Consumers back barristers providing litigation and the BSB regulating all advocates

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By Legal Futures

6 January 2011

Hayter: powerful incentive for lawyers

Barristers going into competition with solicitors to offer litigation services could reduce costs and make services “more efficient for consumers through packaged delivery”, the voice of legal consumers has said.

The Legal Services Consumer Panel also backed the Bar Standards Board (BSB) as the sole regulator of advocacy services, expressing doubt about the concept of regulatory competition which is implicit in the Legal Services Act 2007.

Responding to the BSB’s consultation on becoming an entity regulator, the panel said it welcomed the prospect of barristers offering litigation services, saying “the option of a one-stop shop advocacy and litigation service should have benefits for consumers by delivering greater choice and driving competition”.

The panel was “not convinced” that BSB had grounds to worry that increased overheads would increase costs to consumers and so reduce access to justice.

“Whilst barristers providing litigation may have increased overheads, the packaged costs of combining litigation and advocacy services should be no more than if the client had to pay solicitors for litigation services (with the associated overheads) plus advocacy from a self-employed barrister,” the panel said. “The change will enable barristers to compete with solicitor-advocates, who already offer packaged services.”

However, it warned that if barristers are to conduct litigation, the BSB “must introduce robust quality assurance measures” and supported requiring both accreditation and practical experience before any barrister is granted litigation rights.

At November’s Bar conference, Legal Services Board chairman David Edmonds spoke out in favour of the BSB as the sole regulator of advocacy services, and the panel has backed this view. “The panel supports the BSB’s proposal to become a specialist advocacy regulator,” the response said. “Ideally we would prefer the BSB to be the only regulator of advocacy services as we are sceptical that regulatory competition benefits consumers.

“While it is designed to facilitate an efficient regulatory regime and so minimise costs that are passed on to clients, practitioners are likely to be attracted to the lowest-cost option, which may provide insufficient consumer protection. This might lead to a race to the bottom.”

However, the panel acknowledged that regulatory competition “is a fact of legal services regulation” and urged the BSB not to be too restrictive in the business structures that it is prepared to regulate, otherwise advocates might be tempted towards other regulatory regimes. “Through its continued reluctance to regulate multi-disciplinary practices, the BSB is arguably being unduly cautious,” the panel said.

Meanwhile, the Legal Services Board has agreed to an application from ILEX Professional Standards that scraps an anomaly which prevented legal executive advocates from maintaining their rights after becoming partners in legal disciplinary practices.

The rules on legal executive advocates required them to be employed by legal practices which are authorised to provide litigation services, with solicitors or other authorised litigators, but this has now been amended to allow them to be partners too after IPS provided an assurance that the change would not enable legal executive advocates to practise independently.

Finally, the Legal Services Consumer Panel has reiterated its strong support for the publication of complaints against named lawyers and firms by the Legal Ombudsman in its response to the ombudsman’s consultation on the issue.

Panel chairwoman Dr Dianne Hayter said: “Publishing complaints data about law firms lets the Legal Ombudsman go beyond helping the individual who complained, to enabling all consumers to choose legal services with their eyes open and giving a powerful incentive to all lawyers to maintain high standards.

“Future users have a right to know if lawyers have a history of things going wrong. Making complaints data anonymous would put a brake on competition and unfairly protect the minority of poor lawyers who let consumers down.

“It is important to avoid unintended consequences but none of the objections put forward by the legal profession are convincing or evidence-based.”

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