With many of us still reeling from the last surprises of 2020, what better time to consider what next year might bring? Some trends are becoming clearer. Here is an eclectic choice of three from among the developments rushing towards us.
First, unregulated providers of legal services are going to be brought into some kind of regulation. That is hardly rocket science. It was one of the recommendations of the report over the summer by Professor Stephen Mayson into future regulation of the legal profession, and is now included in the recent Competition and Markets Authority (CMA) report called Review of the legal services market study in England and Wales.
Professor Mayson’s preferred short-term solution was for the Legal Services Board (LSB) to establish a public register of currently unregulated providers of non-reserved activities to consumers, whether for reward or as part of a commercial activity. He said the LSB should then decide if any compensation and indemnification arrangements should be attached to those registered.
The CMA has a slightly different short-term recommendation. The favoured solutions of both the CMA and Professor Mayson are for long-term root-and-branch reform of the regulation of the legal profession, but they both recognise that – since the government clearly has its hands full with other matters – such change is not going to happen for the time being. The CMA’s short-term solution is for the Ministry of Justice to create, or empower the creation of, a mandatory public register for unauthorised providers.
There are complex debates to be had about remedies against, and regulation of, those covered by the register, but that is for another day. This is a short list of predictions, not the debate itself.
Second, the topic of responsible business obligations will be pressed further onto the legal profession. In other words, something rather niche at present will become more widespread.
As just one example of what this means, Bloomberg ran an article recently suggesting that law firms, among others, might be judged for their impact on the climate not only based on their own footprint as a business, which might be relatively low, but on the climate damage they enable to take place through their legal work for clients. In the case of those law firms advising the fossil fuel sector, this might be considerable. There would be a measurement of such impact just as there is for those who directly contribute to it.
This ties in with the recent Law Firm Climate Change Scorecard from the US, which measured firms in a similar way.
Responsible business obligations are not just tied to the climate. For instance, given the rising tensions between the West and China, with greater emphasis placed on China’s human rights record (the forced incarceration of a million Uighurs, for instance) and its questionable debt diplomacy through the Belt and Road Initiative, can it be long before the role of Western lawyers in supporting China’s international ambitions come under the spotlight?
Again, the debates around this are for another day.
My third prediction relates to an obvious trend. The context arises from our common experience during the pandemic, which has seen an acceleration towards delivery of legal services online. This will almost certainly outlast the pandemic. But that is not my prediction, since it is so evident. Rather I predict much more attention being paid to the means that we now daily use without a care in the world.
The video platforms used by us all, including public institutions, do not pass any sensible tests for lawyers. We know practically nothing about them. Here is a list of issues from a recent paper from the Council of Bars and Law Societies of Europe (CCBE):
• how accessible, transparent and acceptable are the video platform provider’s relevant terms and conditions (for instance, in the case of need for remedies against it)?
• where are the data for the video platform provider’s calls stored, and are there any consequences following from the place of storage?
• to what extent does the video platform provider sell or share personal data?
• to what surveillance might data held by the video platform provider potentially be exposed (which is different to the security of the video call itself)?
• how can lawyers safely and privately communicate with their clients, where appropriate, during a video call with others, such as with courts?
I predict that these questions will become more urgent next year. They must be asked, to allow one of our core values – lawyer-client confidentiality – to be protected. That may lead to more tailored solutions, either from the big providers or from new entrants to the market.
So, there it is: new regulation for currently unregulated legal services providers; more responsible business obligations for law firms; and better tailored video platform solutions for the legal profession.
Yes, I know: predictions rarely come true.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. 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