Yesterday’s by the Legal Services Consumer Panel was more proof, if any were needed, that the Legal Services Act 2007 is anything but a deregulatory measure. Even the deregulation of business structures is hedged by a raft of new regulation.
There are several points worth picking out of the report. First, it emphasises once more how critical reserved legal activities are to the future shape of the legal market. There are a few of us – stand up Stephen Mayson – who bang on about this subject rather a lot and I make no apologies for that. It may not be the best form of regulation but it’s the one the Act has left us with.
The Legal Ombudsman pointed out recently the confusion the reserved/unreserved divide is causing and this issue is only going to get bigger as the Legal Services Board conducts its review of the scope of regulation. It seems likely that this will lead to more reserved activities, rather than fewer.
What making will-writing or any other area of practice a reserved activity will do is introduce a level playing field for solicitors. What it won’t do, clearly, is reserve it solely to solicitors. The irony is that by pushing for the regulation of will-writers, solicitors will arguably make them more formidable competition.
Second, who will regulate will-writers? As I reported yesterday, the Institute of Professional Willwriters was , but the impression I have is that the Legal Services Board is not hugely thrilled at the thought of having another small regulator to oversee. Maybe it would prefer an existing regulator like ILEX Professional Standards or the Council for Licensed Conveyancers to have a crack. (Of course, in the spirit of regulatory competition that underpins the Act, we could end up with all three and more besides.)
Third, the panel has raised, once more, the issue of checking lawyers’ post-qualification competence. For all the reviews of CPD that the various regulators have undertaken or are undertaking at the moment, even the most robust system does not guarantee that a lawyer still meets the standards they did on the day they qualified. The panel will be keeping a very close eye on the joint regulators’ education and training review to ensure that this issue is properly addressed.
Fourth, an embarrassing proportion of wills prepared by solicitors failed to pass muster in the mystery shopping exercise undertaken by the panel. The figures are small but embarrassing nonetheless. One can suggest various reasons for this – maybe the work doesn’t pay enough for solicitors to take the time, or maybe they pass it to staff who are not suitably qualified – but it has cut the moral high ground away from under solicitors’ feet.
Fifth, solicitors could learn a lot from their competitors in terms of the service they provide – such as going to the client’s home, rather than making them come to an office – especially as consumers were found to shop around more over wills than many other types of work. They can also learn from how will-writers cross-sell other services. The panel’s research showed how will-writers cross-sold will storage, estate administration, powers of attorney and “legal assistance in future” far more actively than solicitors. Interestingly, however, consumers were more likely to buy the cross-sold services offered by solicitors.
Sixth, DIY wills – whether paper or online – did not fare well in the mystery shopping either. The report recognises that these raise some difficult issues. It suggests to me that on their own, they may not be the answer, but I can see no reason why they are not good news when combined with back-up from a professional to review them, as with the model sold by Legal Futures Associate Epoq.
This goes to the heart of the Legal Services Act reforms to me – I don’t want a lawyer on a big charge-out rate to spend time cutting and pasting a precedent. Let a clever computer programme do that, so he can spend his time and attention on the handful of tricky clauses for which I really need expert advice. For that expertise and security, the research shows, people are prepared to pay.
As, indeed, would I. Now, who wants to do my will for me?