty matters both for public protection, and to protect the reputation of the profession. Before looking at the cases its worth making a couple of preliminary points. As we saw in the last post, straightforward dishonesty will normally merit the highest sanction of striking off – removal from the Roll of solicitors, but dishonesty can cover a fairly broad spectrum of acts, including embezzlement, forging signatures on documents (whether for financial gain or to cover up administrative mistakes or incompetence), misleading clients, and misleading the court, another lawyer or a non-client, whether at the behest of your client or otherwise. There may be degrees of culpability and specific circumstances may offer an element of mitigation. Dishonesty will also often be mixed up with other disciplinary failures, such as technical breaches of accounting rules. In short there may be a range of factors to take into account in assessing the appropriate outcome, and the tribunal has an element of discretion. We would not expect a 100% strike off rate, even for dishonesty.

The reported decisions are also, of course, only part of the story. These are the cases that are prosecuted successfully. We don’t know how many prosecutions are dismissed and on what grounds because those decision are not reported. We don’t know much about how regulators exercise their discretion to prosecute. There are various ways of dealing with possible dishonesty. Even if there is putative evidence of dishonesty, a case may not, eg, for evidential or public interest reasons, be pursued as one of dishonesty. By taking the case out of the dishonesty category, this effectively (though sometimes only marginally) reduces the seriousness of the misconduct, and opens up a greater range of disposal options to the tribunal. Something like this appears to have happened in O’Donnell (2009), where a taking of money without the client’s consent was characterised as “borrowing”. This in our view saved the respondent from a likely suspension (at the very least). I have not surveyed the entire SSDT database to look for cases where the conduct disclosed possible dishonesty in fact, but the case was not disposed of as a dishonesty case.

A final warning: the relative brevity with which the tribunal’s reasoning is often reported makes interpreting and applying these decisions more of an art than a science. This may add to the scope for reasonable disagreement.

The two cases on which the BBC focused were O’Donnell and Murray – neither is a straightforward dishonesty case, and this is part of what makes them both interesting and problematic. Each involved multiple hearings dealing with a range of misconduct.The first hearing in O’Donnell in 2008 clearly did not involve dishonesty, and culpability was reduced by what the tribunal accepted to be clear evidence of clinical depression. In the 2010 hearing the ‘borrowing’ of £60,000 from a client was, as noted, not treated as dishonesty, and the tribunal regarded the lack of complaint from the client, the fact that there was ultimately no financial loss to the client and the respondent’s continuing ill health as mitigation. Murray is factually quite tangled. Nonetheless, there appear to be two clear findings that Murray misled clients. This is dishonesty, which in my opinion would have merited striking off, or a suspension if he was lucky, in the first proceedings in 2004/05. The decisions to censure on this occasion, and subsequently to suspend rather than strike off for a further act of deception are thus somewhat surprising. But are they out of line with SSDT practice? This is where the cases analysis comes in.

The SSDT website identifies 44 decisions since 1995 in which dishonesty was proven or admitted. In 33 of those cases the respondent solicitor was struck off, leaving 11 instances (25%) in which lesser penalties were imposed, ranging from censure and fining to suspension. 25% seems a rather high level of exceptional cases, so it is worth looking at those in more detail. In four of them lengthy suspensions, of five years or more, were imposed. Suspension of such duration certainly suggests the tribunal treated the misconduct in these cases as very serious; in practice, lengthy periods of suspension may kill a solicitor’s career as effectively as a strike off. This leaves seven cases where more minor penalties were applied: Cohen (2009), Hay (2009), Donald (2008), Sheppard (2008), Kirk (2007), Malcolm (2005), and Young (2002).[i]  In two of these, Sheppard and Kirk, the solicitors’ names had already been removed from the Roll, thereby limiting the penalties available to the tribunal. Consequently there were only five cases across a 12 year period in which dishonesty was proven and strike off or suspension was clearly considered excessive by the tribunal. Four of these involved misrepresentations in which there was no element of theft or other financial impropriety by the respondent, though one, Malcolm (2005), did involve substantially misleading the client. This case, and the last, Cohen (2009) (which involved an attempted expropriation by the respondent of around £3,000 in unclaimed tenants’ deposits which had been sitting in various trust accounts for about 20 years) are, on my reading, both cases where the respondent may have been lucky to escape a period of suspension. So, aside from Murray and O’Donnell, neither of which formed part of the SSDT’s dishonesty dataset, there are two out of 44 cases where (in my judgment, FWIW) the penalty seems on the lenient side relative to current norms.

