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Mayson revisits question of title-based regulation

14 March 2019

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The title ‘solicitor’ was queried as the “lynchpin” of current legal services regulation this week during a public meeting on the future of regulation for the profession.

It was the first public meeting concerning University College London’s (UCL) Independent Review of Legal Services, led by Professor Stephen Mayson.

There was a heavy focus on the issues surrounding title-based regulation and the reserved activities, as well as whether the profession of the future will require multiple regulators.

“One of the challenges for the review is I absolutely recognise the value that higher professional standards will bring to some consumers but being very cynical I don’t believe that all title holders that claim to operate at that standard actually do”, Mayson said during questions at the close of his presentation.

“To me, that’s the difference between brand and regulation, and I think at the moment we’re conflating and confusing the two.”

Asked whether he believed that there should be a “universal approach” to regulation or a “stratification depending on the type of firm or clients”, Mayson returned to the issue of title-based regulation and its role as a “gateway” to the profession.

“The question assumes that ‘solicitor’ continues to be the lynchpin around which regulation is built, which is one of the questions posed by the review”, he said.

“You raise a different angle on a lot of these issues, which is that not all solicitors are the same. They don’t do the same thing.”

Emphasising the lack of clarity in the current system, he continued: “They might all have the same title but the idea that they are in the same sort of business, doing the same sort of thing, is wrong.

“And if we’re serious about risk we are going to see different risks in each of those circumstances and therefore we should regulate them differently.”

Mayson said that currently it was not possible to separate the risk encountered by firms, or individual practitioners, specialising in different types of work because of the universal rights bestowed on qualified solicitors. “It’s a fixed point of entry and everybody who goes through that gate, gets the whole lot”, he said.

“But equally there is the baby and bath water problem because if you say that’s no longer the gateway, then you risk professional ethos and standards and the rest of it, which ideally all solicitors will value, but are certainly valued in the city or internationally.

“Then we have to be careful that we don’t throw all that brand and market value away, which is clearly producing for the UK economy, as well as for the legal professions.”

Held at UCL’s Faculty of Laws on 12 March, the meeting offered a summary of five academic papers that have been published to date as part of the review.

Mayson also posed a number of questions that have come up during the project, which he is inviting members of the profession and other interested parties to respond to.

As well as querying the future role of title-based regulation, Mayson asked whether ‘reservation’ needs to be retained or whether an alternative approach to before-the-event authorisation should be sought. Finally, he asked how regulation should address the likelihood of substitutive legal technology taking on a greater proportion of legal work.

The review, which kicked off in October 2018 with the publication of three working papers, has now entered its second stage. The second stage will address the focus and structure of regulation and includes updates to the first three papers as well as the addition of another two.

These are available to read on the project’s website and Mayson will take responses until the close of stage two on 28 June. The third stage will include the publication of an interim report in September, followed by further meetings and discussions over the Autumn. A final report will be published, and submitted to the Ministry of Justice, in January 2020.

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