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Is the Legal Services Board really regulating the regulators?

The disparity in treatment between solicitors and other regulated lawyers suggests the oversight regulator has failed to secure consistent standards across all professions, says Paul Bennett

1 March 2019

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Solicitors get treated harshly. Our professional standards are high, rightly so, but the decisions of other legal regulators are simply not consistent with solicitors’ standards. This creates a tension which the latest consultation of the LSB is set to air. 

But firstly, a confession: I’m a legal services geek, so I accept most in the profession do not share my day-to-day interest. Ask, though: Do you want an all- powerful Orwellian approach or a careful approach to professional regulation that is open, fair and transparent?

The SRA gets much right, its minority of errors are, inevitably, always pulled apart by commentators and a profession aghast at those errors.

The SRA needs an empowered Law Society, just as a governing political party often benefits from a strong opposition. You disagree but governance is enhanced by challenge.

Last month, the Law Society published its response to some LSB proposals arguing the proposed new rules risk undermining the distinct functions arising under the Legal Services Act 2007 for the Law Society and SRA.

The act obliges the Legal Services Board (LSB) under Section 30 to make rules setting out the requirements for each approved regulator to ensure the separation of regulatory powers, as exercised by the SRA over solicitors, and the representative functions which the Law Society retained after the act, are met.

These rules known as internal governance rules (IGR) affect how the regulators and representative bodies such as the Law Society discharge those statutory duties.

With nine, I stress nine, frontline legal regulators such as the SRA, Bar Standards Board (BSB), Council for Licensed Conveyancers (CLC), the LSB is trying to balance a myriad of competing interests while finding its way as a regulator.

The separate representative bodies for each of the legal professions argue public interest issues, policy and support their respective professions, but the act created a regulatory landscape which is new and each organisation under the act makes errors.

Those involved are still finding their feet, so the carousel of change presents an on-going risk. The IGRs as proposed fail to define ‘oversight’ which is a statutory role of the Law Society, which the LSB apparently seeks to remove by its proposals. They also introduce a new criterion of ‘influence’, which appears ill conceived and unlawful. This matters to you – why? 

The recent contrasting fortunes of Richard Keogh and Emily Scott before the Tribunals of the BSB and SDT highlight the failure of the LSB to ensure standards are broadly the same across the professions.

Keogh, a barrister, sent Class A drugs into chambers and received a police caution for possession of cocaine yet can still practice without restriction. Emily Scott, a trainee solicitor, by contrast, who whistleblew after completing her training was struck off for acting as directed by her supervisors.

The LSB’s failure to encourage the regulators to focus on credible prosecution decisions fails both the public and the wider legal profession. Rehabilitation should be possible across the professions, not just at the bar. 

The LSB should be adopting the language of the act in the IGR. By not doing so, the LSB demonstrates a lack of competence. The LSB’s IGR proposals are an opportunity to improve things missed, yet, its proposals are unclear, muddy the waters and seek, deliberately or through a lack of competence, to breach the Law Society’s statutory role.

The LSB have fallen into the trap of thinking that sounding tough is being tough, and that it will be in the public interest. By contrast a profession who can help its members meet its obligations and ensures the public are protected by fair disciplinary decisions meets the statutory obligations.

The LSB should therefore seek to ensure consistency across the frontline regulators – is a barrister who lacks integrity more suited to an on-going career? No, so perhaps solicitors are being treated unfairly? Yes.

The LSB helping protect the Law Society statutory function would be in the interests of the public and the profession. The question for the LSB is thus: Is it capable of regulating the regulators or not?

Paul Bennett is a solicitor and founding partner at Bennett Briegal LLP (from 1 March 2019) www.bennettbriegal.co.uk

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