Regulating the Legal Profession: '2020 vision'


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Presentation to the Regulating the Legal Profession Conference in Dublin, 25 November 2011

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Regulating the Legal Profession: '2020 vision'

  1. 1. 2020 vision?Understanding the role of legal education and training in regulating a liberalised legal services market Julian Webb Conference on Regulating the Legal Profession, University College, Dublin, 25 November 2011
  2. 2. Context: Legal Services Act 2007• Market liberalisation rather than deregulation• Facilitates market in regulation (competition between frontline regulators)• Regulatory objectives (s.1)• Section 4 duty: The [Legal Services] Board must assist in the maintenance and development of standards in relation to— (a) the regulation by approved regulators of persons authorised by them to carry on activities which are reserved legal activities, and (b) the education and training of persons so authorised. - cp: cl.9(2)(a)(ii) Legal Services Regulation Bill
  3. 3. The regulatory objectives (s.1)(1) In this Act a reference to ―the regulatory objectives‖ is a reference to the objectives of— (a) protecting and promoting the public interest; (b) supporting the constitutional principle of the rule of law; (c) improving access to justice; (d) protecting and promoting the interests of consumers; (e) promoting competition in the provision of services within subsection (2); (f) encouraging an independent, strong, diverse and effective legal profession; (g) increasing public understanding of the citizens legal rights and duties; (h) promoting and maintaining adherence to the professional principles.- Cp: cl.9(4)(a)-(f) – no reference to the rule of law, access to justice, diversity, or public understanding
  4. 4. David Edmonds - UpjohnLecture, November 2010 Announced regulators’ review of legal education and training Legal education and training is central to encouraging ‘an independent, strong, diverse and effective legal profession’. “[Workforce development] is about achieving a constant interplay between practice and education, with the two spheres in constant dialogue, each driving improvement and innovation in the other to the broader public good.”
  5. 5. Legal Education and Training Review• Joint project of BSB, IPS, SRA• Review of the regulation of E&T for the legal services sector - so different and wider• Commenced in May 2011; due to report in December 2012• Evidence-based approach• Driven by research team (of 6)• Consultation Steering Panel (CSP) chaired by Dame Janet Gaymer and Sir Mark Potter
  6. 6. LETR: phases and outputsPhases: Interim outputs: • Literature review • Briefing/discussion papers • Literature Review (draft Jan) • ‘Contextual analysis’ • First consultation paper (March) • Second consultation paper (July) • Workforce projection • Interim recommendations (Oct) and training needs (to 2020) • Recommendations Final report and recommendations (Dec 2012)
  7. 7. Where are we now? • Project team and infrastructure – including website at • Completing draft literature review and electronic bibliography using ‗Zotero‘ (future public resource). • Completing review of approved regulators‘ current training regulations. • Started surveying existing competence frameworks in the sector. • Commencing empirical work for Phases 2 and 3 (most of the fieldwork will not start before January). • ‗Pulse survey‘ of CSP views on LSA 2007. • Otherwise too soon to talk about findings.
  8. 8. LET as a regulatory tool – speculations and challenges• Complexity – range of issues which will each impact decisions on focus, form and reach of regulation.• Some key issues emerging: – In whose interest? – Assuring ‗competence‘ – Standardisation and reach – Proportionality of regulation
  9. 9. In whose interest?• Is LET regulation designed ultimately to protect the interests of – The profession? (maintain standards, but also protect status, control supply, limit competition from NQSPs) – The providers? (autonomy; need to maintain freedom of choice and competition in the market for legal education) – The consumers? (Which consumers? Students and trainees, or the ultimate users of legal services?)• The challenges of access, diversity and social mobility• Is this now the tiebreak question: what policy and regulatory choices are most likely to maximize net consumer welfare ? (cf s.1(1)(d) LSA 2007).
  10. 10. CSP pulse survey: average predicted impact of Legal Services Act Reforms (17 responses) OVERALL Consumers Law Students and Trainee Lawyers Educators (LLB Providers, GDL and ILEX) In-House Providers Large Regulated Providers Educators (BPTC and LPC) Paralegals and Unregulated Providers Third-Sector Providers Medium-Sized Regulated Providers Small Regulated ProvidersMAJOR NEGATIVE MINOR NEGATIVE NO MINOR POSITIVE MAJOR POSITIVE CHANGE CHANGE CHANGE CHANGE CHANGE
  11. 11. Assuring ‘competence’Tearing upassumptions: inthe real world... What about• Level of qualification Input vs output ‘Competence+’? may be only weakly correlated to • Too much focus on • PQ specialisation - a input , not enough step beyond competence regulation?• Relationship between on output? • to what extent do cost and quality is NOT • COBR and OFR regulators want to linear encourage• ‘Quality’ is more than competition on quality ‘technical’ as well as price? competence – soft skills, systems, etc
  12. 12. Standardisation and reach• How consistent are existing standards, and how much does it matter? – Does the current system focus too much on regulation of title, not activity (title as limited proxy for competence)? – What should the role of entities be (and function of entity regulation as regards training)? – Extension of training regulation into the unregulated sector?• What if we were to shift the emphasis towards ‗national‘, activity- based, standards? – Flexibility of training and widening access/diversity – Rationalisation and recognition of PQ specialisation (eg mapping against NQF levels) – Possibility of adoption by representative bodies in non-regulated workforce (voluntary self-regulation) – Competition between regulators? – Cost and complexity? – Impact on consumers ? – Challenge from title-based interests?• Links to proportionality…..
  13. 13. Proportionality• How to protect consumers without disproportionately restricting (supply-side) access to the marketplace – Cannot rely wholly on the market –weak demand side (in most vulnerable sectors) – Training (compliance) costs and quality: avoiding the ‗market for gold plate‘ as well as a market for ‗lemons‘• Less input regulation, but more monitoring/enforcement?
  14. 14. In conclusion (or not…)• 2020 vision: breadth and depth of focus• ―Once in a generation opportunity‖• Will it make a difference?• Gradualist approach or ‗big bang‘?• Implementation rests with the frontline regulators