This doesn’t of course mean that everything is necessarily hunky dory in the world of professional discipline. A growing body of academic work on lawyer deviance has highlighted a number of common concerns across a range of jurisdictions.

Firstly, traditional discipline systems seem to create disincentives to complain/inflict relatively high rates of attrition on client complaints. There is some evidence that separating responsibility for complaints from the representative body has generally increased both the number of initial client complaints, and the number that make it to disciplinary tribunals (see the data summarised by Rick Abel, Lawyers in the Dock, Oxford, 2008, 503-5). The creation in 2008 of the Scottish Legal Complaints Commission (SLCC) as a single gateway for complainants has certainly given the Scottish system an element of independence. Complaints about unsatisfactory service are dealt with by the SLCC separately from the Law Society of Scotland, but that still leaves the Law Society responsible for professional misconduct investigations, whereas in England and Wales that function is now undertaken by the SRA. To that extent, then, there is a greater degree of formal independence in England and Wales. How much difference that actually makes is moot, and we are not going to find the answer by looking at tribunal decisions: we would need to know much more about how investigations are conducted and the ways in which decisions to prosecute are made.

Secondly, there is some concern that prosecutors tend to focus on what are called ‘high reward/low risk’ cases for the regulator, ie, cases that involve demonstrable reputational harm – dishonesty, deceit, mishandling of client accounts – or a history of disciplinary infringements/lack of governability (eg failures to communicate with or cooperate with the regulators). The lack of risk in pursuing such cases may be increased by a tendency also to target lower status or marginal practitioners – particularly solo and small firm practitioners. Cases involving powerful actors or more morally ambiguous behaviour appear correspondingly less likely to be prosecuted (see, eg, Leslie Levin, ‘The ethical world of solo and small firm practitioners’ (2004) 41 Houston Law Review 309; Alice Woolley, ‘Regulation in practice: The ‘ethical economy’ of lawyer regulation in Canada and a case study in lawyer deviance’ (2012) 15 Legal Ethics 241. Note also the ongoing independent case review being undertaken for the SRA by Professor Gus John to examine evidence of disproportionality and discrimination in the disciplinary process – http://www.sra.org.uk/sra/equality-diversity/reports/independent-comparative-case-review.page). The Scottish dishonesty cases certainly fit that pattern with a preponderance of small firm and sole practitioners among the ranks of those prosecuted.[ii] That said, arguments about disproportionality should not detract from the fact that, as Rick Abel pithily concludes: “the harms… of solo and small firm practitioners are real – and the victims are even more disadvantaged and vulnerable than the perpetrators” (Lawyers in the Dock, p.506).  At the same time, who complains and why, and who is prosecuted and why, remain interesting, and potentially morally loaded questions that have been under-researched.

Thirdly, comparative work also points to a tendency among tribunals to hand out relatively light ‘symbolic’ sanctions, particularly for first offences.This may be seen by the tribunals as justifiable because the majority of lawyers do not actually re-offend. O’Donnell (2008) might be looked at as just such a case of symbolic sanctioning; there was no dishonesty involved; there was evidence of ill health in mitigation, and the respondent had taken steps to address his problems, though even so, by English standards, a fine of £500 would be exceptionally low. The continuing leniency in the second hearing (2010) seems harder to justify. It has been argued that a more aggressive approach than has been the norm may be needed in dealing with repeat and recalcitrant offenders if the public protection objectives of the discipline system are to be properly met (Leslie Levin, ‘Misbehaving lawyers: Cross-country comparisons’ (2012) 15 Legal Ethics 357).

