Is the LSB too market focused?

The Legal Services Board has published a document setting out in detail how it interprets its regulatory objectives.  As one would expect, the focus is avowedly consumerist and market-driven.  It lays down a number of challenges to legal service providers generally, and the professions in particular.  It also fires a couple of warning shots over the Government’s bows.  Here is a quick analysis of some points that caught my eye.  Comments in bold and italics are quotes from their report.

We intend that, over time, public and consumer confidence in the legal sector will rise, whether as measured by looking at complaints handling, faith in lawyers, or trust in regulation.

This appears to be the main basis on which the LSB envisages assessing its performance.  Has public and consumer confidence risen during its lifetime?  It is indicative of both the consumerist element in its proposals but also of a recognition that public confidence in the legal system is crucial to its legitimacy and to social cohesion.  Justice must not only be done, it must be seen to be done.

Assessing confidence in complaints handling poses no particular problems but using ‘faith in lawyers’ and ‘trust in regulation’ as indicators do.  Research on satisfaction with courts indicates that the public, in particular, focus heavily on perceptions of the criminal justice system when evaluating confidence of criminal courts for instance.  It is also likely that their views are heavily influenced by their perceptions of crime and the police (as opposed to perceptions of the court). There is a significant likelihood that trust of lawyers and trust in regulation is infected with similar problems.  Focusing on the views of users may be more beneficial and careful drawing of survey questions will be important; but in a system which promotes the concept of legal services which goes well beyond a conventional lawyer-client, contracted service does.  Focusing on non-users is also important, particularly if access to justice diminishes.

This independence also insulates approved regulators from state encroachment into the regulation of individual lawyers and their legal practice or the detailed relationship of lawyer and client/consumer and is consistent with the effective separation of executive and judiciary.

There are a number of interesting comments on independence  in the document and some warnings to Government that they will not hesitate to speak up as a critical friend.  I wonder about how this will work.  The LSB will have to tread a careful line in seeking to assert a view contrary to the view of a government capable of claiming democratic legitimacy and accountability for its reforms.  Take Jack Straw’s recent reforms of contingency fees in employment tribunals.  The evidence suggested that these reforms damaged the interests of the consumer and access to justice.  It is also beyond argument that they directly interfered with the lawyer client relationship.  I do not see how the LSB insulated state regulators from encroachment here.

Consumers will notice this in improvements in the way complaints are handled. There we will foster an approach of fairness at all levels of legal services as we consider that this is consistent with the rule of law, even though much of the resolution will take place through informal dispute resolution at service provider level or through the dispute resolution mechanism provided by the OLC.

My discussions of those involved with professional regulation suggest there is a tendency to push consumers into settling complaints through mediatory approaches.  The LSB (and OLC) will need to guard against this

We do not accept that business structures in any way alter professional ethical obligations. We also believe that these ethical principles are so strong that they should not be threatened or undermined by the commercial context in which law is practiced. In particular therefore, we will be very cautious in entertaining arguments that alternative business structures in and of themselves threaten the rule of law.

It seems to me, and with some justification, that much of the document is written with half an eye on the ABS debate.  I share the view that alternative business structures do not in and of themselves pose a particular threat.  The main argument about ABSs is that economics will ride roughshod over professional values.  This is something which, as the LSB hints at, can happen just as strongly in a partnership or sole practitioner format.  As Paul Grout has argued, it is not the general description of an organisation which is important, it is the economic incentives operating within them which is important.  That is one reason why the focus on the extent of lawyer ownership is probably not the key issue (except in a sociological sense).

That said, work on regulation tends to suggest that culture is an important predictor of regulatory success.  The LSB seem to rely on a markets plus rules as being sufficient to lead to good outcomes for the consumer.  In one sense they are right, this is not vbery different from the current system.  But in another, they may be wrong: there needs to be  greater focus on how a professional culture is fostered both within firms and ABSs.  A consumer focus and clear rules may not be enough.

Access to justice is the securing of „just‟ outcomes rather than the process of dispute resolution

There is a resolutely Sussklnd-esque tenor to the paper: information technology and better systems-thinking might transform legal services.  The LSB does not favour any model or provider of legal services, and nods specifically in the direction of alternative methods of delivery, commodification, and cheap- or costless information provision, both within and without professional structures.  This is easier to support, if ways can be found to do this then access to justice should increase (putting to one side the precarious position of our legal aid system, where the LSB appears to indicate a willingness to speak out against damaging access to justice, we will watch with interest!).

It is a long way from being inevitable that such changes will damage quality of services  and the access to justice gains are palpable, especially for those who would never qualify for legal aid even in better days.  Yet there is a concern about how quality will be protected.  Much of the LSBs strategy is driven by a consumer focus which is anticipated as being measured by consumer satisfaction and complaints.  It is difficult to see much indication of a more rounded notion of quality developing in LSB (or its Consumer Panel) policy yet.  This is a concern.  It is easy to focus on satisfaction and relatively easy to manage it, but there are aspects of quality which a client has no idea about.  There appears to be some recognition of this in the paper but the LSB is hazier on how to regulate for quality and ethics across service sectors and organisational types.

We do not think that sharpening regulators and legal service providers‟ focus on consumers in any way lessens the professional responsibilities of lawyers to give the best professional advice in each circumstance, even if that advice is not what the consumer wants to hear. Nor does it mean any lessening of lawyers‟ paramount duties to the court and the rule of law. However, we consider that it is as wrong-headed to pretend that there are no improvements to be made to the consumer experience of legal services as to imply that responsibilities to consumers somehow negate those to the wider public interest.

At a basic level, this is true and there is a case to be made for concentrating initially on improving service quality amongst legal service providers (although user surveys tend to suggest that service is generally pretty good).  But the emphasis is on service, I believe, because it is tangible and measurable whereas the other qualities of professionalism are harder to measure , promote and protect.  It is clearly possible for doing ones duty for the client to come into tension with the public interest, but a consumer-focused, market-driven system will find it hard intervene.  The LSB does discuss briefly education, training and quality assurance.  Research tends to point to standards of practice being learnt at work.  A focus on how legal service providers manage for and deliver quality and ethics will be crucial.  The consumer and the market won’t be likely to do that.  Will the LSB?

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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