Posted by Neil Rose, Editor, Legal Futures
Here’s a question that’s been bothering me of late – what, exactly, is a quality legal service? You’ll have noticed that this phrase has become so common that it no longer requires an adjective (unless it’s poor quality). Many seem to think that if you say often enough that you provide one, it must be true.
It has come to the fore with the debate over criminal legal aid. First there is the Quality Assurance Scheme for Advocates (QASA). This elides ‘quality’ with competence. “The aim of QASA,” says the application to the Legal Services Board for approval of the scheme, “is to assess and assure the competence of all advocates conducting criminal advocacy in courts in England and Wales.”
Then there is the widely derided paragraph 23 of the Ministry of Justice’s impact assessment for its price competitive tendering proposals: “Client choice may in certain circumstances (where quality is easy to measure and clients have good information about the relative effectiveness of different providers) give an incentive to provide a legal aid service of a level of quality above the acceptable level specified by the LAA [Legal Aid Agency], as firms effectively compete on quality rather than price.
“The removal of choice may reduce the extent to which firms offer services above acceptable levels. We will ensure that quality does not fall below acceptable levels by carefully monitoring quality and institute robust quality assurance processes to ensure it does not fall to an unacceptable level.” But what is an above-acceptable level?
Quality is generally defined in a way that is hard to pin down. In its recent consultation garnering views on alternatives to PCT, the Law Society said: “Every practitioner believes that they deliver a quality service. Many of them will also point to other practitioners whom they believe do not. This begs two questions. What do we mean by quality? And what level of quality can reasonably be expected given the rates the government is prepared to pay? Whatever solution the government comes up with for 2015, there must be a clear answer to these questions.
“In our view, the essential indicators of quality are:
- The knowledge, skills and experience to deal competently with client’s case, providing appropriate advice and working properly with others in the system to ensure that the client’s case is well prepared and presented;
- The resources to undertake the necessary work on behalf of the client.”
On this definition, quality again appears to equal competence. But competence, it appears, is not enough. QASA does not reward excellence, its critics say. The lowest common denominator will become the norm, not very high standards.
So the question is where that denominator is set. At the risk of sounding naïve, if you have the knowledge, skills and experience to handle a particular case, should we not be happy with that? Is that not a high enough standard? Is that not, in fact, what every lawyer is professionally obliged to ensure? And how does one define what it is that the biggest-hitting QC brings above and beyond that?
In fact, if the Bar were concerned to ensure that the very best barristers were available to all defendants no matter what, maybe it should not have made an exception to the cab-rank rule for publicly funded criminal and family law work a decade or so ago.
The Legal Services Consumer Panel says quality “combines up-to-date legal knowledge and skills with good client care to deliver advice in a way that is useful”.
This explicitly brings service quality into the mix, something non-professional clients are far better able to judge than the quality of the legal work. In this context, the panel’s ongoing work to empower consumers to make a real choice of provider is welcome, as is its focus on enhancing the credibility of the many accreditation schemes out there which give a ‘quality’ label to many lawyers, but which, as the panel has previously found, rarely kick anyone off. With the support of the Legal Services Board (LSB), it is also pressing regulators and others to release such quality measures as they have.
It is troubling that where there are objective measures of quality, they often do not tell a happy story – one in five wills prepared by solicitors in a shadow shopping exercise by the panel as part of its work on will-writing were failed by an expert panel; the Probate Service has to return up to a third of applications to solicitors due to errors; studies of criminal advocacy from both private practice and the Crown Prosecution Service indicate not infrequent lapses in quality.
And then there are the results of peer review in legal aid – 12% of peer-reviewed case files carried out between April 2009 and January 2011 for the Legal Services Commission were graded ‘below competence’ or ‘failure in performance’, rising to 38% of employment providers and 27% of mental health providers.
Maybe ultimately this is just a question of labels – ‘quality’ sounds better than ‘competent’ (it’s hard to see a national law firm network under the brand CompetentSolicitors). As the Law Society says, everyone reckons they provide a quality service, and that includes the volume providers who are frequently dismissed by many in the profession on the basis that low cost equals low quality. In my personal experience, higher cost does not necessarily mean high quality.
This question links also to one likely outcome of the Legal Education and Training Review, when it is published next month (hopefully), and that is an overhaul of continuing professional development.
To the extent that there is unanimity on anything covered by the review, it is that the current regime does little to assure the ongoing competence of practitioners. Just because you were fit to join the roll of solicitors 20 years ago does not mean you are fit now, but that is essentially what the system assumes at present.
The LSB has already taken this on board. While the frontline regulators control quality to some extent through entry controls and education and training requirements, it says these are not enough to ensure ongoing competence.
In a piece of work entitled ‘Approaches to quality’, the LSB last year laid out three “key themes in relation to the management of quality risks” that it expected the frontline regulators to take into account:
- Provision and transparency of performance information to allow a greater understanding of where issues in relation to quality exist;
- Development of improved assessment and segmentation of risks to quality in legal services through greater evidence based analysis; and
- Using an outcomes focused approach to ensure that regulatory interventions drive an improvement in quality standards without hindering innovation.
‘Quality’ is very much a work in progress. To use a popular analogy in the legal market, I can tell the difference between low-quality and high-quality baked beans far more easily than I can with legal advice. However readily lawyers throw around the word ‘quality’, I’m still some way off understanding exactly what they really mean by it.