Dishonesty cases tend not to fit that pattern because of their perceived seriousness. A dishonesty offence is still most likely to receive a suspension or strike off, even if it is a first offence. A number of the Scottish dishonesty cases nevertheless appear to raise interesting questions in this light about prosecution policy and the ways in which the Law Society of Scotland has assessed risk in the past (with the caveat that this analysis is based purely on the reported disciplinary tribunal findings which tend not, of course, give a full picture of the circumstances behind each). In a number of these cases there are early and continuing warning signs, often of poor accounting and case/risk management practices which can be a signifier of more serious trouble ahead, especially for smaller firms. In Kay (2013) an inspection of his practice reported that there had been no proper accounts for at least the previous three years. He had also consistently failed to respond to Law Society correspondence and statutory notices between 2007 and 2009; had not responded to correspondence to Master Policy insurers, and failed to pay his insurance excess on a professional negligence claim that had been brought against him. In Ruark (2012) the respondent had been subjected to frequent inspections between 2004-07 which highlighted continuing failures to complete and record property transactions and their financing in the proper form. Ruark and Kay were ultimately struck off, but there were signs of significant problems as early as 2004; in addition to other failures already noted, Kay also had two findings of inadequate professional services made against him in 2008 and 2009 and, it appears, had not paid the compensation ordered on each occasion. These cases may be outliers, but why did it take the Law Society so long to initiate the final and decisive intervention?[iii]

The extent to which and robustness with which a prosecutor can appeal seemingly lenient tribunal decisions can act as an important corrective to outlier decisions, and may also provide the tribunal with judicial guidance on the exercise of its powers. One question worth speculating on is whether an independent regulator might be more robust in its role as prosecutor when it comes to appealing lenient outcomes. There is certainly some feeling in England and Wales in the wake of the Spence (2012, unreported) and  SRA v Davidson [2012] appeals that the SRA has become more willing to challenge SDT ‘failures’ to strike off through the courts.

Finally, there are also debates about the extent to which regulatory systems should continue to separate discipline from redress and rehabilitation. Even though tribunals see their jurisdiction at least partly in terms of public protection, this does not always extend to awarding compensation or restitution to clients for inconvenience, financial loss or other harm suffered, or to requiring lawyers to undertake rehabilitation through appropriate retraining or (eg) compulsory drug/alcohol programmes. Training or other rehabilitative orders are not an option under either the Scottish or English legislation. Similarly the tribunal In England and Wales cannot order compensation, however, in Scotland it now can, though the financial limit is relatively low (£5000 maximum). It is notable that the use of compensatory powers in the larger Australian jurisdictions has become widespread (see Linda Haller, ‘Professional discipline for incompetent lawyers? Developments in the UK and Australia’ (2010) 17 International Journal of the Legal Profession 83). It will be interesting to see how the practice develops through the SSDT in Scotland,

So what’s my conclusion? From this somewhat cursory analysis the Scottish discipline system, in its treatment of dishonesty cases, seems to share many of the strengths and weaknesses seen across other systems in the Common Law world. It does not appear that outcomes in dishonesty cases are radically out of line, though there are certainly some decisions that raise questions of principle. The number of arguably ‘lenient’ decisions, proportionately, does not seem excessive to me (I’d be interested in other’s views on that) but the time taken to initiate disciplinary proceedings in a number of cases ought, from a public protection perspective, be a matter of some concern. Does that mean the Scottish regulatory system can disregard calls for a more independent regulatory structure? If I was a serious critic of this (or any other) system, I wouldn’t make my argument by looking (just) at alleged failings at the most serious end of the continuum. The regulator’s robustness in prosecuting and appealing decisions; the resource it commits to investigation and risk management, and how the system deals with more ‘routine’ misconduct may provide far more telling indicators of its actual independence than its approach to what should be the most egregious of cases.


[i] I have excluded Miller and Morrison (2005) from this subset as Morrison was censured for her inadequate supervision of Miller, not for dishonesty. Miller, an assistant solicitor, was struck off.

[ii] The respondents in the Scottish dishonesty cases also fit the pattern seen in other studies of lawyer deviance in that they tend to be older practitioners and disproportionately male (only 4 out of the 45 respondents are female).

[iii] Though in Ruark’s case the disciplinary process would have been somewhat delayed while criminal proceedings were under consideration.

ABA Legal Education Task Force publishes draft report

The American Bar Association’s draft report and recommendations on the Future of Legal Education was published on Friday 20 September. The full text of the report can be accessed here.

In a number of obvious ways this is no LETR report. It is not explicitly research-based (though the ABA has held hearings and invited evidence), it takes up less than 40 pages, and has taken only a year to produce. Nonetheless there are some interesting simlarities.

