Janet Paraskeva: some support for 'gateway' approach to consumer complaints Janet Paraskeva conveys some of the background discussions that may well influence Sir David Clementi’s final decision on the future regulation of legal services


And the debate goes on. Although hundreds of responses to Sir David Clementi’s consultation on the future regulation of legal services were submitted by his deadline of 24 June, there is still much to discuss and plan in order to be in the best position to respond to the recommendations when they are published in December this year.


Trying to read the tea leaves is never easy, but it is important to understand the variety of different pressures on Sir David as he begins to draft a document that will shape the future delivery of legal services as well as how they are regulated.


Uppermost in Sir David’s mind appears to be the new business model of legal disciplinary practices (LDPs). These new entities will need to be regulated, and a question for the Law Society is whether our own regulatory structures can be adapted to regulate the new business model. After all, as well as individual recognition, the Law Society already effectively regulates firms through the regulation of their owners, the partners.


What might well be needed, however, is a framework within which the new entity is authorised to provide a specified range of services to the public. There will also need to be rules on entry for non-solicitors as partners and rules on the management, control and ownership of the business.


LDPs will only deliver legal services, of course, but they may no longer be run only by solicitors or even only by lawyers as partners. Not only those managing the new entity but also those owning it might well come from outside the solicitors’ profession and the new regulatory framework will need to establish clear rules for the running of such businesses.


These rules will need to provide for the solicitors within LDPs the conditions which guarantee the values that are at the core of the profession.


As part of our continued thinking at the Law Society, in late July we hosted a roundtable discussion on the issues at the heart of the review. We invited representatives of other professional bodies – both for lawyers and other professionals – local law societies, practitioner groups and law firms as well as representatives of the Clementi Review team from the Department for Constitutional Affairs. The discussion was conducted under the Chatham House rule of non-attribution but I thought it would at least be interesting to convey in this article the spirit of some of the discussion and the debate which might well influence David Clementi’s final decision.


In relation to LDPs, a number of participants made the point that outside investment and flexibility in ownership could be very helpful in running a law firm, but some were concerned for smaller solicitors’ firms where they thought criminals and others unfit to own a practice might become involved. A key issue will clearly be the establishment of an effective prospective test of fitness to own.


However, this possible gloomy vision was not shared by all. Others were convinced of the importance of solicitors being able to take a more commercial approach. LDPs, they emphasised, would promote choice both for clients in how they access services and for professionals in the kind of organisation in which they wish to work.


On the model of regulator needed for the future, model A, where regulation would be taken away from the professional bodies and placed in the hands of an over-arching legal services authority, was roundly criticised as being potentially bureaucratic and inflexible, and a significant threat to the independence of the legal profession.


Professional involvement in regulation was thought to be crucial, though most agreed that something more than a simple tidying-up exercise was needed (particularly in relation to the regulation of the proposed new business model).


As far as consumer complaints were concerned, the gateway approach used in New South Wales was endorsed by some because they felt it would be helpful for members of the public who do not know where to start when making a complaint and because it would ensure a consistency of approach in handling all complaints across the professions. The gateway organisation would handle service complaints about all lawyers and then refer conduct matters to the appropriate professional body for action.


Others present at the meeting argued that an independent and self-regulating profession should deal with all of its complaints itself and that not to do so would, in a sense, be an abdication of responsibility. Although there was general agreement that the consumer interest must be a priority, this was not seen as a reason why the professional bodies should not be responsible for complaints.


If one thing was clear at the end of the meeting, it was that Sir David faces a complex task and a challenging one. As the Society looks at its own governance arrangements and tries to consider how to move towards the greater separation of decisions about regulation from the representative body, it is also beginning to consider how it will fund and shape the rest of its functions – its important work on law reform and its role representing the profession in litigation, in negotiations with the government and the Legal Services Commission, and to the public.



Janet Paraskeva is chief executive of the Law Society