Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘legal profession

Regulating the legal profession in England and Wales – new report from the Competition and Markets Authority

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Just before Christmas 2020, two important reports were published about how the legal professions in England and Wales should become more competitive and do more to meet unmet legal need.

I consider first a report from the Competition and Markets Authority which, on Dec 17 2020, published findings from its assessment of the impact of its earlier legal services market study in England and Wales. The CMA’s assessment of changes so far made in the legal services sector found some positive developments but concludes that further progress is needed.

The CMA recommends that the Legal Services Board, working with other regulators in the sector, continues to build on the reforms made so far to improve transparency of information that can help consumers make informed choices. It also states that the LSB must address some aspects of the market study recommendations that still require progression, such as providing more information on quality.

Alongside this, the CMA repeats its call for the Ministry of Justice to undertake a review of the Legal Services Act 2007. This seems unlikely to be progressed in the short term. The CMA is broadly supportive of Professor Mayson’s Review of Legal Profession regulation which was published earlier in 2020.

In the meantime, the CMA advocates that the Ministry of Justice and the Legal Services Board take some shorter-term steps which will deliver regulatory reform in stages.

These are that:

• The MoJ should create, or empower the creation of, a mandatory public register for unauthorised providers of legal services.
• The LSB should carry out a review of the reserved activities.
• The LSB should evaluate the impact of the revised Internal Governance Rules (designed to ensure adequate separation of the regulators’ representative and regulatory functions) before deciding on further action.

While the legal profession as a whole may not regard this report as an entirely welcome Christmas present, it seems clear that the CMA intends to keep up the pressure on the legal profession. More forward-thinking practitioners may however feel that a positive response to the report’s recommendations could create opportunities for developing new ways of working that will benefit both their bottom lines and society more broadly.

I noted Professor Mayson’s report (and his summary of it) at https://martinpartington.com/2020/06/11/legal-services-regulation-the-final-report/

The CMA report is available at https://www.gov.uk/cma-cases/review-of-the-legal-services-market-study-in-england-and-wales#review-report

I will comment on a new report from the Legal Services Board in a separate item.

Solicitors’ Qualifying Examination – starting 2021

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After many years of gestation, at the end of October 2020 the Legal Services Board gave its approval to proposals for the new Solicitors’ Qualifying Examination, due to come into force in September. It will only apply to students starting their legal studies after that date. Those currently reading law or in legal training will have 11 years to complete their route to qualification – using the existing channels.

In outline, the Solicitors Qualifying Examination (SQE) is a single, national licensing examination that all aspiring solicitors will take before qualifying. From 1 September 2021 to qualify you will need to:

  • have a degree in any subject (or equivalent qualification or work experience – for exampe through an apprenticeship);
  • pass both stages of the SQE assessment – SQE1 which focuses on legal knowledge and SQE2 on practical legal skills;
  • have two years’ qualifying work experience (which can be undertaken in up to 4 different locations and at different times); and
  • pass the SRA’s character and suitability requirements.

The SRA’s two stated objectives for the new framework are:
• greater assurance of consistent, high standards at the point of admission
• the development of new and diverse pathways to qualification, which are responsive to the changing legal services market and promote a diverse profession by removing artificial and unjustifiable barriers.

All new entrants – even those with law degrees – will have to pass both the SQE1 and SQE2. Current arrangements – whereby students who read law at university gain exemption from Part 1 of the Law Society Finals – are abolished.

The SRA will not regulate, accredit or endorse training providers or organisations. Nor will it have any role in approving, endorsing or overseeing the training courses or materials, or their quality. It merely provides a list of providers which is intended to help potential SQE candidates to find training. By encouraging competition between providers, the SRA hopes that the costs of such courses will be reduced.

SQE1 involves a test on the application of Functioning Legal Knowledge by answering two 180 question multiple choice assessments papers.

SQE2 involves assessment of practical legal skills listed as: client interviewing with linked attendance note/legal analysis; attendance note/legal analysis; advocacy; case and matter analysis; legal research and written advice; legal drafting and legal writing.

