Outcomes Focused Regulation: Growing Pains?

There’s an eloquent critique of OFR from a senior practitioner (Nicky Richmond of Brechers) on the Lawyer’s webpage. I’m in the agnostic camp (thank goodness) on OFR.  I see its benefits and its risks.  And I recognise in Nicky Richmond’s  piece the concerns the kinds of things I would be complaining about if it was being done in academia (analogous things have in fact been going on for some time).  For all that I sympathise, isn’t there a schizophrenia in the reaction too?  We want self regulation, but we want someone else to do it, we want someone to tell us what to do, but when they do we don’t like it?  We don’t want one size fits all, but nor do we want complexity.  It’s a conundrum which OFR seeks to ‘solve’ by making firms more responsible for their own approach and thus making the rules more flexible.  Whether it works will depend on how the very difficult role of the COLPs plays out and whether OFR can be enforced when it needs to be.  Judges, like solicitors, like rules and this may make life tricky for the SRA when it comes to policing breaches.  Equally, perhaps more importantly, the balancing the need for collaborative relationships between firms and COLPs and between firms and the SRA and enforcement reactions when appropriate will be very important.  The SRA will say, with some justification, that usually they seek a broader and much less hostile engagement than through enforcement.  Whether they can achieve the appropriate balance remains to be seen.

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