The human dimension of regulating lawyers

Guest post by Dame Janet Paraskeva, chair of the Council for Licensed Conveyancers

Paraskeva: Assisted compliance is not always appropriate

Being judged by others is always difficult and needs to be handled sensitively as well as rigorously. The tragic case of headmistress, Ruth Perry, who killed herself following the publication of a critical Ofsted inspection, shows just how painful regulatory criticism can be.

Ofsted’s predecessor, HMI (Her Majesty’s Inspectors), were just as independent as Ofsted, and inspections and regulatory visits to schools were just as robust.

I was one and the method of handling problems we observed was more constructive. We took a no less rigorous approach, but without the public humiliation of people struggling to deliver in the increasingly difficult educational environment.

HMI gave their findings, then returned to see how the recommendations for change were being developed and undertaken, adding support when needed. If a school couldn’t or wouldn’t take action, then that was, quite rightly, a matter of public record.

When I was chief executive at the Law Society, we set about guaranteeing that self-regulation in the public interest was sufficiently independent and robust to assure the public and clients that the rules were being followed and that clients were being protected from poor practice.

The Law Society established the separately managed and governed, and independently funded, Solicitors Regulation Authority (SRA).

Now I chair the governing board of the Council for Licensed Conveyancers (CLC). Like Ofsted and our legal sector regulatory colleagues at the SRA and elsewhere, we are there to protect the public and client interest in the delivery of legal services.

The CLC has always been an independent regulator, and all legal and most other professions now have either statutory or separately funded and independently governed regulatory regimes, albeit that there are some notable and perhaps concerning exceptions.

The CLC also has the benefit of specialisation, able to focus tightly on the risks in relation to conveyancing and probate services.

The way that the CLC deals with lawyers who end up in difficulty is different from that used by most regulators. The CLC takes action to address non-compliance when the first difficulties are spotted, not waiting for risk to clients to crystallise into actual harm.

That is especially true when the struggling lawyer recognises the danger and contacts the regulator for help, rather than the CLC spotting the issue through our close monitoring work or intelligence we receive.

The vast majority of professionals are not involved in corruption or intentional wrongdoing, but many will need support at points to achieve and maintain the high standards of compliance with regulatory expectations and legislation that the CLC demands.

That is what we describe as ‘assisted compliance’. It ensures that the specialist lawyers we regulate address any failings within short timeframes set by the CLC. If that is not achieved, then of course action is taken as appropriate by internal discipline, referral to the independent adjudication panel or, if necessary for immediate client protection, intervention to take control of a practice.

Some say any instances of non-compliance should be made public for consumers to be aware. Allowing a minor and rectified problem to become a matter of public record could have a disproportionate impact on consumer views of the practice. It would also risk considerable time being spent by practices resisting findings of non-compliance to protect their reputation rather than correcting the issue.

The CLC’s assisted compliance approach is resource intensive and we have flexible outsourced arrangements to help us manage peaks and troughs in work. It also demands, and this is very important, the full-hearted engagement of the regulated community.

It requires what we might describe as a contract between regulated persons and the regulator to be frank and candid when working together, and it delivers better outcomes for clients, for the public and indeed for the regulated community.

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