The report opens with a familiar story. It recognises that the US system of legal education “faces considerable pressure” over costs, student debt, declining application levels and “possibly structural” changes in the number and kinds of jobs available for law graduates. It also prefaces its recommendations with a recognition that the core problems are structural, and not amenable to quick fixes. Rather like the LETR report it too acknowledges the challenge, given the contested terrain of legal education, of presenting recommendations that would have “a reasonable chance of influencing action”, and capable of creating a framework for “continuous adaptation and improvement”.

The main problems identified by the report can be summarised very simply: US law schools are too expensive, too alike and too remote from the needs of practice. The medicine prescribed by the Task Force includes:

  • systematic reform of law school pricing and financing
  • a greater focus on defining and delivering professional competencies, both at law school and subsequently
  • the development and delivery of new systems of training and licensing those with limited practice rights, rather than focusing so much on the production of “professional generalists”
  • Greater support and incentives for innovation and experimentation in the delivery of legal education, eg, by reducing regulatory barriers to experimentation
  • the need for all stakeholders to support “an enterprise or program for the continual assessment of conditions affecting legal education and of the strengths and weaknesses of the then-current structures in legal education, and for fostering continual improvement in the system of legal education”.

The greatest disappointment to many is likely to be that the Task Force has, perhaps not surprisingly, sidestepped the issues of cost and funding, arguing that the time allotted was insufficient to the task. It has thus recommended that a further task force or commission be appointed, with the expertise to pick up this task.

Beyond this, a number of similarities to the LETR approach are quite striking. The Task Force has also focused on general principles, rather than risk getting lost in regulatory detail, and has largely come out against greater prescription. It calls for some re-regulation and de-regulation where necessary or possible, but most of its proposals are non-mandatory and rely on the use of incentives, facilitation and coordination techniques. Beyond that there are three particular common themes I think it is useful to highlight:

  • First, there is the drive to define competencies. The Task Force has possibly gone (even) further than the LETR in saying to law schools, you can build your own curriculum inside the competencies required. But this is accompanied by a very clear indication that law schools need to do much more to re-align the balance in the JD between academic law and what the Task Force calls “focused preparation for the delivery of legal services”. In both England and Wales and the US the devil here will lie in the detail of the competences chosen.
  • Secondly, the Task Force report notes the wide range of initiatives being undertaken in response to the current challenges facing law schools, but also highlights the fragmented and uncoordinated nature of responses, and the absence of “a full understanding of the tools available to effect change, mechanisms for assessment of progress, and a strategy for long-term continuous improvement”. This is also all too familiar (though it may be arguable that the sense of crisis in the US has driven innovation to an extent that we have not (yet) experienced in the UK). What I think is critical here is to recognise that the Task Force and the LETR Report have both highlighted the importance of creating a formal coordination and evaluation mechanism – LETRs Legal Education Council and (virtual) Legal Ed Lab, and the Task Force’s  call to establish a “Center or other framework” to support, assess and evaluate improvements in the legal education system. My personal concern is that this proposal is in danger of being overlooked in the deliberations that have so far followed publication of the LETR Report. If such an outcome is achieved in the US, and not in England and Wales, then a very considerable opportunity will have been lost to UK legal education.
  • Thirdly the Task Force report also acknowledges the need to enhance access to justice for lower income consumers. It therefore proposes that non-lawyers be permitted to perform “limited legal services,” and that bar admission might also be opened up to individuals who have not completed an undergraduate degree and law school. This again has significant echoes of the liberalisation measures proposed by LETR, though it is not clear whether the US report countenances a return to a full apprenticeship model such as is being developed in England and Wales.

Responses to the Task Force’s draft are invited. The report should be finalised in November and presented to the ABA’s policy-setting body, the House of Delegates, early in 2014.

Legal services regulation review: The battle lines are being drawn

The consultation period on the government’s review of legal services regulation in England and Wales, announced in June, closed on 2nd September. A small but important group of institutional respondents – the Law Society, the Solicitors Regulation Authority (SRA), the Council of Licensed Conveyancers (CLC), the Legal Services Consumer Panel and Legal Services Board (LSB) – have subsequently published their responses to the MoJ’s call for evidence. A brief survey of these responses provides an interesting insight into the range of positions being adopted and arguments being deployed by the institutional players in this particular game.

