Post-Mazur, we should think big

Two years ago, when the debate about whether the Solicitors Regulation Authority should regulate CILEX members had just begun, I gave a personal view about how the issue should be resolved, buried at the end of an article: 

‘I would cut through the Gordian knot by grandfathering in to the solicitors’ profession all current CILEX members, so that they become solicitors, maybe subject to qualified practising certificates, with all newcomers becoming solicitors through the SQE, a route acknowledged to be accessible. There, it is done! I hope that that becomes at least one of the options we will consider.’

But it has not been among the options considered - although the prospect of SRA regulation of a group separate from solicitors has come closer to fruition.

I think it might be time to reintroduce my idea because of recent developments, specifically the Mazur case about who is authorised to conduct litigation. The Gazette has covered the consternation that the decision has caused nationally, as firms reallocate the functions of their staff and face costs challenges, given that some experienced people in the office can no longer do what they have done for years.

We in the UK suffer from fragmentation of our legal providers’ market. Unlike nearly all of our competitors, we not only have a split in our profession between solicitors and barristers, which is confusing to outsiders when exporting legal services (and confusing to many UK natives as well) – but we also have to explain that our geographically small country has three jurisdictions, with two legal professions in each, meaning six legal professions altogether. The existence of legal executives is an added complication.

The movement in other countries has been in the opposite direction, to reduce the number of legal professions. In France, in the early 1990s, the two professions of ‘conseil juridique’ and ‘avocat’ were merged, so that all ‘conseils juridiques’ automatically became ‘avocats’ on a certain date. This was in order to modernise the French legal profession, to make it more competitive within the looming EU single market. The French Minister of Justice talked about ‘the obsolete character of the separation of the legal profession’.

The former communist countries of eastern Europe faced the same challenge on joining the EU from around the same date onwards. They had emerged from Soviet rule with two legal professions, a ‘legal advisor’ (usually based in-house in a state enterprise, and the most numerous profession) and an ‘advocate’ (who appeared before the courts, usually a very small profession). Nearly all of the countries chose to merge the two, so that ‘legal advisors’ became ‘advocates’ as from a fixed date. The advocates were not keen on being overwhelmed by a much larger number of (in their eyes) inferior legal advisors, but the merger has been accepted and is no longer an issue.

So that leaves us with a choice about how to resolve matters within our own legal professions. There are two pressing matters now: the push by CILEX to separate regulation by the SRA, and the confusion caused by the Mazur judgment.

Of course, we can continue down the road of turf wars, defining ever more tightly the lines that delineate the boundaries between our professions, revelling in hierarchies (real or imagined). To my mind, that is not the route towards creative thinking and progress.

Rather I would encourage us to think big, and to entertain bold ideas about what an ideal legal profession would look like, preferring unity, and the harmony that could follow.

As a result, I think – and it is my personal view alone - that welcoming CILEX members into the solicitors’ profession would resolve in one stroke the two problems that confront us.

Of course, there would be serious challenges.

First, the various institutions – the Legal Services Board, the Law Society and the SRA, CILEX and CILEX Regulation, and maybe others – would need to find a common way forward. That may not be easy or quick, given their separate agendas and the need to adhere to legislation. 

Second, there are questions of detail. For instance, would existing legal executives grandfathered into the solicitors’ profession be able to undertake all the functions of a solicitor, or be issued with only a qualified practising certificate covering their areas of expertise? Alternatively, should there be exams for such legal executives, covering the areas in which they are not experienced, before they can become solicitors – rather like the pre-SQE Qualified Lawyers Transfer Test for foreign lawyers, which tested such lawyers in areas new to them, and assumed knowledge in others?

Yes, these are difficult problems. But are they worse than the challenges we anyway face with CILEX’s wish to be regulated by the SRA, and also as a result of Mazur?

And surely the outcome is better. Just think of the benefits: a more streamlined structure to our legal system, and a resolution to the difficulties posed by the Mazur decision, because all concerned would be solicitors.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society