The Legal Services Board has ditched its investigation into whether giving ‘general legal advice’ should become a reserved legal activity – but hinted it may look to remove probate from the existing list.
The decision follows the Lord Chancellor in May of the board’s recommendation to make will-writing a reserved activity.
This made it “unthinkable that the broad church of general legal advice could ever meet their test for becoming a reserved legal activity”, according to newly published LSB papers.
Instead the LSB is pursuing the issue through the wider debate of what should and should not be regulated prompted by the Ministry of Justice’s legal regulation review and the board’s own project looking at the cost and complexity of regulation.
The LSB did not recommend to Mr Grayling that probate be removed from the list because of uncertainties about the impact, but the paper said that “on the face of it, the case for probate activities being reserved is weak, far weaker than for will-writing”.
It continued: “This will be borne in mind as we undertake our review of what is regulated and how it is regulated through the cost and complexity project.”
The LSB stood by its recommendation to Mr Grayling. “The evidence for the conclusion that that proportionate regulation surpasses anything that has led to the reservation of any item on the existing list of reserved legal activities,” it said.
“All of the [alternative] actions suggested in the Lord Chancellor’s notice were considered and rejected as viable options by the board during the investigation.”
For example, voluntary schemes already exist but have not prevented the problems identified by the LSB, while educating all consumers about something they very infrequently purchase “would likely be impossible and, at best, prohibitively costly”.
The LSB considered issuing statutory guidance to the frontline regulators that they should still develop a specific set of requirements for all firms writing wills, but decided that this would be akin to asking them to treat will-writing as reserved despite the government decision.
Instead it will write to the approved regulators asking how they will be handling the risks arising as a result of will writing. “We do expect regulators to demonstrate that they have reviewed our investigation evidence and used this to inform their risk profiling and then focus regulatory oversight on the riskiest firms in the market.”