The 19th century American writer and philosopher Henry David Thoreau once offered the view that:
“Any fool can make a rule
And any fool will mind it.”
While I wouldn't for a moment suggest that the LSB has suddenly discovered anarcho-primitivism as its guiding principle, there is much in Richard Moriarty's recent interview with Legal Futures to suggest that we will shortly enter an unprecedented phase of deregulation in the world of legal services. And it is perhaps not too fanciful to see a little echo in this of Thoreau's call for citizens and civil organisations to find a looser arrangement with the dead hand of authority.
How then to achieve a legal services environment that achieves Mr Moriaty's expressed aim to increase innovation, reduce the cost of regulation and meet the unmet need for legal advice in the market?
Well firstly, if fewer rules are the answer, then perhaps the most obvious place to start might be a radical take on the number of legal regulators we need.
We have already seen the SRA move to liberalise its training regime, to a degree that might in my view call into question whether there is any meaningful distinction between the training paths of solicitors and legal executives. Combined with the fact that CILEX can now authorise individuals and authorise to conduct reserved legal activities, one might reasonably ask what continuing rationale, economic, historic or social, there is for separate professional titles, regulators and rules in legal services, particularly in the areas of conducting litigation, probate or reserved instrument activity. It is worth recalling too that CLC can also now authorise probate practitioners, whether or not they are also licensed conveyancers. This is another powerful indicator that the legal regulators need no longer be constrained by their particular professional title.
Part of the problem in any restructuring of legal regulation in England and Wales is the historical phenomenon that @StephenMayson identifies as the "tenuous foundations" of the Legal Services Act 2007. Legal services provision has historically been restricted (and regulated) by reference to the reserved legal activities. Most obviously this prompted the formation of separate professional identities for barristers (for advocacy), notaries (for notarial activity) and the solicitors' profession (for just about everything else).
This division of the legal professions into a multiplicity of notional specialisms begins to look increasingly archaic in a marketplace where (other than at the Bar, perhaps) individual competence or reputation is subservient to the firm's offering and/or reputation.
Nor is it at all clear that competition between the regulatory "brands" advances the public interest in any way. Many firms choose to self-identify as "lawyers" precisely because the distinction between solicitor, barrister, legal executive, notary or patent agent is entirely lost to their clients and the public at large. If asked, those clients would surely only require that those who advised them were competent and behaved ethically. Their individual title clearly does not of itself guarantee this.
So if the professional silos in which we are currently immured are at least in part an expression of regulation by reserved legal activities, perhaps we should seek (as Stephen Mayson has suggested) to do away with the latter, or at least reduce their link with the professional titles once and for all. Regulators, or preferably a single regulator, might then license firms to offer all reserved legal activities. Specialty regulators - the Law Society, CILEX or the Bar amongst others - would offer basic and specialist training as well as professional development, in the same way as the medical Royal colleges.
This model may well have its difficulties - the Bar in particular might point to the fact that its reputation for independence has been underpinned by the traditional self-employed business model. But even at the Bar, such conventions are being eroded, as witnessed by the number of barristers seeking to incorporate under the Bar's current entity regulation rules.
Contrary to his reputation as an inspiration for anarchist thought, Thoreau also wrote: "I ask for, not at once no government, but at once a better government."
So: fewer regulators, fewer rules, a clearer structure for legal services regulation anyone?
Legal regulators need to justify the continuing existence of their rules, and not wait for others to argue that they are not needed, the chief executive of the Legal Services Board (LSB) has said. In his exclusive first interview since taking up the post, the first part of which was published yesterday, Richard Moriarty also urged the legal profession to “redouble” its efforts to innovate in a difficult fiscal environment where there is also substantial unmet legal need.