An echo in chambers? New report recommends regulation overhaul

Rebecca Cohen

"The legal profession’s echo chamber is a comfortable and comforting place for many of its members and representatives. The reverberating belief is that all is fine, that citizens are best served by qualified lawyers, and that the world would be a better place if all providers were like them – in fact, better still if they were the only providers."

So writes Professor Stephen Mayson in his final report: “Reforming Legal Services: Regulation Beyond the Echo Chambers”. Published last week, the report is the result of a two-year independent review and over 340 meetings with interested parties, completed pro bono under the auspices of the Centre for Ethics and Law, in the Faculty of Laws at University College London.

At the outset of my career at the bar, mid-pupillage and still reeling from some of my more gruelling bar exams and pupillage interviews – Mayson’s report makes for somewhat sobering reading. In making 46 long-term and four short-term recommendations to improve legal services regulation, Mayson describes the current approach as “exclusionary and protectionist”. Contending that legal services registration and regulation should extend beyond those who are legally qualified to all “providers” of legal services, and be governed by a single, sector-wide regulator, Mayson observes:

The problem with the lawyers’ echo chamber is that its beliefs and opinions are shared by so few others. It matters not whether those beliefs and opinions are ‘right’…

… The proposition that legal services are best provided by lawyers would be correct if two further propositions were borne out. First, that lawyers were universally the best providers; and second, that lawyers were universally accessible by all those in need. Unfortunately, neither is the case.

Regarding the former proposition, Mayson argues that despite the focus on the process and conditions for qualification and legal practice of lawyers:

… many consumers would attest that competence and ethics are not better when provided by qualified lawyers…
… there are circumstances in which the legal knowledge and practical experience of a will-writer, paralegal, social worker, employment adviser, planning consultant, and so on, can be much more accurate and current than that of a qualified lawyer … The increasing complexity of modern life, and of the law and regulations that apply to it, lead to a need for specialisation. Sometimes, this specialisation can come from lived experience rather than professional qualification…
… The application of technology has also been shown to be quicker, more accurate, and more cost-effective in certain circumstances than a human being.

However, it is the second proposition – that lawyers are inaccessible to those in need – that is of particular note. Mayson decries an approach which he describes as saying: “if you cannot afford a regulated lawyer, then we are prepared to leave you to your own devices”:

We are then knowingly driving people into doing nothing, or representing themselves, or having to rely on hard-pressed and precariously funded providers of pro bono or voluntary services, or engaging someone who is not regulated.

In so doing, Mayson suggests that the increased “volume of unmet need and self-representation among citizens” and “instances of no help or self-help” do “little to sustain belief in the rule of law or in the contribution and value of lawyers to society”.

For many people, the choice is not between the best advice and good enough advice. It is between some advice and none at all. We must be careful that our approach to regulation does not inadvertently or unjustifiably remove the ‘some’ from the sector.

It is hard to imagine a more divergent opinion from the view that the slashing of legal aid over the past decade has itself had a diabolical impact on access to justice – and led to unsatisfactory outcomes for many self-represented litigants – a status quo which has in fact reinforced the value of lawyers to society. Nevertheless, Mayson argues that:

We can no longer afford to take an ‘inside-out’ approach to legal services regulation. Looking at regulatory issues primarily from the perspective of lawyers … misses too many other relevant perspectives and factors …

… Should we seriously be saying to the public that … alternatives … cannot safely be made available to them? That the best we can do is to leave those alternatives in a regulatory hinterland where any meaningful protection and redress is a matter of chance? That in all circumstances we must somehow pretend that a human qualified lawyer will always provide the best, most reliable, legal advice and representation?

… The conclusion of this Review is that the regulatory framework should better reflect the legitimate needs and expectations of the more than 90% of the population for whom it is not currently designed.

Arguing that short-term measures are required “sooner rather than later”, Mayson also points to legal services being faced by a “paradigm shift” driven by the three external factors of COVID-19, the continuing progress of information technology, and the impending Brexit.

To Mayson’s credit – albeit in a somewhat flippant sense – he has pre-empted some of the feedback received from the legal profession:

Their ideal future would have more qualified lawyers, more public funding to meet lawyers’ fees in times of need, and extensive education of the public so that people and businesses could understand better why they should value and pay for lawyers and avoid the ‘unregulated’.

As it happens, the Law Society has effectively (and perhaps predictably) slammed Mayson’s report, arguing that in such turbulent times, instead of contemplating major reform, the focus should be on:

· Proper investment in the legal aid and justice systems, so that everyone – not just the well-resourced – can access justice

· Restoring trust in the crumbling criminal justice system

· Aiding recovery of the legal sector post-COVID-19 crisis

· Greater public legal education to help people to recognise legal issues and know when to seek help

Law Society President Simon Davis argued that recovery, not more regulatory reform, should be at the heart of efforts in the wake of COVID-19:

… the immediate focus of policy makers should be thinking about how to make better use of the current regulatory framework, deliver effective public legal education, resource legal aid properly and ensure the survival of the vulnerable parts of legal services that do so much to support people in difficult circumstances and to underpin a whole range of transactions, business and personal.

In its response, the Law Society has emphasised that the current regulatory framework, while imperfect, serves its purpose and has scope to adapt to meet risks (ie: by extending the current list of reserved activities to other high risk areas such as will-writing, estate administration and lasting powers of attorney). Moreover, it argues that there is a public interest in maintaining reserved activities in areas of significant risk and detriment to society at large, which only authorised persons can perform – “such activities must attract a higher regulatory threshold”. As predicted by Mayson, the Law Society also suggests that his report “undermines the importance of public legal education” and that making people aware of how to recognise legal issues and from whom to seek help could help to prevent legal problems from escalating and get the best result for all concerned.

I tend to agree. But then I would, wouldn’t I?

Rebecca Cohen is a second six pupil barrister specialising in criminal and family law. Rebecca was formerly a research assistant at the Law Commission.