New vision for regulation should worry junior lawyers, says JLD chair Leanne Maund.
There are many proposals set out in the SRA’s ’Looking to the Future’ consultation, but the Junior Lawyers Division (JLD) is concerned about the disproportionate impact on the junior end of the profession, and the resulting effect on consumers in particular.
Removal of the ’qualified to supervise’ requirement
The requirement to have been practising for 36 months and to undertake 12 hours of management skills training before a solicitor can practise on their own is set to be removed, meaning that a newly qualified solicitor (NQ) would be able to set up as a sole practitioner. While we would all like to see greater career opportunities and better access to legal services, the SRA’s reasoning behind this removal is illogical, and has not been considered in context of the proposed introduction of the Solicitors Qualifying Exam (SQE), which is running alongside the Handbook proposals.
The SRA say that their ’emerging data analysis suggests that newly qualified solicitors do not present a significant risk to the delivery of a proper standard of service’. However, given that all NQs can only practise in an environment in which someone more senior will have at least some level of oversight and responsibility for the work undertaken by that NQ, it is unsurprising that fewer NQs end up in front of the Solicitors Disciplinary Tribunal.
Without wishing to do junior solicitors a disservice, it is extremely unlikely that the reason why an NQ does not appear to pose a significant risk in terms of standard of service is because they make fewer mistakes than their more senior counterparts. NQs are more likely practising in a healthy working environment which allows them to develop their skills by undertaking work at the right level, and with the security of being under the watchful eye of someone more experienced. As such, the JLD will respond to the consultation and argue that the abolition of the ’qualified to supervise’ rule places levels responsibility on NQs and junior solicitors which could hinder their development, as well as removing the level of protection which supervision provides to consumers.
Further, given that the SQE (the structure and content of which has not been finalised) is wholly untested, the JLD considers that it would be inappropriate at this time to remove the ’qualified to supervise’ rule when no one in the legal profession can yet vouch for the robustness of the SQE in producing NQs equipped with all the knowledge and skills they would need to set up their own practice.
Different Codes for Solicitors and Firms
It makes sense that the content of a code of conduct should be worded appropriately to cover the individual and the organisation, and so a logical step is that there be a slightly different code for each – exactly what is being proposed.
However, the SRA have failed to consider what happens when the two conflict – which takes precedence and who is more culpable? Most solicitors are employees, bound to follow instructions from their seniors. Now, there is no question that each individual solicitor should consider themselves bound by a code of ethics and there are certainly incidents in which one should say ’no’, regardless of the consequence, but what happens when an ethical question is ambiguous, and the more junior person feels under pressure? This is a real issue for junior lawyers, who are sometimes asked to work on matters they are uncomfortable with but are in a position in which they may not have job security or been working somewhere long enough to accrue any employment rights, and feel they have no choice.
Should all individuals take responsibility for their own ethical conduct? Absolutely. However, should the SRA set out how the employer/employee relationship and the level of autonomy which an individual has over their conduct within the organisation will be taken into account? Absolutely. The consultation fails to deal with how the two codes will interplay, which is a huge flaw in the proposals.
Further, with the expansion of legal services and emergence of more non-regulated providers, the issue of how these codes apply becomes more difficult. The Competition and Markets Authority (CMA) is currently looking at the future of the provision of legal services, including the types of business in which solicitors can practise. Some solicitors will be bound by a code where their employer may not, and it is obvious that this could become difficult. Whether or not the proposed new Handbook will work and where and how it should apply is almost wholly contingent on the outcome of that CMA review.
Overall, the JLD would welcome a pause and rethink by the SRA on these proposals. The SRA is ’Looking to the Future”, but seems to be jumping the gun.