Regulation: from infection to inflection point

Here is a fascinating podcast: a conversation between Jordan Furlong (guest) and Professor Mike Madison of the University of Pittsburgh School of Law (host) on the future of law, re-regulation, access to justice, and the rule of law. Over many years, Jordan has perfected the gift of identifying nails in the legal services sector and then hitting each of them firmly on the head. This episode has a good number of those nails. In this post, I pick up on some of the themes it explores.

The conversation turns at one point to the experience of the legal services regulatory reforms in England & Wales. The effects of our reforms are described by the host as “somewhat disappointing” in terms of diversifying the range, quality and pricing of legal services. It’s a view – variously expressed – that I have heard many times from across the Atlantic in recent years. But, as I said in a recent lecture and post, it essentially substitutes an access to justice test to measure the success of reform when that was not its principal objective.

There are some material differences between the regulatory structure in England & Wales and those that are normally found in north America. First, we already have independent regulation (through the Legal Services Board and front-line regulators), whereas in the US it is typically the state supreme courts that retain regulatory oversight and in Canada the law societies that retain the power of professional self-regulation.

Second, the US has the ‘unauthorised practice of law’. This maintains a professional monopoly over legal services for lawyers and excludes virtually all other alternative provision. We have the limited reserved legal activities. Yes, once authorised for a reserved activity, all legal services provided by a lawyer are then regulated. But if alternative providers don’t need or want to provide reserved legal services, they cannot be subject to our sector-specific regulation. Unlike the US, we therefore have a large, increasing but currently unregulated sector.

Jordan and Mike talk about where the pressure will come from (consumer demand as rising water being held by a dam that will eventually burst, or innovative providers increasingly chipping away at the dam to let some of the water/demand through). I agree with Jordan that it will be outside actors who drive most change in the sector – whether those actors are government or ‘alternative’ providers. The bigger difference in the UK is that these innovative and alternative providers have the entire unregulated (non-reserved) arena of legal services to aim for.

It is broadly true that, if attention from abroad is focused on changes within the regulated legal services sector, there will be little to observe by way of increased competition, rising quality, falling prices, or greater ‘access to justice’ that can be attributed to the Legal Services Act 2007. This is the result of a combination of conservatism, risk-aversion and reluctance to innovate. But if that attention were focused on the unregulated sector, the picture could look very different in that consumers now have many more options than they used to for access to legal services and products (we don’t have hard metrics on this, sadly, because inevitably there is no oversight body that can collect data: but absence of evidence is not the same as evidence of absence).

As Jordan points out, awareness and capacity on the consumer side of the dam is limited (often including relatively sophisticated clients, too): “We have conditioned the legal market to a very low level of expectation…. We have set the bar so low in terms of expectations for the legal system that people don’t realise they should and can demand more”. There is definitely scope to meet the increasing and largely unmet legal needs of the citizens in all developed economies that the organised and regulated legal professions seem content to ignore or under-value as a market for their services.

Earlier in the episode, Jordan touches on a thread that, in essence, asks ‘What is the purpose of Law?’ and hopes that we can somehow reconnect the regulation of legal services with this purpose. It prompted me to re-read another lecture that I gave in 2013, and much still resonated. To make this reconnection, we have to focus on regulating legal services, not lawyers. And we then have to focus on the interests of those who are served (clients and society), not those who are serving (providers). It is this conflict of interests that means that self-regulation is ultimately doomed.

We also need to adopt a broader notion of competence in the provision of services. Not surprisingly, self-regulation tends to emphasise competence in the law. As I said in the 2013 lecture:

“The practice of law requires competence, though not simply technical competence in the law. Lawyers also need the practical competence and experience to apply the law in context and in accordance with law’s own procedures (say, in relation to dispute resolution or various property registrations).”

I would also add at this point that practical competence also incorporates consciously recognising the needs of others through the empathy and emotional cognition that Jordan mentions. Without it, advice could be technically correct but practically useless – because it ignores the situation, vulnerability or underlying needs of the client concerned.

I continued:

“They also need ethical competence to abide by the expected standards and behaviour of privileged practitioners. Finally, they need business competence to run a financially stable, profitable, efficient and compliant organisation that provides quality and good-value services to clients.”

As Jordan rightly says, this range of competence raises some fundamental questions about legal education and training, and the role of law schools as well as of lawyer licensing and regulation. If we are to answer these questions, we cannot afford to ignore or sideline any of the relevant stakeholders.

Lawyers will often resist calls for reform with the refrain, “Now is not the time”. For those lawyers, now will never be the time. To those of such a mindset in the UK, I would ask, ‘Why is it different here to, say, Utah, Arizona, British Columbia, and Ontario, where now has very definitely become the time?’ When citizens are under-served or exposed to potential harm, surely the interests of incumbent providers can never outweigh the need for action.

Undoubtedly, the Covid-19 pandemic has both forced and encouraged consumers into different ways of accessing legal services and products, and lawyers into different ways of providing them. The actuality or possibility of infection has already driven change in some aspects of the legal sector. As the momentum for reform gathers pace around the world, infection is giving way to an inflection point. The times they are a-changing – and changing now. We need to make sure that the consequences of change don’t expose consumers to the potential for greater harm or unintended – and unregulated – consequences.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s