As might be expected given the ‘previous’ between these two institutions, the Law Society and the SRA are continuing their public sparring match. The Law Society’s proposals seek to wind back the clock, not entirely to a pre-Clementi position, but pretty close, arguing that :

  •  the Society should have direct responsibility for training, authorisation to practise and standard setting;
  • it is better placed to create regulatory arrangements that are flexible and take account of the realities of different types of practice, and
  • investigation and prosecution of offences should be “undertaken at arms’ length” by a body that is part of the Law Society with independent decision making powers, but reporting directly to the Society.

The Law Society also calls, unsurprisingly, for the Legal Services Board to be slimmed-down in both form and function, and seeks the complete abolition of the Legal Services Consumer Panel, arguing instead that the professions should be responsible for creating governance mechanisms that incorporate the need for the consumer voice.

The SRA takes a markedly different tack. Whilst acknowledging that the Clementi reforms are still a work in progress, the SRA asserts that the proposed review is “timely” in that it is already apparent that the complexity of the regulatory regime is hampering regulators’ ability to meet the Legal Services Act’s (LSA) regulatory objectives. The body of the SRA’s paper then focuses on five ways in which the function of the regulatory regime is said to be sub-optimal. These are summarised in para 3.2 as:

    • inflexibility and over-prescription – in a rapidly evolving legal services market, too many requirements are specified to a significant level of detail in primary legislation hampering regulators’ ability to meet the regulatory objectives and the principles of better regulation;
    • complexity of primary legislation – the SRA has to operate under three major pieces of primary legislation; the Solicitors Act 1974; the Administration of Justice Act 1985 and the LSA. The other approved regulators also work under a multiplicity of legislation.
    • inadequate and irrational foundations for regulation – the whole of legal services regulation is founded on the regulation of six “reserved” activities which have accumulated in a piecemeal fashion and have never been the subject of an objective, evidence based, review;
    • the multiplicity of regulators – largely based around the historic regulation of titles (albeit in some cases with titles relating to distinct functions – for example licensed conveyancers) – which creates fragmentation of regulation across the legal services market and the need for rules to manage the boundaries of the various regulators. Not only are there eight approved regulators, there is also a layering of regulation with the LSB sitting above all of them. These features add to both complexity and cost.
    • regulation is not fully independent – the LSA made regulation more independent from the representative functions of the professions. However, this does not amount to full independence and, for as long as regulatory bodies remain part of strong representative organisations, there will be additional cost and a lack of flexibility within the system. In terms of cost, for as long as the current arrangements remain, the presence of the LSB will be essential in order to ensure compliance with the internal governance arrangements which enable independent regulation, and to deliver some degree of co-ordination between the regulators whose fields of regulation increasingly overlap. In addition the cost burden on the market is also inflated by s.51 LSA, which enables defined but extensive representative activities of approved regulators to be funded through the compulsory levying of practice fees.

The SRA’s remedies are the creation of a single statutory framework for entity regulation across the legal services market, including the abolition of a separate statutory scheme for ABSs; the extension of regulation to all legal activities as currently defined in s.12 LSA (in other words bringing currently ‘unregulated’ services like employment advice and will-writing within the reach of regulation), and, doubtless with a particular nod to the Law Society, a call for frontline regulators to be given complete structural as well as operational independence from the representative bodies. It does stop short of calling for a single regulator for the sector, while acknowledging that the growing (LSB-supported) focus on entity regulation was making the problem of having multiple legal regulators “more acute”.

The Legal Services Consumer Panel, however, suffers from no such reticence in its preference for what Legal Futures (Sept 2) has called the “nuclear option” of a single regulator. As we have come to expect, the Panel’s evidence does not mince words when it concludes (para 9.1):

Four years of evidence of the consumer experience has demonstrated to the Panel that the existing regulatory framework does not provide a sustainable model in the long term to offer consumers the best system of consumer protection or support a competitive market place. Consumers have to find their way around a labyrinthine maze; the scope of regulation is not based on any consumer protection rationale; there are gaps and overlaps in redress; there is considerable duplication in regulatory structures that consumers ultimately pay for; regulation is not sufficiently independent of the profession; and there are serious doubts about the capacity and capability of the smaller regulators to do a good job

The Panel’s advice? In effect, it calls on the MoJ to do a proper job of gathering the evidence and exploring the costs and benefits of the options, but with a view to tearing up the LSA and starting again with a more consumer-focused approach. The Panel does not anticipate nor spell out in considerable detail what this might look like, but it does highlight a number of themes. Most of these chime, to a degree, with the issues raised by the SRA: the need to assure proper regulatory independence from the professions, to re-visit the range of legal activities subject to regulation, including mapping out and assessing risk across the unregulated sector,  and to achieve a better balance between entity and individual regulation.

