The Legal Services Board (LSB) is on a “mission impossible” in imposing an ongoing competence regime on the legal profession that will generate disproportionate costs for lawyers and consumers, Professor Stephen Mayson has argued.
The academic, who in 2020 completed an independent review of legal services regulation, said the initiative risked being inconsistent with the regulatory objective in the Legal Services Act to improve access to justice.
Reacting to the LSB’s final version of its policy statement on ongoing competence, published last month, he said: “The LSB’s approach to sector-wide assurance of ongoing competence is disproportionate in effect, burden and cost.
“The process leading up to the policy statement has not offered any evidence of widespread harm arising currently from practitioner incompetence.
“Nor is there any analysis of where any harm is focused, in terms of the practitioners most likely to cause it, the legal services most likely to give rise to it, and the consumers most likely to be affected.”
In a blog on his website, the professor said the LSB’s recognition in the policy statement that “competence varies according to circumstances” encapsulated why before-the-event assurance of competence was an “expensive, burdensome and ultimately ineffective” process.
“The harm that needs addressing – and for which there will most likely always be evidence – is incompetence. This will necessarily be an after-the-event issue.”
He described “the principal difficulty in the LSB’s quest” as seeking to secure an “unattainable positive [in] the assured and continuing competence of every practitioner for any activity that they might undertake during their career in serving the legal needs of clients”.
It was not that such a goal was “unworthy”, but it was “impracticable and inconsistent with the LSB’s duties”.
“Achieving such before-the-event assurance will be brutally expensive in terms of resource, burden and cost. Again, in the absence of evidence, the imposition of such across-the-board expense on regulators and practitioners – and, ultimately, on clients – cannot be justified.”
Professor Mayson said the LSB’s assertion that consumers would pay more for greater confidence was “hypothetical” and, “faced with the future reality of more expensive legal services”, they were “more likely to exclude themselves from advice and representation, or perhaps seek the services of cheaper unregulated providers of non-reserved activities”.
In developing the policy statement, the LSB had shown that it did not have the evidence needed to support its policy and the oversight regulator was acting in a way that could not be justified as targeted “only at cases in which action is needed” and “proportionate”, as required by the Legal Services Act.
“The policy statement has the feel of a sledgehammer to crack a nut – and an unevidenced nut, at that. The use of better-designed nutcrackers would have been a more appropriate and justifiable response to any concerns.
“Rather than leaping from some apprehension about a possible lack of competence to mandatory requirements for the universal assurance of competence (which the LSB recognises will be ‘challenging’ and will ‘require more complex policy development’ by the regulators), the absence of evidence could have been used as the starting point.
“Instead, the LSB could have said to frontline regulators: ‘There is little direct evidence of competence issues. Let us investigate together whether or not there is any real basis for concern. If there is, we can work towards validating and quantifying that concern, and understanding where, when and why it arises. We can then consider the most appropriate way of targeting proportionate and consistent interventions to address it.’”
He argued that it was unlikely that such an approach would have led to the new policy in its current form: “Taking steps to find the evidence of a problem is preferable to assuming or exaggerating the existence of one.
“It would also have been a more convincing demonstration of the LSB’s focus on discharging its core responsibilities in an evidence-based, targeted and proportionate way.”