Clementi 10 years on (and now for the next 10)

This month marks the tenth anniversary of the publication of Sir David Clementi’s final report on the regulatory framework for legal services in England & Wales.  How time flies!  The report is still a good read, and a helpful reminder of what needed to change – and why.

The report laid the foundations for the Legal Services Act 2007 (even though the Act went further on alternative business structures than Sir David was willing to recommend).  Its principal aims can be summarised as:

  • creating the Legal Services Board and establishing the principle of regulation that is independent from professional representation
  • improving the way in which – and the speed with which – complaints against legal services providers are handled, including setting up the Office for Legal Complaints and the Legal Ombudsman
  • liberalising the business structures through which lawyers can operate by permitting ownership and investment by individuals who have not qualified as lawyers, and allowing legal businesses access to external capital.

All of these primary objectives have been achieved – more or less.  So what now?

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The future for legal services regulation

Introduction

Let me begin with a disclaimer. I hold a number of non-executive and advisory appointments with various organisations. What I say here represents my own thoughts and should not be attributed in any way to any of them.

In addressing the fascinating issue of the future for legal services regulation, I confess that I am starting from a possibly contentious proposition: that the current framework is still essentially founded on a Victorian guild and apprenticeship model.

Despite Sir David Clementi’s recommendations ten years ago for a new regulatory approach, unfortunately – though our structure has certainly been reconditioned – it is not as good as new. It is perhaps worth reminding ourselves that his proposals were not as radical as the provisions of the Legal Services Act 2007 itself (in that his views in relation to external ownership and multidisciplinary practice were more conservative than the Act). And so, in a strange twist, the changes in the legal services market heralded by Sir David’s report and enabled by the Act have resulted in a regulatory framework that is not truly fit for the purpose of regulating the liberated market that they have created.

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Restoring a future for law

I was privileged earlier this month to be invited to deliver the keynote address at the 2013 Futures Conference organised by the College of Law Practice Management and held at the Chicago-Kent College of Law.  My theme was the future of law.  The speech is available as a video (starting about 15 minutes in and with microphone on at around 16:30 minutes!).  However, I also thought it would be worth writing it up as a paper (which is not a direct transcript).  It’s available here.

In summary, the paper addresses three themes: (1) What is Law for?  (2) What are lawyers for?  (3) The Future.  The first two questions to my mind provide necessary answers to the fundamental question, What next for Law?  For each theme, I suggest a proposition.  The substance of the argument is that both law and lawyers have lost sight of their true purpose and that reconnecting with both is essential to enabling a meaningful and worthwhile future for law.

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