Quality street: are accreditation schemes any use?

We have all spent something like five years in qualifying: study, examinations and training ? including, unsurprisingly, a chunk on conveyancing. So I find comments to the effect that we may be just about capable of doing our job particularly irksome. Yet, this is the suggestion in Jonathan Smithers’ article in last week’s Solicitors Journal (‘Lack of expertise damages the profession’s reputation’) in response to an earlier article I wrote questioning the rationale behind the Conveyancing Quality Scheme (‘The Law Society is not protecting its members, it is misleading them’).

I am disappointed but also insulted. Not insulted personally but on behalf of my profession. And I am disappointed because the response does not address the problems I raised or the comments made. I will adopt the time-honoured and effective approach of putting my comments in numbered paragraphs so that if anyone chooses to reply they will be able to answer these points with clarity.

1. Residential conveyancing is a specialist area

Yes but so is patent law (I choose that at random and for no ulterior reason) and all the others I listed in my earlier article. Is the Law Society proposing to address every specialism with an accreditation scheme? By the looks of it, probably. I understand that there is an ever-growing number of such schemes – wills and probate being the latest.

Having said that, the examples quoted to support the contention that this is a specialist area seem a little weak: different searches in different areas; SDLT; HMLR; and so on. I don’t want to be cast as a simple solicitor, but this is hardly rocket science.

2. Excellence v specialism

Much that has been said consists of non-sequiturs. We have “ignored the correlation between the number of complaints and indemnity claims in this area and the necessity for specialism and excellence”. I can’t argue with excellence but ‘specialism’? My experience is that most solicitors now specialise or, at least, limit themselves in the number of areas in which they practise. But where is this correlation? Is it in a lack of specialism or, rather, in the quality of persons entering the profession, or in the ever-increasing pressure on solicitors to ‘deliver the goods’ quickly – and that does not necessarily mean expeditiously which would incorporate care with speed? Where is the evidence to support any of these assertions?

Further – and I am quoting from someone who has sent me comments on Mr Smithers’ article – the CQS holds itself out as a badge of excellence. Yet nowhere in its rules, application forms or monitoring is there any examination of a practitioner’s ability to carry out conveyancing. No examination, no peer review, no file reviews. Nothing. While I cannot argue with the aim of achieving excellence as a matter of principle, that is not on offer within the framework and structure of the CQS. Even the use of ‘Quality’ in its name is a misnomer. Conveyancing Checking Boxes Scheme might be more appropriate. As has also been pointed out to me by the same author, the scheme only measures the ability of a firm to follow, slavishly, assorted pre-ordained and inflexible procedures not necessarily appropriate to any given particular transaction or client.

3. Indemnity insurers becoming more savvy

The next argument is that regulation has come via external sources and indemnity insurers have become more savvy as to who they will insure. Mr Smithers goes on to add: “mortgage lenders are similarly under pressure from their own regulator” who are looking more carefully at who is on their panel. All agreed. But why are they examining their panel members? The bold statements do not prove anything. There is no mention of economics, which is surprising. Not only have HSBC slashed their panel numbers but they have negotiated fees, for those on their panel, below the bread line. The result is that competition from those unaffiliated is virtually a non-starter. And Santander, I believe, is charging panel members for membership. I don’t necessarily blame them but it is indicative (more so than unsubstantiated statements suggesting alternative reasons) that mortgage lenders have their own agenda not linked to excellence or specialisation (and I repeat it is my belief, from anecdotal evidence, that most, if not almost all, solicitors specialise) but economics.
 

4. The Law Society didn’t make HSBC back down

It is clear from the article that the reason that HSBC sat up and took notice to enlarge its panel was not the intervention of the Law Society but the general enraged outcry from those affected. “Had the Law Society not had a solution to put forward, HSBC’s panel of 43 would still be in place,” it says. I do not agree. The outcry was great and had the Law Society not offered an easy compromise that suited HSBC I suspect that the bank would have had to adopt a far more conciliatory approach. Yes, a mortgagee has a legal right to change the goal-posts but they will replace them if no one turns up for the game.

Also, it is not simply a matter of law. For decades, the system has been in place that a qualified practitioner offering his/her expertise in buying a property was also qualified to act for the mortgagee. Not as a matter of right but of practical logic: it was more economical and saved unnecessary waste of time and delay – the latter having caused rightful complaints from the public for almost as long as the system has been in place. If there are a few poor or bad or criminal practitioners that does not mean nearly the whole batch should be thrown out. The Law Society, in my opinion, had a conflict of interest and did not act in the interests of their members but in the interests of encouraging participation in their own scheme. What makes the Law Society think their so-called solution was the only one? What else was considered? What other approaches were considered or made?

5. Helping clients distinguish good providers from bad

Buying clients have difficulty in distinguishing good from mediocre from bad, is the next argument. Do they? Where is the evidence? My own experience is that most buyers are able to judge their lawyer’s ability and if they are found wanting the client makes it quite clear as to their dissatisfaction. The days of the quiet “I know my place” client (or patient, for that matter), have, quite rightly, vanished along with other bye-gone customs.

6. Unproven value

The CQS has barely got started. Speaking to many other solicitors, my experience is that we are all still acting for our clients without being members of the in-club. Whether 2,500 firms or every firm in the country has joined is no indication of the scheme’s efficacy or success – if one is judging success by results eradicating the problems for which it has been created. How can anyone judge on that basis over such a short period? How many transactions have been concluded and monitored (putting to one side who is carrying out the review)? The scheme remains a baby. In passing, 2,500 firms out of, what, 12,000 is a small percentage - about 20 per cent.

The Law Society has started a monitoring and enforcement programme. What is its framework? What is it seeking to assess? How will it go about doing so? How many examples will it take to reach an opinion? What are its parameters? Who will carry out such monitoring and assessment – experienced practitioners or unqualified, inexperienced and inadequately trained staff? Can the Law Society really rely on self-assessment? Is the Law Society establishing a procedure to assess their assessors who adjudicate on the quality of those in the scheme?

7. Reducing fraud

The CQS scheme, it is said, is designed to eradicate or reduce fraud through raising standards in the profession and “also to explore electronic solutions that can exist within a trusted community formed by the CQS”. This presupposes that those who look for excellence (and their staff) will not commit fraud and that electronic solutions themselves do not offer alternative means of achieving that criminal expertise (to an ever more lucrative bank-bonus-like level; not to mention the resulting emotional and personal hardship that follow).

It also overlooks another substantial problem: it cannot address those outside the profession who engage in conveyancing, including those working for solicitors’ firms. How does the CQS cover the conveyor belt firms who employ such staff to act as conveyancers? How many of those firms are in the CQS or are applying for same? How will they be assessed?

There are easier and less intrusive ways of addressing the sophisticated frauds currently being perpetrated. Closing the Land Registry to the general public (which, I understand, includes any aspiring fraudster whether local or in the far away but immediately accessed Eastern Europe) would be a start. Re-materialising Land and Charge Certificates would also help. The sole electronic way has been a bonanza for criminals and will continue to be so. The sacred cow of transparency and e-transactions has led directly to the explosion of identity and property thefts. It would not go amiss either for more stringent fit-and-proper-person tests to be applied to new entrants to the profession as we had in the past.

If I am over the top, I apologise but I remain frustratedly angry. I am not going to bore you further but will direct you to my earlier article where I raised specific concerns which have not been addressed save by what, I cannot help suggesting, are platitudes.

I will add what I should have said before. I would like to have feedback to see how many of us agree or disagree with the comments both for and against. I thank those who have given me their support first time round.