Our society seems to be on a trajectory that is downgrading the traditional professions, including lawyers and doctors, to a point where they are unrecognisable to an earlier generation. In Sydney recently, an Australian lawyer told IP Draughts that part of the definition of a profession was that it regulated itself. Perhaps this was once an essential factor, but increasing moves towards independent regulation of professions in the UK make this definition highly suspect. Perhaps, though, the definition is correct, and the sorry reality is that there is no longer, or will soon not be, any legal professions in the UK. Instead there will be a range of “service providers” some of whom will be bound by externally-enforced rules of conduct, and some of whom will have no rules at all, other than general laws that come in from Europe, eg in the Services Directive.
Several factors conspire to make professions seem like a relic of the past. Mrs Thatcher started it, by liberalising the market for property conveyancing services, back in the 1980s, and introducing the paralegal-style qualification of “licensed conveyancer”. Subsequently, both advertising of legal services and referral fees were allowed, which led to ambulance-chasing personal injury practitioners, many of them not actually lawyers, but acting as referral agents for solicitors. Many solicitors would agree that referral fees are not a good idea, but it is largely out of our hands, and controlled by economists and competition authorities that tend to favour a free-for-all in legal services, and dismiss lawyers’ arguments to the contrary as the advocacy of vested interests.
At the same time, an increasingly consumerist approach in government policy-making has created pressures towards independent regulation of the professions. They even created a consumer panel of the Legal Services Board, whose chairman periodically rants about lawyers and seems to want to abandon all self-regulation.
Meanwhile, the Government has effectively abandoned the role of Lord Chancellor, who for generations has provided some political protection for lawyers (and more importantly,for the rule of law) from the short-term-populism of politicians, for whom lawyer-bashing always seems like a good vote winner. Or if not abandoned, at least downgraded the role to impotent irrelevance, by appointing non-lawyer, third-rate politicians to be Lord Chancellor. Contrast the present incumbent (who is he again?) with a former Lord Chancellor, Lord Hailsham. Hailsham may have been a bit of an upper-class twit and showman, ringing his bell at the Tory Party Conference in the early 1960s, but for a generation he was an effective Lord Chancellor, and as a former leading candidate for the party leadership, not a political third-rater.
These thoughts are prompted partly by an item that has been rumbling in the news for some months, concerning the practice of some UK banks and pay-day-lenders to send nasty letters to their debtors that appeared to be from external solicitors but were actually from in-house departments. For a time this seems to have been “standard practice” among some lenders. It seems that the stationery on which these letters were written sometimes used a fictitious name of a law firm. In at least one of these cases currently in the news, the Solicitors Regulation Authority is scratching its metaphorical head to know what to do about this disreputable practice, as the participants were not solicitors and therefore probably not within the SRA’s jurisdiction.
If we had stronger laws that prohibited a person from misrepresenting themself as a lawyer, this type of practice might never have developed. The UK rules have always been weak, though, focussing on titles and a very short list of restricted activities. The US rules have been stronger and more general, focussing on unlicensed practice as a lawyer, but may not be a good model to follow. The US rules may soon be relaxed in view of the pressure to open up the legal market there to new entrants. It is probably unrealistic to expect the current UK laws to be strengthened; the trend is in the opposite direction.
In IP Draughts’ view, consumers and corporate clients benefit from knowing whether they are dealing with a regulated professional, who is insured and subject to rules of conduct. Perhaps it is optimistic, in this de-regulated age, to hope that the professional will also have an ethos, learnt from, and reinforced by, his or her peers, that insists on levels of service and putting the client’s interests first. The best professionals will continue to stick with these values, even if the market is pushing them in a more selfish direction. Some consumers will always go for the cheapest service, and have no interest in the professional status of the service provider; for others, there is still a brand value attached to solicitors and barristers.
IP Draughts is not advocating a return to a world where solicitors live a cosy, protected life, buttressed by inflated fees on wills and conveyancing. Instead, he suggests a small change in direction to one where the Law Society takes back full control of the SRA, all future Lord Chancellors are experienced lawyer-politicians, and there is no further emasculation of the professions.