Liberty, equality, transparency

There is no question that clients should be able to make informed choices, especially when relying on professional assistance at significant times in their lives. And there is no doubt that lawyers have a responsibility to be clear about the services they provide. But there is a lot of confusion over what transparency entails, and the Legal Services Board’s action plan, produced as a follow up to the CMA’s report last December, does little to clarify the issue.

Solicitors provide a highly professional service and it is right that their fees should reflect the quality and value to purchasers. Saying that each client’s circumstances are different, however, and insisting that you will only quote once you’ve had an initial conversation with a client is simply no longer acceptable as a default position.

As a client, I want to have a general idea of the costs involved without fuss. I don’t need every detail – I’m not quite looking for a quote, just a ballpark figure or a general scale, before I decide to engage with you further. And I will understand if you make a caveat. All practitioners have a range of figures in mind for any given kind of issue, based on their own experience. Ask your peers how much they charge for a divorce or for conveyancing and they will give you a rough quote straightaway.

Yet, too many firms continue to take clients through a different journey that involves sitting them in a room for half an hour before imparting any price information. For a lot of potential clients, this is a waste of time. For law firms, they are missing a trick.

The Law Society has already started tackling the transparency issue in a specific toolkit, issued in December last year. This is not a bad place to start. However, it doesn’t fully address the publication of price information before engagement, referring only to ‘providing information at the right time’ and saying that ‘publicising your services and your prices (or pricing structures) online can make that information easier for potential clients to access’.

So it’s hardly surprising that we should now be in a situation where the LSB has asked frontline regulators to build transparency into their rulebooks. Legal services providers should be encouraged more vigorously to publish information on service and price. But if this is to become an obligation, then the rules should be the same for everyone.

The way reformers have deployed their consumerist agenda has lowered the value of legal services. In the name of access to justice, unregulated providers have been encouraged to come into the market as an affordable alternative to traditional firms. As long as they do not step into a reserved activity area, these providers are free to set up a legal advice business, while bearing none of the compliance burden shouldered by regulated firms.

Even the SRA has ended up in an awkward corner in its search for a more flexible approach to professional indemnity requirements. As things stand, the regulator has moved away from altogether waiving compulsory minimum cover. This would have put law firms on an equal footing with unregulated providers. The option is still, just, on the table, based on experience from the medical profession, where doctors must have indemnity insurance in place but are left to decide the appropriate level for their practice.

And here’s another leaf that could be taken out of the medical profession’s handbook: nobody should be allowed to practise law without the requisite qualification and compliance with ongoing regulatory obligations. Would this be going too far? Perhaps, but what this shows is that the consumer-led approach to opening up the legal services market has been thoroughly inconsistent. As a matter of policy, if unregulated providers are at liberty to enter the market, then equality demands that the same rules should apply to all providers, whether regulated or not. Only then would transparency obligations make sense.

Jean-Yves Gilg is editor in chief at Solicitors Journal

jean-yves.gilg@solicitorsjournal.co.uk | @jeanyvesgilg