Mayson strengthens case to expand list of reserved legal activities

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By Legal Futures

26 July 2011

Mayson: recommendations beefed up

There is a strong consumer protection justification for making the whole conveyancing process a reserved legal activity, Professor Stephen Mayson has argued.

Issuing the Legal Services Institute’s final report on the case for reservation, Professor Mayson said the “guarantee” of title registration is incomplete, “with risks to the quality of the title and the enjoyment of the property potentially compromised by inadequate investigation or representation”.

He added: “There is also risk of fraud and practitioners absconding with purchase money or proceeds of sale.”

Currently only preparing the instrument of transfer or charge is a reserved activity.

The report – which is influencing the Legal Services Board’s work on rationalising the scope of regulation – was first published as an interim document in February, and said reservation (to authorised persons, rather than just lawyers) could be justified either to secure “the public good” and/or for reasons of consumer protection. He recommended adding conveyancing, immigration advice, preparing wills and powers of attorney, and estate administration to the list of reserved activities.

Originally Professor Mayson found a strong public interest argument for reserving conveyancing, but was not convinced of the consumer protection case because of the land registration process and guarantee. This has changed following submissions and further discussions, including a seminar held jointly by the institute and board.

The final report has also beefed up the recommendation on probate. Professor Mayson originally called for the current reservation – which relates solely to the preparation of papers for the grant of probate or letters of administration – to be scrapped and a new reservation added to cover the administration of an estate following a grant of probate or letters of administration.

He now thinks the current reservation should be retained and extended to cover the post-grant process. Professor Mayson was also fortified by the recent findings of the Legal Services Consumer Panel’s and its call for the work to be reserved.

The recommendation on administering oaths has been strengthened too. He calls for any authorised person who wants to administer oaths to have separate training and accreditation to do so, perhaps by way of an endorsement on their practising certificate.

A further addition to the report raises a question about the plans of the Institute of Chartered Accountants in England and Wales (ICAEW) to apply for its members to have probate rights.

Professor Mayson wrote: “If part of the rationale for reservation is the benefit of compensation fund arrangements that arise from being an authorised person, this might inhibit the authorisation of chartered accountants, for whom there are no such arrangements (even though the ICAEW is the largest licensing authority of insolvency practitioners, who also collect assets).”

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One Response to “Mayson strengthens case to expand list of reserved legal activities”

  1. At last the tide of deregulation seems to be turning. None of us like pointless regualtion but the public is at risk and the current protections – be they on will writing and probate or conveyancing – are simply inadequate and out of date. What point is a regulator if most of the work can be done unregulated? That does not mean only solicitors should be allowed to do legal work but it does mean only people who are properly regulated should do it.

  2. David Sheridan on July 26th, 2011 at 3:31 pm

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Independent regulation gives confidence to consumers, providers, investors and society as a whole that legal services work in the public interest and support the rule of law. The Legal Services Act 2007 does not require all approved regulators to be structurally separate from representative bodies. Instead, the Legal Services Board is required by the Act to produce internal governance rules (IGR) which apply the principle of regulatory independence in legal service regulation. We are currently running a consultation on the IGR which continues until 9 February.

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