Trying to make sense of reserved legal activities

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3 June 2011

Posted by Neil Rose, Editor, Legal Futures

Regulatory tool kit: reservation to lawyers is probably at the bottom of the LSB's bag

One benefit, such as it is, of being a self-confessed legal regulation nerd is that I was invited to attend a Legal Services Board/Legal Services Institute discussion on reserved legal activities the other week.

It wasn’t entirely clear whether I was there as a journalist (the event was under Chatham House rules and I was the only hack present) or simply as someone who has shown more interest in the topic than is strictly healthy.

The event was part of the early stages of the LSB’s major project to rationalise the scope of regulation.

This will examine regulation and reservation, and propose “a rational and intellectually sustainable framework for assessing whether and where regulation is required”.

The work being done on whether will-writing should become a reserved activity will provide a case study of how the LSB should go about this. It goes from looking at what the problem is, examining the evidence supporting that, and then applying the right regulatory tool if necessary.

Next month we will probably have sight of an LSB discussion paper about its approach to making regulatory decisions, as well as its response to the consumer panel’s advice on will-writing.

So back to reserved legal activities. I have written before about how crucial the short list of reserved activities is to the future of the profession – it is the only thing that sets lawyers apart from non-lawyer pretenders eyeing up their market. No wonder there are calls to expand it.

So regulating will-writers, say, may seem black and white to many lawyers – some people suffer at the hands of incompetent, unqualified will-writers, meaning regulation is a must, right? But it is a far more complex picture. The LSB, for example, is debating whether introducing regulation and its attendant costs would actually cause more consumer detriment (by discouraging people from making wills in the first place) than not reserving will-writing.

And even if some form of regulation is required, I suspect that reserving an activity solely to lawyers would be the last regulatory tool the LSB reaches for. It is far more likely to favour activity based regulation and a variety of routes by which a person could be deemed competent to write a will, whether by completing a general qualification like becoming a solicitor, or through a much more focused qualification enabling them to do that job and that job alone.

As an aside, there was a recognition during the discussion of a significant crossover with the education and training review, and other reviews of CPD. A capital markets lawyer at a top City law firm, by virtue of having qualified as a solicitor umpteen years ago, is competent to convey my house in that he can conduct reserved instrument activity. But of course he is not remotely competent to do the actual job. Do we have the best approach to ensure competence?

Anyway, one other issue of interest that came out of the discussion was the possibility of entities being granted the right to conduct reserved activities.

I’m still working through the implications, but I think it could make life easier for non-lawyer entrants to the market. It would presumably put the emphasis on management, training and supervision, rather than necessarily having lots of legally qualified staff. It would be an outcomes-focused approach – how the job is done, rather than who exactly does it. On that basis, it is an idea that will alarm the profession a very great deal.

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