LSB could pose risk to independence of legal profession, warns Law Society president

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By Legal Futures

25 May 2010

Heslett: LSB should not become active regulator to justify its existence

The Legal Services Board’s (LSB) powers to seize control of regulation from an approved regulator is unnecessary and casts a shadow over the independence of the legal profession, the Law Society president has claimed.

In a speech tonight to the Said Business School in Oxford, Robert Heslett highlighted the fact that the LSB has “a direct line to government” and “a growing belief amongst lawyers overseas that the Legal Services Act has created a structure which could in certain circumstances represent a real threat to legal independence”.

Mr Heslett said this belief “reflects a view that replacing the judiciary as final overseers of the legal profession with the LSB – with its substantial powers under the Act – is a threat to independence that should not be ignored”.

Though the idea that the LSB would take over regulation if it found a regulator to be inadequate “might seem to be a far-fetched circumstance”, Mr Heslett hinted that he feels the board is already overstepping its role as an oversight regulator.

“A careful watch must be maintained that undue powers are not misused,” he said. “One notes the tendency of the LSB to regard itself as shepherding a supposedly recalcitrant legal profession into modernity, although it is absolutely apparent that many lawyers are at the vanguard of innovation, whether it be in developing new legal services, or refining existing legal services…

“Quite simply, there is no evidence from at least the last 25 years that the legal profession has been unable to regulate itself in the best interests of the public, which begs the question of why the draconian powers of intervention were gifted to the LSB in the first place.”

He went on to question the need for the LSB after alternative business structures (ABSs) are up and running, by which time the approved regulators will be “fully experienced” and suggested that the link between oversight of the profession and the judiciary should be reinstated, perhaps by having a judge heading the LSB in the future. He added: “It is my view that it is vital for the independence of the legal profession that the LSB should not be allowed to morph into an activist regulator in order to justify its existence.”

Mr Heslett also called for a greater emphasis on ethics training for would-be lawyers, and highlighted concerns that some undergraduate law degrees are “simply not being rigorous enough”. He said this emphasised the need for a “comprehensive and wide-ranging review of our legal education system… not as solicitors, barristers or legal executives, but as a single legal profession comprised of many parts”.

However, Mr Heslett calmed fears about the potential impact of ABSs, drawing on the experience of New South Wales in Australia, where similar liberalisation has not proven to be a problem. “I am convinced that we have nothing to fear from ABSs,” he said.

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