White knight or quixotic soldier?
Worried about access to justice, the SDT has raised its head above the parapet, but its concerns are unlikely to have any lasting effect if it doesn't broadcast them consistently, writes Jean-Yves Gilg
Support for smaller firms came from unexpected quarters earlier this week. In a response to the SRA's 'Looking to the future' consultation, the Solicitors Disciplinary Tribunal launched into an impassioned plea for smaller firms facing unprecedented challenges in the wake of the legal aid reforms and of the wider changes to the legal services landscape.
These firms, it said, 'form an essential reliable source of legal services for those who could be described as vulnerable' and they 'currently fill the [legal aid] gap at competitive prices'. They should not, it concluded, 'be sacrificed as the price to be paid for an ideology that unmet consumer needs will be satisfied to an equivalent standard by the unregulated sector'.
Judges regularly speak out for the underdog and the unfairness of a justice system which is increasingly failing to protect the vulnerable. The SDT, on the other hand, is a more opaque court that has shied away from sharing out its thoughts on policy matters. But it happens. Earlier this year, the tribunal used its response to a Legal Services Board consultation to slam the super-regulator over its obsession with innovation as if it was an end in itself, and for placing 'economy' before 'democracy' as a key principle underpinning the overall purpose of legal services.
Ostensibly, the tribunal's response to the SRA addressed a number of proposals ranging from the suitability test to the removal of the 'qualified to supervise' requirements. Its introductory disclaimer sets out to avoid conflicts of interest that could expose it to accusations of bias. But its opening comments have little to do with the consultation and everything to do with access to justice.
For a court whose remit is strictly on regulatory misconduct, these comments say a lot about how far the access to justice concerns have reached into the justice system. They should be applauded. But there are a few issues too.
The tribunal's concerns are unlikely to have any lasting effect if it doesn't broadcast them consistently. Its views are only publicised occasionally, as it did on this occasion, in response to consultations, and they are rarely expressed '“ if at all '“ in its rulings. It's like a pressure cooker occasionally letting off steam: people stop and listen for a moment and then forget about it.
Then, there is the question of the practical steps the tribunal could take to support these smaller firms. Voicing concerns is one thing, but how about developing a different approach to regulatory sanctions that goes beyond the blunt outcomes currently available. A form of rehabilitation could allow those solicitors found in breach of minor rules positively back into the profession, and perhaps even better solicitors than before. This would require consultation and parliamentary approval but it could be especially suited for the firms the SDT has in mind.
Finally, and perhaps most importantly, the tribunal should accept that the market is changing and that new ways of working are being developed. In this respect, the tribunal's apparent assumption in relation to smaller firms and unmet needs is not entirely convincing. We may not be a totally connected society '“ that may not even be wholly desirable '“ but the next generation of law firm will not be like the one we know today. Nor will the way consumers access legal services.
Like the tribunal, Solicitors Journal is unconvinced by the pursuit of technological innovation for the sake of it, but we cannot ignore that technology is changing our lives and that it will, one day, be the norm for legal services too. The tribunal needs to acknowledge these changes, otherwise it will just be tilting at windmills.
Jean-Yves Gilg is editor in chief of Solicitors Journal