Watchdog is a lobbying group for one interest in a diminishing part of the legal ecosystem.
How many of these ideas do you recognise? Who came up with them?
- Lawyers should publish the average prices of their services on their websites.
- Non-clients should be able to complain about lawyers’ services.
- Lawyers should undergo five-yearly competence testing and there should be a peer review of the advice they provide to clients.
Correct. They are all proposals that have been made by the Legal Services Consumer Panel (or the panel’s chair).
The panel is there to represent the interests of consumers to the Legal Services Board (LSB). It does this by conducting research, considering developments in the market for consumer legal services, and providing the LSB with comments and response to consultations.
It is clear from the minutes of the panel, and from its annual reports and proposals, that it thinks carefully about the tasks that have been given to it.
At times, its documents give an impression of in-depth analysis, perhaps at the expense of practical solutions. Consider, for example, the following response to a recent consultation by the lord chief justice on McKenzie friends. One of the questions, and the panel’s answer, follows:
'Question 4: Should different approaches to the grant of a right of audience apply in family proceedings and civil proceedings?
'Answer: Differential approaches in specific courts are theoretically an efficient way of setting guidance. However there needs to be consistent mindfulness of the impact this may have on vulnerable litigants in every court. There is a risk that a vulnerability is not discovered or does not develop until a case has been categorised and reasonable assistance or beyond disallowed. If this proposal is adopted, we would expect to see reasoning and evidence to inform the setting of the thresholds.'
This careful approach can also be seen in some of the panel’s statements about the market for legal services. It recognises that big changes are taking place, and that it can be difficult for the panel just to keep up with those changes, let alone try to influence them. One of those changes is the increase in unregulated service providers.
In the words of its 2020 Legal Services report of 2015: 'Regulated lawyers should be viewed as a small part of an increasingly diverse ecosystem of legal services delivery; improving access will require looking at how the whole system will work in future around consumer need.'
The panel’s published documents suggest an awareness of other external factors that affect the provision of legal services, including the near abolition of legal aid. They also seem to recognise that legal services have some unique features, which are not replicated in other regulated markets.
So far, so good. The difficulty comes when the panel moves on from analysis to proposals. Looked at holistically, some priorities for action to address consumer needs might include (a) improving legal aid, (b) reforming the court system including reducing fees, (c) regulating unregulated advisers, and (d) introducing laws to protect lawyers from negligence suits when providing unbundled services, thereby encouraging the development of such services. However, most of these actions are beyond the panel’s primary remit.
Instead, the panel is there to focus on the regulation of solicitors and other regulated legal advisers. In fact, its remit is even narrower than that. As it acknowledges in its public documents, its role is to represent the interests of consumers, and sometimes those interests might be outweighed by wider regulatory interests.
So, despite the breadth of its analysis of markets and consumer interests, it comes down to being a lobbying group for one of a number of interests within a regulatory system that is a diminishing part of the legal ecosystem.
The narrowness of this interest reduces the panel's ability to make useful suggestions, as does another factor that should not be overlooked. The panel is made up of eight lay members appointed by the lord chancellor. It is fashionable to value the perspective of lay observers over insiders, as can be seen in recent changes to the composition of the Solicitors Regulation Authority’s board.
But when it comes to the details of how lawyers should conduct themselves, a panel composed entirely of lay members inevitably lacks insights into the realities of legal practice.
Hence some proposals for change can come across as ill-informed or unrealistic, including those which started this article. This is potentially dangerous, as proposals of this kind could be picked up by legislators who have less insight into legal practice than the panel. Thankfully, even the LSB can see when a proposal is absurd; it has recently rejected (at least for the time being) the panel’s proposal on publishing average charges.
So, what is the answer? Some might say that the consumer panel is ripe for the next bonfire of the quangos.
My view is that the panel would be better as a subcommittee of a reformed LSB, with a few lawyer members to leaven the mix, with less pomp and independence, and without the power to make public pronouncements. In this way, we might benefit from careful analysis without some of the downsides of its present, anomalous position.
Mark Anderson is a solicitor in private practice and chairman of the Law Society’s Intellectual Property Law Committee. He writes in a personal capacity