Facing the challenges

Solicitors must embrace competition while their governing body continues to regulate firmly and lobby tenaciously, Carolyn Kirby tells the Law Society conference in her keynote speech

In the face of a very competitive environment over the past decade, this profession has more than held its own.

It has grown in size by 51% in the past 10 years.

Last year, the profession generated 10 billion worth of work.

That was a significant, important contribution to the economy of England and Wales.

We have already coped with enormous change.

We have made a huge and positive contribution to the administration of justice.

It is solicitors who delivered many of the benefits of the Woolf reforms.

It is solicitors who have held publicly funded legal services together.

It is solicitors, working with the Law Society, who have made countless suggestions for reform of the law and administration of justice.

It is solicitors who have succeeded many times in convincing the government to reconsider badly designed policies.

Another strength is our pro bono work.

I am delighted to see so many new schemes being set up by the Solicitors Pro Bono Group and I congratulate them on their work.

The first ever National Pro Bono Week in June was a great success and highlighted the tremendous work that is being done all over England and Wales by solicitors - another source of justifiable pride for our profession.

The latest Society survey highlights the fact that we are becoming a young profession.

The average age of a woman solicitor is 36 and a man 44.

We are also an increasingly diverse profession, reflecting more closely the society we serve - and that is something we should all welcome and encourage.

There is more to be done but no one should doubt the Law Society's - and my - commitment.

Our standards are rising.

We are becoming more business like.

We are becoming more IT literate.

Solicitors are better regulated.

Our professional body is exercising more leadership.

It is dealing with the issues affecting the profession's future more effectively.

Regulation is the most important task the Society undertakes.

We do it in the interests of the public and solicitors themselves.

We know that self-regulation is a privilege not a right.

There is a heavy burden on the profession to demonstrate that this method works best.

Self-regulation means that the professional body can ensure that intelligence gathered from regulatory work is used to shape future training and to provide the right kind of practice support.

But the Society recognises that self-regulation has to be underpinned by a high level of accountability and independent scrutiny.

The Society has worked hard to make its regulatory processes more independent and transparent.

The [Law Society] Council has just approved a clients' charter, which will be widely distributed.

It is there to explain to consumers what they can expect from their solicitor.

It is also a powerful marketing tool, because it shows the reasons why the public should choose solicitors - high standards and good consumer protection.

If we want to retain self-regulation, we have to make even more progress with complaints handling.

We have come a long way.

We are dealing with 81% of written complaints within six months and 61% within only three months - a vast improvement on the position of three years ago.

We are soon going to test our performance against other complaints-handling organisations.

We continue to work hard on implementing and continuously improving our consumer redress scheme.

Sir Stephen Lander will be taking up his post as independent commissioner in November.

He will scrutinise the operation of the entire scheme and all its processes.

In spite of our efforts, this year the number of incoming complaints to the Society has risen.

In the short term, we are taking a range of steps to ensure that we deal effectively with that extra work, including extra staffing and more resources for monitoring and practice support.

But we need to do more to tackle the problem at source.

That is why I want to stress again to solicitors the importance of dealing immediately with any client dissatisfaction, and of not letting it burgeon into a complaint.

Over the past two years, the Society has introduced better systems to identify and tackle the root cause of complaints.

We have a tougher regime for solicitors who are found not to have dealt properly with complaints or who have provided poor service.

Those solicitors now have to pay the costs of dealing with the complaint.

Firms which have poor complaints records now receive a monitoring visit in short order.

They are given advice and recommendations on how to improve their performance.

The focus is on helping firms to make the grade, providing they have the will to do so.

But those who persist in ignoring the advice, and who continue to fail to meet the required standards of client care, run the risk of being fast-tracked to the disciplinary tribunal.

The Society plans to increase our monitoring activity significantly.

From 2003, our aim will be to visit up to 2,000 firms every year.

It is a tougher regime for the minority who are not giving good service.

It is a supportive regime for the profession as a whole.

I turn now to the Lord Chancellor's consultation called In the Public Interest.

The consultation discusses implementing parts of the Courts and Legal Services Act to allow anyone to become authorised conveyancing practitioners and authorised probate practitioners.

It poses difficult questions, such as how many new providers would do this work? What would the impact be on people's access to legal services?

The Society will be consulting practitioners and the public, so that we can give an informed view to the best of our ability.

However, there is a heavy onus on the government to do thorough research before they make final policy decisions.

It is not enough just to ask respondents to make informed guesses on such important issues.

For example, if financial institutions are to be allowed to provide conveyancing services, or to extract a grant of probate, there will need to be extensive mechanisms to ensure proper protection of consumers' interests.

What protections will be in place, for example, to ensure that a borrower does not come under pressure to have her conveyancing conducted by her lender? Or if she chooses to let her lender do it, what safeguards will be in place to ensure that she receives independent advice about her mortgage product?

With regard to probate, what safeguards will be in place to ensure that people who undertake the work will have the proper knowledge of the complex laws of taxation, trusts and inheritance? Who will set the standards for the knowledge required? Who will monitor the performance of authorised practitioners? Who will ensure that there are no hidden charges passed on clients in the form of 'arrangement fees', 'acceptance fees', or 'drawdown payments'?

Healthy competition can help to drive up standards.

But the consumer interest and the public interest are not always one and the same thing.

Short-term gains for consumers can lead sometimes to long-term losses for the community as a whole.

