Making the case for the SRA’s use of waivers

A guest post by Crispin Passmore, director of policy at the Solicitors Regulation Authority

Passmore: We are in fact increasing consumer protection

We are now nearing the end of a five-year programme to change how the SRA regulates. As a result, we will have cut more than 500 pages of complex rules, so we can make sure we focus on what matters: high professional standards.

Our changes will also make it easier for solicitors and firms to do business – giving them more choice about how and where they work.

Our reforms should help encourage new ways of working, but we also want to help lawyers and business work with us to implement innovations that might be difficult under existing regulations but are still in the public interest. So in 2016 we launched SRA Innovate.

Sometimes advice and guidance are enough, but through SRA Innovate we are also using waivers to existing rules to allow something new to happen safely.

Often the waiver will include conditions or monitoring obligations. Having the right assurances around consumer protection are crucial, while we also want to make sure the SRA as well as the firm or solicitor learns from the innovation.

Like other regulators, we want to facilitate innovation and growth that supports the public interest, including access to solicitors delivering high professional standards.

Last year we consulted on SRA Innovate and our waiver policy. In early June we will start using our revised approach at the start of three events in Cambridge, Bristol and Newcastle to discuss innovation with traditional law firms, ABS, start-ups and others.

Recently one waiver – first reported by Legal Futures – has come in for significant criticism, but it is inappropriate to seek to attack our recent proposals to allow solicitors greater flexibility as to where they work through this case.

Under the waivers policy, we look at all of the circumstances and a waiver can only be granted if it is compatible with the regulatory objectives and overall in the public interest to do so. Therefore, before we grant any waivers, we will take into account the protection of consumers, the rule of law and administration of justice.

We are not creating or allowing unregulated legal businesses to operate: they have long existed because under the law not all lawyers or legal activities need to be regulated.  

Many unregulated businesses employ solicitors to offer advice to the public. Some do so on a telephone helpline, as they are allowed to under rule 4 of the current Practice Framework Rules.

If the client wants more than just a discussion over the phone, such as the solicitor drafting a letter, the solicitor often passes the client to an unqualified paralegal or non-practising solicitor.

In those same unregulated firms, many solicitors give up their practising certificate so they can deliver legal advice, including for example representing at employment tribunals, as a non-practising solicitor.

In these situations, the legal advice does not fall within the Legal Ombudsman’s remit, nor do the regulatory obligations that arise for any solicitor with a practising certificate apply.

By allowing, through a waiver, solicitors to practise as a solicitor in these unregulated firms, we are in fact increasing consumer protection.

In both the scenarios, a waiver that allows the solicitor to practise in an unregulated business puts the full weight of regulation behind the solicitor. Individual clients also have recourse to the ombudsman.

None of this stops any client from choosing a regulated firm but it does increase the consumer’s protection.

We all have an interest in making sure we maintain and build trust in the solicitors’ profession. Yet incorrectly maintaining that solicitors’ involvement in such work reduces consumer protection risks undermining that trust.

Say it loudly enough and the public might choose to avoid solicitors over the myriad other options they increasingly have.

It may be that some prefer traditional practice models, but we will not favour any specific business structure. We remain of the view that consumers value the brand solicitor because of the high professional standards and regulatory protection that the title evokes.

We will not undermine that but will do what we can to increase the accessibility and availability of ethical and well-regulated solicitors to the public.

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