Unregulated providers of legal services are not as much of a problem as many assume and there is simply not the evidence to back a ban on paid-for McKenzie Friends, the chief executive of the Legal Services Board (LSB) has told Legal Futures in his first interview since taking on the role.
Neil Buckley also spoke of how separating regulators from their representative bodies would free up time and resource to focus on their regulatory responsibilities.
Mr Buckley is a one-time City solicitor who moved into regulation in the mid-1990s and worked his way up at Oftel/Ofcom, and was director of investigations before joining the LSB in January.
“This was a perfect job for me, bringing together both my legal background and my regulatory experience,” he said.
He described the LSB as a “very effective organisation” that achieves more than what one might expect of a body with only 29 members of staff. That many would like to see it abolished sooner or later was of little concern. “It’s interesting how people are focused on the regulatory structure,” he said. “It’s the substance of what we do that matters.”
But should the LSB be doing more to make the profession understand its role? “Regulators are never loved and I don’t think it’s the job of regulators to be loved,” he replied. “It’s our job is to take what we hope are the right decisions in the public interest for the legal services market. It may well be that practitioners are not aware of the decisions we are making – we just try and do the best that we can.”
So one might think it disappointing, therefore, that the recent assessments of the various regulators’ performances showed that much progress has still to be made.
“We and they are on a journey,” Mr Buckley said. “We appreciate that they have made progress since the last time we looked at this. One of the things we think is good is that they themselves have a better understanding of where they are than previously. Their markings this time – apart from the Costs Lawyer Standards Board – aligned with our own assessments of them. They understand there are areas where they are going to need to improve.”
It would help if the regulators were not entangled with their representative bodies – the LSB supports the government’s stated aim of giving the Solicitors Regulation Authority (SRA) and the like complete independence.
Mr Buckley said hoped the regulators could put “more energy and resources” into their work without the distraction of their governance relationships, especially among senior members of staff.
“A lot of time and effort is put by both sides into making sure that their relationships work. And they still have disagreements. It’s absolutely natural that they have disagreements because a representative body is unlikely to agree with the regulator in relation to all aspects of policy. But at the moment they’re all tangled together and that takes more time.”
The former solicitor was, in principle enthusiastic about the SRA’s plan to slim down its Handbook – he had to be cautious because eventually the new rules will have to be approved by the LSB. “As a solicitor myself, I think it might be helpful to have rules contained in a form which is more easily comprehensible and accessible.”
As part of the code of conduct reform, the SRA has proposed allowing practising solicitors to work in unregulated bodies. These seems to send a message about its continuing unhappiness with the haphazard system of reserved legal activities and the boundary between regulated and unregulated services.
This goes to the heart of the structure of the legal market, but the LSB has actually decided to reduce its work in this vital field this year. Why?
Mr Buckley said: “Research we have done shows that the paid-for unregulated sector is actually much smaller than people have previously thought. Although we want to keep an eye on it, it doesn’t seem to be an area for us to take a more careful look at the moment.”
So did this extend to the LSB’s opposition to the Judicial Executive Board’s proposal on banning paid-for McKenzie Friends, which has riled many lawyers who wonder why the value of their qualification is seemingly being downplayed?
The oversight regulator took “a nuanced position which is absolutely in alignment with our statutory duties and objective”, he explained. “We have to make assessments in relation to rule changes and have to determine whether there is evidence to support that.”
The consultation did not provide the evidence to understand why the current discretion to allow McKenzie Friends was insufficient to require a move to a ban, “what the particular detriment was in relation to paid-for as opposed to non-paid-for McKenzie Friends and any analysis of the impact on consumers of the ban”.
Mr Buckley was not prepared to accept that a point of principle was at stake. “Is that a point of principle based on anecdote? As a regulator you expect us to make assessment and do analysis on the basis of the evidence that’s put forward to us. If we don’t see the evidence, then we can’t support such rule changes.”
The second and final part of this interview will be published tomorrow.