The council has already stated its view that it wishes to allow flexible modes of practice, so that consumers can have more choice of the ways in which they obtain their legal services.

For this reason, we favour a change to the current practice rule 4, so that employed solicitors would be able to provide services to their employer's clients.

We also favour allowing multi-disciplinary practice.

But we are not in favour of allowing a free-for-all.

I want to stress that the Society does not have a problem with competition.

The Office of Fair Trading itself has praised the Society for its progress in trying to open up new modes of practice.

So we are raising these issues because guaranteeing the proper level of consumer protection will not be easy.

In the new models proposed by the Society, the entities providing legal services will be subject to the proper controls.

That is because they will follow the ethical and practice standards set by the Society.

So it is not about defending, or about trying to maintain, a closed shop.

It is about ensuring that consumers get good legal services wherever they obtain them.

As a final point on the Lord Chancellor's consultation, I hope the government will consult soon on how to deal with unqualified, unregulated and unscrupulous advisers.

Throughout the last decade, the Society has campaigned tirelessly about the risks of failing to invest properly in publicly funded legal services.

Now, two serious problems face the Community Legal Service (CLS) - recruitment and retention of good lawyers.

Both issues must be addressed if disadvantaged people are to have access to justice.

The immediate priority must be to hang on to the highly qualified and motivated legal aid practitioners who are still doing work for the CLS.

That means they must be paid fairly for the important work they do.

Society research suggests that the drift away from publicly funded work will continue over the next few years.

So it is critical that the government thinks carefully about the impact of its latest consultation.

If lending institutions and others secure a large part of the market for conveyancing and probate work, the effect could be detrimental for practices which offer these areas of expertise alongside publicly funded work.

If firms are no longer able to remain viable on the high street, then whole communities could be left without any access to legal advice or representation, particularly those who can not afford to pay.

This poses a policy challenge to the government.

It is time now to think of new models for delivering publicly funded services.

A properly resourced and funded service could be modelled along the lines of GP practice.

I have never understood why the government applies different standards to publicly funded legal services as opposed to public health services.

The government is willing to invest in premises, staffing and IT for doctors.

GPs can take the capital out of their practice when they retire.

This is all as it should be.

But why then does government deny these resources to legal firms concentrating on publicly funded work?

The fourth area that I would like to deal with is our important work on reform.

Lawyers have an enormously important role in being principled and independent scrutineers of government policy.

The Society's specialist committees, groups and sections do enormous work in scrutinising consultation papers emanating from government and other bodies.

They comment and lobby on draft legislation, and highlight areas where the current law or administration of justice is not working as well as it should.

This work is always done in the public interest.

There are many examples of reforms that the Society has proposed, with input from practitioners, even though leaving well alone would have meant more earnings for the profession.

Bad law tends to create work for lawyers, but still solicitors do not want it.

I want to deal with three aspects of our current law reform work - the need to reform the law on cohabitation; the White Paper on criminal justice; and the need to rethink the proposed mental health legislation.

The Society has just published a law reform paper about the need to provide better protection for cohabiting couples.

Our paper sets out a sensible, rational framework for modernising the law while still acknowledging the status of marriage.

The current inadequate state of the law causes a great deal of distress.

The government must legislate and I hope it will do so soon.

The Society is also deeply concerned about the draft mental health legislation.

We believe it is flawed and that there needs to be much more consultation before any attempt to progress legislation.

The current draft Mental Health Bill is an example of how responding to isolated, high-profile incidents tends to make for poor law.

The Bill places too much emphasis on the risk posed by a small number of people with severe disorders.

Meanwhile, it fails to deal with the needs of the large number of ordinary people who suffer from mental illness, and who are far more likely to be the victims, rather than the perpetrators, of violence.

The final area of law reform is the White Paper on criminal justice, entitled Justice for All.

Our criminal justice system has suffered in the past from a piecemeal approach to legislative reform.

So it is a positive development that the criminal justice White Paper has turned out to be a considered report.

It has a laudable aim - modernising our criminal justice system to ensure that victims, witnesses and defendants have greater confidence in it.

And, on the whole, the Society welcomes its content.

It is good, for instance, to see positive proposals in the White Paper on alternatives to prison.

But there are major concerns.

They involve significant erosions of principles that are central to the fairness of our justice system.

The long-standing cornerstones of our system, such as the right to jury trial, the rules of evidence and the bar on double jeopardy, are important safeguards against miscarriages of justice, and harassment.

I have respect for the difficult work our police forces have to do.

But I am tired of the myths that are perpetrated about low conviction rates.

It is no good blaming the lawyers - defence, or indeed, prosecution.

The answer to dealing with crime lies in better resources for law enforcement, better detection, better framing of charges and better resources for the prosecution service.

It does not lie in eroding civil liberties.

The government needs to recognise the role of lawyers by valuing our work in law reform and in maintaining the rule of law.

I urge the government to work positively with lawyers - solicitors' barristers and the judiciary.

We all need to celebrate the strength that an independent, questioning, legal profession brings to a democracy.

This profession is doing all that is asked of it and a great deal more.

We have strengthened our regulation, we are embracing competition, and we are preparing for change.

That is not a process that ever stops.

The Society is changing, the expectations of the public are increasing, and we have to reflect all of that in how we think and work.

This is an edited version of the speech given by Law Society President Carolyn Kirby.

A full version can be found on the Law Society's Web site at www.press.lawsociety.org.uk