An unfair divide?
Date: 03 December 2010
Authors: Jon Robins
Issue: Vol 160, Issue 7444
Categories: Opinion, Legal services, Profession
Some 80% of the work undertaken by law firms falls within the category of “non-reserved” legal work...in other words, anyone (not just lawyers) can do it.
The figure was arrived at by Professor Stephen Mayson, the legal academic who came up with the memorable and equally alarming finding that as many as 3,000 law firms could go to the wall as a result of the reforms flowing from the Legal Services Act 2007.
More questions than answers?
Well, the following questions spring to mind: Despite all the fuss in the legal press, what’s the point in new market entrants becoming alternative business structures next October if most of their business doesn’t actually need to be regulated? What’s the point in employing lawyers to do the kind of work which non-lawyers can do and, frankly, what’s the point in becoming a lawyer at all?
This is the first in a series of three articles looking at the six reserved legal activities found under the Legal Services Act 2007 and, more importantly, considering the vast tracts of non-reserved legal territory as we approach the post-LSA land grab.
Foundations
Professor Mayson, in a paper published over the summer, identified the reserving of legal activity as “a fundamental pillar of the Legal Services Act”; however he went on to express “surprise and concern” that the structure was built on “tenuous foundations”. The reasons for reserved activities are historic, often the result of horse-trading between profession and politicians, and arbitrary. This haphazard “structure” co-exists with other areas of legal activity separately regulated under statute and those which fall within the regulatory net by virtue of the person carrying them happening to be regulated.
So what does it mean that so much legal work can be done by non-lawyers? Prof Mayson puts it starkly. “Many lawyers don’t realise the extent of the challenge they could be facing in the future from someone with a different mindset who disaggregates the entire process behind transactions with an eye to where qualified input is required and where it’s not.”
The academic started looking at the origins of reserved legal work because of the present concerns over unregulated will-writing. That the two mainstays of high street practice—will-writing and conveyancing—are treated differently speaks volumes about the random approach to regulation. Charles Plant, chair of the Solicitors Regulation Authority board, last month dismissed as “nonsense” the definition of reserved legal activities citing will-writing as a prime example. He argues for consumer protections to be extended to “all ‘solicitor activities’ offered by ABSs”.
The wonderfully-titled Society of Gentleman Practisers (a precursor to the Law Society) won a monopoly on conveyancing in 1760 as a quid pro quo for the government imposition of taxes on articles and practising certificates. No such deal was struck on will-writing probably because, as Mayson notes, there wasn’t the money in it.
It must be uncomfortable from a regulator’s perspective that so much of what consumers consider “legal services” falls outside the “reserved activities”. “We take the framework that we’re given by Parliament,” replies Crispin Passmore, strategy director at the Legal Services Board. “The real question is not should lots of services fall outside of ‘reservation to lawyers’ but should those legal services be regulated to protect consumers? That question is open.” Where there’s an issue, he adds “we’ll tackle it one way or another”.
Is will-writing “an issue”? The Legal Services Consumer Panel is currently conducting research into whether will-writing should become a regulated activity. “The first question is what’s actually going wrong?” begins Passmore. “What’s the problem that we’re trying to fix?” There are “all sorts of potential problems”, he says, including not enough people making a will and, those that do, being over-charged and not just those flagged up by lawyers such as concerns about pressure selling and badly-drafted wills. “Then we need to decide if regulation is the right answer,” Passmore continues. “Just because solicitors are dealing with a certain area of legal services doesn’t mean we need to reserve all legal advice to them. It’s heavy-handed and I don’t see the evidence for it.” From the perspective of non-qualified lawyers all this talk of what’s reserved and what’s not smacks of protectionism.
Rise of the paralegal
James O’Connell, chief executive of the Institute, predicts that “within a decade most fee earners in law firms will be paralegals. Plus, there about 6,000 paralegal law firms created in the last 12 years—compared to the four and a half centuries it took for 10,300 solicitors firms”. We are in what he calls the “‘post-legal profession’ legal services world”. See 159 NLJ 7387, p 1339.
O’Connell (a solicitor) characterises the division between reserved and non-reserved legal activity as going from “the completely legitimate” (probate and conveyancing) to “the utterly disgraceful”, namely restrictions to rights of audience which he objects to “on moral grounds”. “There are huge numbers of people being denied access to justice because they cannot afford a solicitor or barrister. All the consumer protection arguments fall by the wayside if those protections are set so high that they effectively lock the consumer out.”
Jon Robins is a freelance journalist & co-author of The Justice Gap
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