Risk-based regulation: focusing on activity not title
The Legal Services Board (LSB) has begun work on moving towards regulating lawyers based on the work they do, rather than on their professional title, Legal Futures can reveal.
However, newly released papers by the LSB acknowledge that there will be huge historical and cultural barriers to overcome to achieve a situation where lawyers are not automatically authorised to practise a particular area of law simply because they have achieved a general qualification.
An initial paper presented to May’s LSB board meeting – written by director of strategy Crispin Passmore – said staff intend to start developing their thinking “on how an activities-based approach can play a crucial role in understanding risk and ensuring that regulation is proportionate and targeted in response”.
It said: “Our expectation is that an activity based approach will allow regulators to work effectively and efficiently at targeting their regulation.” This in turn will provide “a strong foundation for further liberalisation”.
One of the drivers for this project is the LSB’s decision to regulate will writing and estate administration work. This will allow non-lawyers to qualify to conduct this work alone, while any body that wishes to regulate it will need to prove they have addressed the specific risks; this includes existing regulators like the Solicitors Regulation Authority, which the LSB does not currently plan to passport into the new regime.
Other drivers include the Legal Education and Training Review – which Mr Passmore said “with a significant push from the LSB, [is] asking questions about how authorisation and post-qualification training and specialisation may need to be very different for particular legal activities”.
The paper said: “However, the shift towards risk-based regulation is not smooth… The history of regulation in the sector is tightly entwined with the separate professional titles. The titles themselves – or, more precisely, the way they are currently deployed – present particular barriers because they make authorisation [to practise] and award of title broadly synonymous.
“This might be overcome but history binds even independent regulators to the professional bodies and titles that they have emerged from.”
The issue will be debated in full at the board’s strategy session in September, which will start to consider “the extent to which [activity based regulation] fits alongside title-based education, authorisation and regulation or may gradually supersede aspects of the current architecture over time”.
David S 
There is nothing wrong with ensuring individuals have the skills to do the work they are doing. However, the risk is that individuals will know only about that area of work and not have a broader experience and view.
It is already the case that qualifying solicitors specialise very early and simply do not have the experience or confidence to see the bigger picture or be aware of all the options.
Writing a Will is one thing. However, there has to be understanding of the legal implications of what goes in a Will with regard to the assets and other aspects. The growth in contested probate work should be a warning here.
It would be nice if the LSB would let all the recent and future changes wettle down for a while before trying to have overnight change on this scale.