In granting its approval, the Legal Services Board recognises that this will be a new scheme that will not be entirely risk free. Thus the LSB has drawn attention to a range of issues that the SRA will need to manage carefully to realise the full benefits of the changes. The SRA has undertaken to:

  1. Monitor and evaluate the impact of the SQE and conduct an initial review within two years of implementation.
  2. Commission independent research in 2021 to investigate the underlying reasons that candidates from some protected minority groups did not perform as well as other groups in the SQE pilots. The results of the first cohort of the SQE will inform this research.
  3. Publish comprehensive guidance on qualifying work experience for candidates and firms.
  4. Continue to demonstrate openness and transparency as it implements the SQE. This includes publishing guidance for students on the different choices of SQE training available and data on performance in SQE assessments, as well as pass rates for candidates by the SQE training provider that they attended.

The hoped-for benefits for the new scheme are that:

  • costs will be less than existing routes to qualification;
  • a more diverse range of people will enter the profession;
  • those coming new to the profession will be better prepared for work as a solicitor.

What is unknown is whether law firms will recruit from those with different educational backgrounds or practical experience and therefore whether these new requirements will increase diversity in the solicitors’ profession.

Details of the scheme are at https://www.sra.org.uk/students/sqe/

The LSB decision is at https://www.legalservicesboard.org.uk/news/legal-services-board-approves-significant-changes-to-how-solicitors-qualify

Covid 19 and the English Legal System (12): impact on legal practitioners

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One impact of Covid 19 has been the exponential rise in the numbers of legal professionals who are currently working full-time from home. An obvious question is what will be the long-term impact of this development? When the pandemic is under control, will lawyers go back to their offices, as before? Or will there be a ‘new normal’ in which legal professionals will increasingly work from home, making only infrequent visits to their offices?

Roger Smith, who has for a number of years been writing on the impact of new technologies on the provision of legal services, has just published a really interesting blog of what he regards as some of the key developments. He looks not only at what has happened in the UK but draws on reports of developments in other jurisdictions.

For the short term, his conclusion is that, in general, legal service providers have adapted pretty quickly to the new environment – large corporate firms possibly more quickly than less well-funded practices.

One question for the future that he raises is what changes in management styles and management information systems will be required if high percentages of staff continue to operate from home.

See https://law-tech-a2j.org/digital-strategy/covid-19-technology-and-the-access-to-justice-sector-the-first-phase-remote-working/

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Written by lwtmp

July 13, 2020 at 3:37 pm

Lawtech: support for innovation in the delivery of legal services

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I have recently posted a number of items relating to the application of information technologies in the delivery of legal services.

Another source of information and support for the development of technology in the delivery of legal services may be found at Lawtech – part of a range of initiatives that have been formed under the overall Tech Nation label. (Other activities of Tech Nation relate to, for example, the finance sector, AI, cybersecurity, the net zero economy.)

The objective of the organisation is to support new companies wanting to develop new services in the areas covered by Tech Nation. Considerable innovation has occurred in recent years in the ways in which financial services are delivered. The challenge is to see how the provision of legal services can similarly be transformed.

The Technation website states:

The legal and tech community have the opportunity and responsibility to restructure and reinvent legal services, to meet and exceed the evolving demands of business and society, in our digital world.

LawtechUK is an initiative that will help transform the UK legal sector through tech

This work is supported by a Lawtech Delivery Panel (LTDP), chaired by Christina Blacklaws, a former President of the Law Society.

This is a government-backed initiative bringing together legal sector leaders and experts from government, the judiciary, academia and industry in a single forum, to support the digital transformation of the UK legal sector. The LTDP act as an important advisory board to LawtechUK

An introduction to LawTech may be found at https://technation.io/lawtechuk/

Law tech companies that have been supported through Tech Nation are listed at https://technation.io/lawtechdatacommons/lawtech-startups-and-scaleups/

Further impetus for these developments has been given by an important report published by the Law Society in October 2019 on the importance for law firms of Law Tech. In particular, it offers encouragment to solicitors in small firms and sole practitioners to take Lawtech seriously.

The Law Society Report may be downloaded at https://www.lawsociety.org.uk/campaigns/lawtech/guides/introduction-to-lawtech

 

 

 

Re-thinking legal services regulation

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I have reposted this excellent blog by Stephen Mayson, who is undertaking very important work on the need to further reform the regulatory structures for the legal professions.

StephenMayson

My interim report for the Independent Review of Legal Services Regulation in England & Wales is published today (available here).  This post is extracted from it.

While the reforms of the Legal Services Act 2007 have been mainly beneficial overall, that legislation might best be characterised as an incomplete step towards restructuring legal services regulation.