In the only response to be published so far by one of the smaller regulators, the Council for Licensed Conveyancers has also picked up on a number of these themes calling, longer term, for a review of the scope of regulated legal activities, completion of the separation of representative and regulatory functions and (interestingly) reform of compensation arrangements to improve consumer protection. For the time being, however, the CLC does not want much change. It specifically rules out a single regulator model for now, arguing that there is a role for multiple regulators to continue developing a range of approaches to regulation that will support specialisation and innovation in the marketplace.

In its response, published today, the Legal Services Board has also offered its support for the longer term option of a single regulator, adding, crucially, that such should be “unrelated to any existing regulator, including the LSB.” In the short term it is also highly critical of the continuing preponderance of ‘one-size-fits-all’ regulation and calls for existing regulators to do more to develop risk-based models and otherwise re-regulate the market, removing rules which cannot be justified on a risk basis. Its response also calls for wider consumer access to the Legal Ombudsman and new powers for the Office for Legal Complaints to develop its services.

So what does this small cross-section of responses tell us? First off, there is a fair degree of unanimity about one thing: the compromises enacted in the LSA regime have left virtually no-one satisfied. The CLC’s is the only published response so far that wants to retain something close to the status quo. This is not entirely surprising. The smaller regulated occupations have arguably benefitted disproportionately from the changes, gaining a mandate for (quasi) self-regulation, and with it the opportunity to use regulation to achieve a degree of occupational closure that they would have struggled to achieve otherwise. This of course also highlights another issue: the extent to which self-interest drives these kinds of institutional responses: the SRA’s calls for structural independence and the extension of regulation to all legal activities are thus somewhat predictable for an ambitious regulatory body, though such an extension of legal activities seems to fly against the liberalising ethos of the LSA. I suspect it will not find favour with a Lord Chancellor whose instincts are fundamentally deregulatory. The LSB’s proposals may in this regard be closer to the mark. They propose making all legal activities subject to a baseline comprising access to an Ombudsman or other dispute resolution mechanism,  supported by some enhanced consumer protection laws. They would only deploy a risk based model of regulation over and above this in respect of activities for which there are substantive public /consumer interest grounds for doing so.

I actually suspect that Lord Chancellor Grayling’s instinctive preference would be for a greater return to self-regulation, contrary to the views of the CLC, SRA, LSB and the Consumer Panel. Although it was the Thatcher government that took the first swipe at professional self-regulation, Tory governments (which this one seems to be in almost everything but name) are ultimately not renowned for favouring consumer over business interests, but would Grayling go as far as the Law Society (and one suspects the Bar Council, though the latter is likely to be less critical of its regulatory arm) would like?

I hope not. It is difficult not to see a return to the old ways as a retrograde step. Will market innovation be enhanced with (for example) the Law Society and Bar Council in charge of licensing ABSs? I don’t know, but, as data from the LETR indicated, there appears to be a strong undercurrent of hostility to new business structures among the grassroots of the profession. How would the representative bodies deal with that to re-assure external investors? It also takes a very short memory and a generous pinch of salt to take seriously the Law Society’s claim that “there is no evidence to suggest professional bodies cannot take decisions in the public interest about standards and qualification.” That’s true so long as we overlook the whole sorry story of the OSS (which the Society seemingly wishes to re-introduce in another guise), the Training Framework Review, which took seven years to achieve very little, and the history of underfunding and neglect of effective CPD regulation. I am sure the Law Society has learned some lessons from the past, but more evidence and less hubris might have made its claims more credible.

Some might say that it also takes a particular kind of legal mind-set to argue that professional self-regulation equates to independent regulation, and to conflate independence with non-accountability, but that’s a story for another post.