What is the unmet legal need â€“ and whose is it?
Susanna Heley examines the flaws in the SRA's proposals to overhaul the solicitors' profession and open up the legal services market to meet consumers' needs
The Solicitors Regulation Authority’s recently closed consultations
on a revamp of the Handbook and Accounts Rules have been pretty well lambasted across the board. Many published responses (I can’t say I’ve looked for all of them) have serious concerns about the SRA’s proposals to allow solicitors to work in unregulated entities, conducting non-reserved activities, but still using the ‘solicitor’ title.
Objections are, predictably, directed at the responding organisation’s particular interest. So, for example, the Legal Ombudsman focuses on the problems the SRA’s proposal would cause for it in terms of jurisdiction and consumer confusion. The Junior Lawyers Division says it would be detrimental to junior lawyers and the City of London Law Society maintains that the risk presented by the proposal is not, based on the limited information in the consultation, justified by the supposed outcome of the proposal.
The SRA has struggled with
its consultation process in the past. Last year it was criticised for launching multiple consultations on the same day for response within a limited time. It learned that lesson and extended the response time for the Handbook and Accounts Rules consultations to 16 weeks, more generous than the standard 12 weeks.
However, criticisms remain that the recent, very significant, consultations were difficult to follow, somewhat unclear on
key points, and lacked adequate evidence for at least some of the SRA’s proposals.
Opening up the market
The biggest issues though are evidential support and timing. Leaving aside the inconsistency between the SRA’s approach
and the Legal Services Board’s recently published vision for
the future of legal services, the SRA, while firmly tying some
of its proposals to the issue of competition in order to address the opening up of the market
to meet a claimed ‘unmet legal need’, didn’t wait for the interim report of the Competition and Markets Authority and didn’t have any details to give about the unmet legal need.
The assumption that unmet legal need arises because
legal services provided by fully regulated providers are too expensive underpins the most controversial suggestion in the consultation. The SRA’s solution to that perceived issue is the opening up of the market.
Let solicitors out into the unregulated world to practise
as solicitors, conducting all
but reserved activities.
The problem is that solicitors can already do that. The framework is in place for solicitors to have separate businesses carrying out unreserved work – they just cannot use the ‘solicitor’ title.
So how can relaxing restrictions on the use of the title fill the
gap, if there is one?
Cynics may suggest that the systematic dismantling of the legal aid system over many years, the Jackson reforms, limits on insurance coverage, fear of what claims may do to insurance premiums, and massive increases in court fees may be
at the heart of an unmet legal need. The courts continue to be troubled by the rising costs of dealing with litigants in person, but all of those issues involve reserved activities.
What then is the unmet legal need – and whose is it? If it can be solved by allowing solicitors to conduct non-reserved
work, it cannot be litigation, immigration, or conveyancing.
According to the LSB’s research, published last year, the basis for suggesting that there is an unmet business legal need is that more than half of the firms surveyed by the LSB indicated that they would try to solve
legal problems themselves.
The problems most commonly encountered, according to the research, related to employment, taxation, and trading.
Unregulated advisers have been working in the areas of employment and taxation for years. Could it be that the reason there is a perceived unmet legal need is that the research contains flawed methodology arising from misunderstandings – whether on the part of interviewer or interviewee – of these areas
of law and how the use of specialist advisers has developed?
For individuals, the evidence is even sparser. Nowhere in the LSB research on individual consumer needs does the word ‘unmet’ appear. Issues faced by individuals were principally suggested to be ‘consumer
and neighbour’ problems. Perhaps we should give
the Consumer Rights Act – in force now for just a year – an opportunity to show its mettle before radically overhauling the solicitors’ profession and, if the responses are accurate in their predictions, throwing away
our national and international reputation for no reason.