No sense in reserved activities, senior academic says

All legal services professionals should be in a position to demonstrate their competence, irrespective of whether the work falls in a reserved activity category, a senior academic has said.

Talking at the LETR Symposium on Tuesday (10 July) Professor Julia Black argued that activity-based regulation needn’t be inextricably linked to individual qualifications or titles.

“There is no sense in what we have, there is no sense in the reserved activities – none at all and I would advocate that any supplier of legal services, on an unsupervised basis, should be able to demonstrate that they have attained and maintained, and can continue to maintain, a level of competence and professionalism which is common to all,” Black, who is Professor of Law at The LSE, said.

The two-day symposium marked the midpoint of the Legal Education and Training Review, at which the research team presented the assembled with three scenarios for the future regulatory framework of legal education and training. LETR will report back on responses to the scenario’s in August but is due to publish its third discussion paper: Developing the Detail, this month.

As she pointed out that 50 per cent of legal services were provided by practitioners without a protected title,Black challenged participants to consider whether, as in the medical profession, there should be a regulated minimum threshold of general competence which could then be supplemented with additional qualifications for special activities. To achieve this, while encouraging the flexibility to move across specialisations which the LETR has identified as a goal of its work, she argued that qualification should be divorced from course.

Taking a head on approach to the more controversial aspects of the debate, she said: “The skills you acquire as a lawyer are applied across the board, irrespective of the size of the transaction, the wealth of the client or the size of the fee.”

She cited high-volume processing of banking complaints; in her words the ‘bread and butter’ of some of the larger firms, as an example of a legal process that is incomparable in complexity to an immigration case, for instance.

According to Black, the profession had to grapple with “thorny issues”, such as the false assumptions among both lawyers and educators about the real sticking points of this review.

There was a perceived divide, she explained, between the objectives of education and those of business and too much concern around outcomes focused regulation.

It’s a “red-herring” she said, “forget it - of all the problems there are to resolve, that’s a very easy one”, more important are the false dichotomies between entity, title and activity-based regulation, which she feels are in danger of being too firmly engrained in the debate around new approaches.

Black agreed with Steve Mark the legal services commissioner of New South Wales who had spoken before her, about the importance of flexibility in the new legal services market.

Although the current system benefits legal education providers, who have a monopoly on the highly sought after qualifications required to practice, Black advocated a divorce between qualification and courses, saying it would aid flexibility and help the profession better serve the global, multi-jurisdictional market that Mark had described previously.

In creating this flexibility though, she said the structure that students need for effective learning should not be lost. “Providing flexibility with sufficient scaffolding, responsibility and ownership among the different participants in the training and education process, I think, is going to be absolutely critical” said Black.

LETR is a wide-ranging review of the regulation of legal education and training in light of the Legal Services Act. It was jointly commissioned by the Solicitors Regulation Authority, The Bar Standards Board and ILEX Professional Standards and commenced in June 2011. It is due to report back to the regulators in December 2012.