Guest post by Crispin Passmore of Passmore Consulting [1] and former director of policy at the Solicitors Regulation Authority
Passmore:
In May 2018, the board of the Solicitors Regulation Authority (SRA) approved the new Standards & Regulations that are designed to replace the 2011 handbook.
They were then placed before the Legal Services Board (LSB) for approval. Despite the resistance of the Law Society, which has opposed so many other progressive reforms with similar arguments, the new Standards & Regulations were approved on 6 November 2018.
This was the culmination of a reform programme that started with the publication of a Policy Statement in 2014 that set out the way that the SRA would regulate. At that stage it was envisaged (as the policy statement concludes) that the new rules would be in place by the end of 2017.
The sheer scale of consultation and engagement with the profession and public alike meant that this ambitious timescale has not been met. But now it is time for the reforms to be implemented: solicitors and firms are ready to go.
The SRA has hinted publicly at implementation in April 2019, but we would all know by now if that were happening, so a further delay to the summer seems inevitable. The reasons for this are for the SRA rather than an independent consultant, but we might assume that they want to give themselves and law firms time to prepare.
But delay far beyond April impacts on consumers as much as it does solicitors, law firms and the SRA itself. If one of the compelling reasons for change is to widen choice and improve access to justice, then delay must be prejudicial.
Of course, modernisation is difficult and operational change a challenge but there are options open to the SRA to mitigate delay and set the legal market free now.
The SRA already runs its innovation space, SRA Innovate [2]. That has allowed firms to experiment, move forward and embrace change though the use of waivers. It did not, as some have argued, introduce the reforms before they were approved, as each waiver has to be approved within the rules of the existing handbook.
But solicitors have obtained permission to offer legal services to the public from unregulated businesses. That, and becoming a freelance solicitor, are the reforms that solicitors and legal business tell me they want to take advantage of when the new Standards & Regulations come into force.
The availability of waivers does mean that solicitors and firms do not need to wait for formal implementation. But what unnecessary bureaucracy to require an application to waive rules that the SRA has decided and the LSB endorsed as out-of-date and inconsistent with best regulatory practice.
So, the SRA should implement the reforms urgently and provide urgent certainty as to when that will be. In the meantime, it should use its imagination to allow solicitors and firms that are ready to move now to get on with it.
There is precedent for this. In 2018, after the SRA board had approved the new Standards & Regulations but before the LSB had endorsed them, the SRA made a statement [3] on its approach to pro bono and enforcement. In short, it gave comfort to in-house lawyers that if they offered pro bono services through a not-for-profit body they would not be considered to be in breach of the current rules if certain conditions were satisfied. In effect, it gave a general waiver.
It would be possible for the SRA to allow solicitors to work as freelancers or to offer services to the public through non-regulated firms via a similar mechanism now without waiting for the new Standards & Regulations to come into force.
That would be consistent with the SRA’s regulatory objectives and would satisfy best regulatory practice. Undoubtedly that would be good for the public, good for solicitors and legal business and therefore good for the SRA.