Legal services regulation: turning point, or point of no return?

Earlier this month, I was invited to give the Wickwire Memorial Lecture at the Schulich School of Law at Dalhousie University in Canada. Frederick B. (Ted) Wickwire QC, a graduate of the School, was the President of the Nova Scotia Barristers’ Society. He died in office at the age of 52 in 1991.

Ted Wickwire was noted for his commitment to public service and to uncompromising professionalism. Each year, a lecture is held in his memory, focusing on an aspect of professional ethics.

It was a great honour to deliver this year’s Lecture, albeit with the constraints of virtual presence. The full text of the Lecture is available for download here.

The Lecture presented an opportunity for me to reflect on some of the underlying themes of my independent review of legal services regulation in England & Wales. In particular, I explored the emerging and increasingly uncomfortable tension between regulation and professionalism.

This tension arises in part from the need to balance the interests of the public, consumers and the professions. It is also exacerbated by the continuing challenges around the world to self-regulation, and the difficulties of both representing and regulating professionals. With rising unmet need, and the consequences of Covid-19 changing the way in which consumers want legal services, from whom, in what form, and at what cost, the stakes are high.

To conclude the Lecture, I offered five fundamental principles for regulatory reform that might present a way of resolving the tension:

> promote the primacy of the public interest

> pursue minimum necessary intervention through targeted regulation

> leave scope and freedom for professions and professionalism

> focus on regulatory capture rather than regulatory independence

> ask ‘Why not?’ rather than ‘Why?’

As I said in the Lecture, there is no one best way to realise the goal of effective regulation. But there is a shrinking window of opportunity for legal professions to take a turning point – to engage with regulatory reform and so maintain some influence and authority over professionalism. Otherwise, some combination of clients, consumers, competitors, governments, legislators or supreme courts will inevitably rewrite the rules. And at that point lawyers may well have reached the point of no return – no influence and no choice.

The ethics of pro bono

A second nation-wide lockdown is now less than 48 hours away.  Many of our fellow citizens will as a consequence face unexpected and unwelcome legal issues, and I suspect many of their needs will be met through pro bono provision.  

I was therefore honoured and delighted to offer some opening thoughts this morning to a very important and timely seminar hosted by LawWorks and the University of Bristol as part of Pro Bono Week.  I was invited to share my reflections on the two-year Independent Review of Legal Services Regulation that I concluded in June and the associated landscape of legal professional ethics. Here are those reflections (also available as a PDF).

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An independent review of legal services regulation

The announcements are out, and the work has started!  I’m honoured to be leading a fundamental review of the current regulatory framework for legal services in England & Wales through the Centre for Ethics & Law in the Faculty of Laws at University College London.  Full details are available here.

The independent review is intended to explore the longer-term and related issues raised by the Competition and Markets Authority (CMA) market study in 2016, which concluded that the legal services sector is not working well for individual consumers and small businesses, and that the current regulatory framework is unsustainable in the long run.  It called for a review of that framework to make it more flexible as well as targeted at areas of highest risk where regulation is most needed.

The time for the review is right.  In the light of Brexit, ‘taking back control’ presumes full confidence in our domestic rule of law and legal institutions, as well as maintaining our performance and competitive position in the global economy.   The provision of effective and properly regulated legal services is critical to maintaining the rule of law, and the effective and efficient administration of justice.  It is also necessary for sustaining the UK’s position and reputation as a world-leading jurisdiction for the governing law of international transactions and for the resolution of disputes (though this already appears to be under some pressure as a result of Brexit).

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