[1]Townend: LSB’s work on NDAs is absurd
The use of online comparison websites for barristers is “utterly inappropriate”, the Bar Council has said.
It is an example of the Legal Services Board’s (LSB) “regulatory overreach”, according to Bar Council vice-chair Sam Townend KC, with its “absurd” approach to non-disclosure agreements another.
The Bar Standards Board (BSB) is currently running a pilot [2] to see if review and comparison websites could work but Mr Townend said they were “utterly inappropriate for our referral profession with its sophisticated professional clientele”.
Such an approach also “ill sits with the fact that we owe a balance of duties to the court as well as our clients (and the simpler fact that in many cases, and despite our best efforts, clients will properly lose following trial).
“This is not to mention the serious libel and detrimental diversity implications of allowing lay clients free rein with online reviews.”
The comments, made on the Bar Council website, are the latest in the Bar Council’s longstanding criticism that the LSB has gone beyond its remit of overseeing the frontline regulators like the BSB and become a “market actor, seeking to lead or influence the market”.
This was activity “properly for politicians and policymakers and not regulators”, and causing “a greater regulatory and cost burden on members of the Bar” as a result.
Another example was the LSB mandating the regulators “to consider and implement standardisation and unbundling of the provision of legal services”, Mr Townend said.
He criticised the LSB’s policy statement last year on ongoing competency, “raising the spectre of compulsory and regular revalidation by practising barristers, despite there being no positive evidence of any systemic problem of competency at the Bar”.
As we reported last week, the BSB’s response to the policy statement left open the possibility [3] of reaccreditation in the future.
Mr Townend rounded too on the LSB’s plan for a call for evidence on the role lawyers could play in ensuring that NDAs were not misused.
“This is an absurd enterprise that the LSB has embarked upon,” he said. “While we may not like them or their use, and I for one do not, at present NDAs are lawful. It is for Parliament to consider whether they should be made unlawful, or perhaps made unenforceable unless both parties to them are legally represented.
“Whilst they remain lawful, if a lawyer is instructed to draft an NDA on behalf of their client, that is what they must do, in line with the professional principle that authorised persons should act in the best interests of their clients.
“Accordingly, the call for evidence and any subsequent public policy work or regulatory activity is not something that the LSB should be involved with because it has nothing to do with the LSB’s functions under the 2007 Act.”
Mr Townend argued that it was no appropriate for the LSB to spend – “in substantial part without real accountability” – the Bar’s or consumers’ money “on matters for which Parliament has not deemed it has a role”.
The KC revealed that the Bar Council has been lobbying the government and Parliament to review the LSB.
Earlier this month, he went on, following a request by the Bar Council, “the LSB wrote to say that it did not object to the Bar Council’s request for a Ministry of Justice departmental review of its role and performance, the last one having taken place in 2017”.
Mr Townend said: “This is welcome and we continue to press the government to implement such a review without delay.”