There must be a “third way” of ensuring that qualified lawyers are competent without relying on disciplinary proceedings, the director of regulation and policy at the Legal Services Board (LSB) has said.
Chris Nichols said legal regulators currently faced a “stark choice” between “not doing very much” when they were alerted to a competence problem and making it a conduct issue.
He said there was “a big imbalance” between the resources devoted by legal regulators to “pre-qualification assurance” as compared with ongoing competence after qualification.
Speaking at a virtual conference organised by software supplier Access recently, he said there was also a “mismatch” between consumers’ expectation that checks were in place, and the reality.
Mr Nichols said that what concerned him the most was that “in the even in the most extreme cases”, such as where a regulator was alerted by judges over competence issues, the regulator cannot in practice address it as such – only as misconduct.
“There must be a third way of looking at competence,” he said.
The Legal Services Act 2007 provides for the power to introduce a fitness to practise regime, and there have been calls on the Solicitors Regulation Authority to establish one as a way of dealing with solicitors whose misconduct has arisen from mental health problems.
The LSB issued a call for evidence on continuing competence last autumn, and in a report on responses in February said it would be going ahead with action to ensure regulators introduced checks.
Mr Nichols said that following the call for evidence it was “clear that something has to change” and regulators would have to do more.
He said they must be clear on what was expected in terms of competence and needed to “be open and think creatively” about what evidence could be used to identify individuals of concern.
Regulators would need a process to ensure that something could be addressed as a competence issue, using measures such as mandatory training, supervision or conditions on the lawyer’s practising certificate.
But Mr Nichols stressed too that any system had to be proportionate and targeted, and not put an “undue burden” on the vast majority of practitioners, about whom there were no competence issues.
Later, in a discussion on ensuring the quality of legal services, Mr Nichols said he was “worried about the chilling effect” of the way in which the Trustpilot libel case, involving the law firm Summerfield Browne, was reported in the media following the High Court ruling in January awarding the firm £25,000 in damages.
Despite “quite alarming” headlines, Mr Nichols said he did not believe the case was of such wide application and most members of the public were “very savvy” about consumer reviews.
Paul McFadden, who took office earlier this year as chief ombudsman at the Legal Ombudsman (LeO), said comparison websites were “here to stay” and “anything that restricts that or has a chilling effect is in my view a negative”, a view shared by Sarah Chambers, chair of the Legal Services Consumer Panel.
However, Chris Handford, director of regulatory policy at the Solicitors Regulation Authority, reckoned it would not put off consumers from leaving feedback.
He said consumers had been “quite keen” to post reviews on Trustpilot saying they did not agree with the review at issue in the libel case.
“All the evidence is that firms can benefit from negative feedback, as long as they address it in the right way.”