Coupland: LSB did not acknowledge its failings enough
Legal regulators have accepted the Legal Services Board’s (LSB) finding that they missed opportunities to address the issues that came to a head in the Mazur case.
As we reported yesterday, the oversight regulator decided that the errors made were not of a magnitude that required it to take enforcement action against any of them.
It also stressed the importance of the regulators collaborating as they produced related guidance.
The most critical response came from CILEX, whose chief executive Jennifer Coupland said it accepted the findings.
“While CILEX has always done its best to communicate the latest regulatory guidance available, we know that we have not always got it right.”
But she expressed disappointment at the LSB’s “insufficient acknowledgement” of its own failings. The review only highlighted statutory decisions the LSB made in 2011, 2012 and 2013 in approving rule changes, when it failed to address “differing approaches and terminology from the regulatory bodies on the conduct of litigation under supervision”.
Ms Coupland argued: “There were multiple opportunities for the LSB to intervene or take action to provide the clarity [on litigation rights] that the sector clearly needed.”
She also considered it “insensitive” that the report concluded there was no evidence of detrimental impact to the profession after the High Court ruling, “without properly acknowledging the human impact on the many lawyers and firms who experienced real negative consequences and significant stress”.
She found it “disappointing” as well that, in its first substantive output since publication of the independent public bodies review of the LSB, the body showed “no substantially changed approach to the oversight of regulation going forward”.
Ms Coupland said: “As set out in CILEX’s five-year strategy, published earlier this month, we will be actively engaging with both the profession and government to campaign for regulatory reform, including changes to the Legal Services Act.”
She added that, recognising the need to co-operate more, CILEX was “committed to strengthening our relationships” with both CILEx Regulation Ltd (CRL) and the Solicitors Regulation Authority (SRA) to improve coordination across the sector.
In a statement, CRL said: “We recognise the importance of clear and consistent regulatory guidance in ensuring effective regulation in the consumer interest.
“As the report notes, since the Court of Appeal judgment, CRL has worked constructively with partners to ensure guidance is updated and clear and we are also working closely with CILEX to ensure our regulatory communications are consistent.
“We acknowledge that, like other regulators and professional bodies, there were opportunities to achieve greater clarity and consistency prior to the Mazur judgments.”
CRL said it was now implementing the LSB’s recommendations, including coordinating guidance and gathering more information about professional practice.
“We also believe that the report confirms our view that the Legal Services Act is in need of review to properly reflect modern legal practice.”
An SRA spokesman said it recognised “the concern and confusion among practitioners and firms” that followed the initial ruling but was pleased with the positive comments about the guidance it issued last month.
“We do though accept that more can still be done to provide even greater clarity to the profession, in particular in relation to legal service regulators reaching unified positions and consensus on the advice being given ahead of any publication.
“We look forward to working with the other regulators, and LSB, to understand how and where we can move toward such an approach across all areas in future.”
Law Society vice-president Brett Dixon said: “The LSB’s review rightly states that inconsistent regulatory interpretations created unnecessary uncertainty across the legal sector.
“Earlier collaboration between regulators would have helped deliver the clarity and consistency that people expect from the justice system.”
He said the focus now should be on providing “clear, practical guidance on what effective supervision looks like”.
Mr Dixon added: “We agree that any future regulatory approach must reflect the realities of modern legal practice. To do this we have worked closely with the SRA to develop a range of practical examples regarding how questions about appropriate supervision will be addressed.”
Given that five regulators and the Law Society have all issued guidance on Mazur since the Court of Appeal ruling, Legal Futures asked the LSB why it did not co-ordinate a single piece of guidance that applied to all?
In a statement, it said: “The LSB’s role is to oversee the frontline regulators, rather than to regulate the profession directly ourselves.
“Each regulator has direct supervision of, and expertise in, their own part of the profession, including how their regulated communities operate in practice. This puts them in the best position to produce relevant guidance for their part of the profession, and to identify and respond to risks as they emerge.
“What we can, and will, do is help regulators work more closely together so that where their guidance touches on the same issues, it is developed consistently and with regard to how other parts of the sector have approached similar issues.
“That’s why the actions we’ve set out following this review focus on regulators sharing draft guidance with each other and strengthening how they assure themselves that guidance is working effectively in practice.”
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