For reasons that are understandable, it did not fully follow through on some key elements of the regulatory structure.  These include: review and reform of the reserved legal activities (those few activities that must be provided by lawyers); the known regulatory gap (as a consequence of which the non-reserved activities of lawyers are regulated, but those of non-lawyers can legally be provided but cannot be regulated – to the potential detriment of consumers); and the separation of regulation from professional representative interests.

This lack of follow-through has led to increasing challenges to the integrity…

View original post 1,603 more words

Written by lwtmp

September 19, 2019 at 11:19 am

Innovation and the use of technology in the provision of legal services

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The Legal Services Board has just (November 2018) published its latest detailed picture of levels of innovation and use of technology in legal services in England and Wales.

This report looks at the attitudes of legal services providers, sets out the benefits from innovation and considers the perceptions of the main enablers, including the impact of regulation.  The headline findings are:

  • the legal sector makes use of a variety of technologies but the use of services such as Blockchain or predictive analytics are, as yet, rare
  • overall levels of service innovation are unchanged since the first wave of the research three years ago
  • ABS, newer providers and larger providers have higher levels of service innovation.

Although putting a positive spin on the outcomes of the survey, I cannot help thinking that the LSB may actually be rather disappointed at the outcomes of the survey – given all the talk that there has been about the importance of innovation and new technologies.

My impression is that change is happening, but that it will much longer for the full benefits claimed for the use of new technologies to be realised in practice.

You can read the full report at https://www.legalservicesboard.org.uk/news_publications/LSB_News/PDF/2018/20181128_Innovation_Driven_By_Competition_And_Less_Hindered_By_Regulation.html

 

 

 

 

How diverse are law firms?

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One of the challenges facing the legal profession is trying to ensure that it offers opportunity to all. For the last four years, the Solicitors’ Regulation Authority has conducted surveys which seek to measure diversity in law firms. The most recent report was published in February 2018. While data for any one survey year may not reveal very much, the creation of comparable datasets over a period of years can reveal trends.

The survey looks at a number of characteristics to assess the extent to which law firms offer diversity in employment. This note reproduces and highlights some of the primary factors identified in the survey.

  1. Gender

Women make up 48% of all lawyers in law firms compared with 47% on the overall UK workforce.

Looking at seniority, in 2017 women make up 59% of non-partner solicitors compared to just 33% of partners (though this is up from 31% in 2014).

In the largest firms (50 plus partners) 29% of partners are female. The proportion of female partners has risen steadily from 25% in 2014 to 29% in 2017.

There is a greater proportion of female lawyers in mid-size firms – women make up 54% of all lawyers in firms with six to nine partners and those with 10 to 50 partners. The highest proportion of female solicitors is in firms which have six to nine partners. In these firms, two thirds (66%) of solicitors are female and this has grown over the past four years (from 60% in 2014). Over a third of the partners in these mid-size firms are female (37%) and this has also grown from 31% in 2014.

There are variations by the type of legal work undertaken by firms. While overall women make up 48% of all lawyers, 52% of lawyers in firms mainly doing private client work are female, whereas 40% of lawyer in firms mainly doing criminal work are female.

  1. Ethnicity

There has been an increase in the proportion of black, Asian and minority ethnic (BAME) lawyers working in law firms, now one in five lawyers. This is up 6%, from 14% in 2014 to 21% in 2017.

This increase is largely due to the rise in Asian lawyers in the profession, up from 9% in 2014 to 14% in 2017. Asian lawyers make up two thirds of all BAME lawyers.

Black lawyers make up 3%, which has risen by 1% since 2014 and now reflects those in employment in the UK (3%).

Unlike the profile for women, there is very little difference by seniority among BAME lawyers, 21% of solicitors are BAME compared to 20% of partners.

However, differences become apparent when the breakdown of partners in firms by size is considered. The largest firms (50 plus partners) have the lowest proportion of BAME partners – only 8% which has risen by 1% since 2014. This contrasts with one partner firms, where just over a third (34%) of partners are from a BAME background.

There are differences in the proportion of BAME lawyers according to the type of legal work undertaken by firms. Firms mainly doing criminal work and those mainly doing private client work both have a higher proportion of BAME lawyers, 33 and 37% respectively. Firms doing a mixed range of work and firms doing mainly corporate work both have the lowest proportion of BAME lawyers, 12 and 19% respectively. 

  1. Social Mobility

The survey used attendance at a fee paying school and whether someone was the first in their generation to attend university, as a proxy for social mobility in this survey.

  • Attendance at fee paying schools

There is a significant gap between lawyers and the general population. 22% of all lawyers attended fee paying schools, compared with 7% in the general population. There has been no change since 2015, though the proportion of lawyers attending fee paying school fell by 4% between 2014 and 2015.

There is a difference between partners (24%) and solicitors (20%) who went to fee paying schools. The proportion of partners from fee paying schools in the largest firms (with 50 plus partners) has fallen from 43% to 36% since 2014

The firms which mainly do corporate law have the lowest proportion of state educated solicitors at 56%. Three quarters of solicitors in firms doing mainly criminal and litigation work are state educated (77 and 76% respectively) compared to just over half in corporate firms (56%).

  •  First generation in the family to attend university

In contrast, there is a higher proportion of partners who were the first generation in their family to attend university (59%), compared to 49% of solicitors.

The proportion of partners who were the first generation to attend university is highest within the smallest firms and this decreases with size of firm. This ranges from 63% of partners in one partner firms, to 52% in firms with 50 plus partners.

Only 5% of lawyers did not attend university at all. This has fallen since 2014, when 7% did not attend university.

The principal conclusion to be drawn from these data is that while some increase in diversity can be seen, the legal profession can and should still do more.

Full details of the survey and its findings are at https://www.sra.org.uk/sra/equality-diversity/key-findings/law-firms-2017.page#

Written by lwtmp

March 3, 2018 at 12:41 pm

Competition in Legal Services: new report

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The Competition and Market Authority Final Report on legal services was published in December. Its interim report was noted in this blog in July 2016.

The CMA found that competition in legal services for individual and small business consumers is not working as well as it might. In particular, there was a lack of digital comparison tools to make comparisons easier for consumers. Lack of competition meant some providers can charge higher prices when substantially cheaper prices are available for comparable services.

In response to these findings, the CMA set out a package of measures which challenges providers and regulators to help customers better navigate the market and get value for money. These changes were drawn up after discussions with key stakeholders, including the 8 frontline legal regulators, and will be overseen by the Legal Services Board, which will report on progress.

They include:

A requirement on providers to display information on price, service, redress and regulatory status to help potential customers. This would include publishing pricing information for particular services online (only 17% of firms do so at present).

Revamping and promoting the existing Legal Choices website to be a starting point for customers needing help, information and guidance on how to navigate the market and purchase services.

Facilitating the development of comparison sites and other intermediaries to allow customers to compare providers in one place by making data already collected by regulators available. At present only 22% of people compare the services on offer before appointing a lawyer.

Encouraging legal service providers to engage with feedback and review platforms to ensure that customers can benefit from the experience of others before making their choice.

Recommending that the Ministry of Justice looks at whether to extend protection from existing redress schemes to customers using ‘unauthorised’ providers.

In addition, the CMA considered the impact of legal services regulation on competition. The CMA found that whilst the current system is not a major barrier, it may not be sustainable in the long term. In particular, the framework is not sufficiently flexible to apply proportionate risk-based regulation which reflects differences across legal services which could harm competition. The CMA therefore also recommends that the Ministry of Justice reviews the current framework to make it more flexible and targeted at protecting consumers in areas where it is most needed.

The Legal Services Board has welcomed the report and announced that it will publish its response in due course. The Ministry of Justice response is also awaited.

For more detail https://www.gov.uk/government/news/cma-demands-greater-transparency-from-legal-service-providers

Provision of legal services: accountants getting in on the act!

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Competition in the legal services market will hot up even more in 2014, following the announcement that the Legal Services Board (LSB) has agreed that the Institute of Chartered Accountants in England and Wales (ICAEW) should be a regulator of probate services and also licensing authority for Alternative Business Structures (ABS), subject to approval from the Lord Chancellor.

This is an important step by the Legal Services Board in opening up the provision of legal services. In making this recommendation, the Legal Services Board has recognised that consumers can receive legal services relating to probate work from appropriately regulated ICAEW Chartered Accountants that are of equal quality to traditional legally qualified providers.

It has also recognised that ICAEW is a suitable body to licence ABSs which will facilitate the creation of new business structures between lawyers, accountants and other professionals (such as Independent Financial Advisors).

For initial information, see http://www.icaew.com/en/technical/legal-and-regulatory/legal-services-act/alternative-business-structures

Written by lwtmp

January 1, 2014 at 11:05 am