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Learning to live together

14 July 08

A look at relations between the Law Society of England & Wales and its split-off bodies now dealing with professional regulation and complaints against solicitors

by Simon Young

In January 2007 the Law Society of England & Wales split into three elements. The main structure of the Society remained as the representative body, with the responsibilities set out in its royal charter and the Solicitors Act 1974. The two new bodies drew heavily on existing staff, but their governing boards were largely new, with a preponderance of lay members.

The Solicitors Regulation Authority (SRA) took over the formulation of new rules (subject, for now, to ratification by the Society’s Council), and the enforcement of all regulations. The Solicitors Disciplinary Tribunal however remains the independent court sitting in judgment on the profession.

The SRA’s first major task in rule-setting terms was the introduction of the 2007 Solicitors Code of Conduct – a wholesale review of the professional rulebook and the culmination of a task begun by the Society in 1999. In overall terms, that went relatively smoothly, in terms of the relationship between the two bodies. The SRA’s main relevant current role is the creation of the regulatory framework for the introduction under the Legal Services Act 2007 of legal disciplinary practices. Again, in overall terms, co-operation and consultation with the representative side has been effective, if a trifle rushed.

Less happy, however, has been the relationship with regard to enforcement between the SRA and the Society, as there is a growing perception that the SRA is becoming very heavy handed – recently the subject of a number of articles. The chair of the SRA (himself a recent past president of the Society) has acknowledged that his board can only regulate with the trust of the profession, but attitudes will have to relax before that trust can be won.

The other new body is the Legal Complaints Service (LCS). Theirs has been the task of interfacing with Zahida Mansoor, in her two capacities as Legal Services Ombudsman (LSO) and Legal Services Complaints Commissioner (LSCC). That appears to have been a distinctly unhappy relationship, as indeed was previously the case with the Society’s complaints handling arm. Ms Mansoor has twice fined the Society for failure to file an adequate plan. The amounts of £220,000 and £275,000 go to central government funds, and there has been particular resentment at the fact that the latter fine, imposed in June 2008, was for failure to effect sufficient cost-cutting measures. The irony of fining a body for failure to save its own members’ money seems to have passed her by.

Unsurprisingly, the main battleground between the Society on the one hand, and the SRA/LCS on the other, has been the question of territorial boundaries, and financial control in particular. Both the new bodies seemed to succumb to the temptation to rush off and buy brand new and very expensive IT systems, rather than making the best of what they had. It required a considerable effort on the part of the Society’s chief executive effectively to pull rank on the subsidiary bodies, and point out that the Society remains – for the moment at least – the ultimate paymaster, since funds still have to be raised through the practising certificate fee.

Once the 2007 Act is fully in force, complaints handling will pass to a new statutory Office for Legal Complaints (OLC), subsuming the LSO and LSCC. In one sense, the problems between the Society and others on the complaints side will disappear once that occurs, as the Society will play no direct role. The concern then, however will be to ensure that the OLC acts fairly, and is not unduly prejudiced in consumers’ favour (as many solicitors fear) or unduly expensive, since the full cost will fall back on the profession.

What may persist are differences between the Society and the SRA. Those may be eased when the Legal Services Board comes into play, but for the moment there is no doubt that improved relations and communications are needed. Happily, steps to this end are being made, through a new and fairly informal liaison forum. The sort of boundary disputes which have occurred are, frankly, no surprise in the wake of such fundamental changes as have been effected. For the experiment to be voted a success, however, they must clearly diminish, not grow.

Simon Young MA (Cantab), MBA, solicitor, is a founder member of the Law Consultancy Network. The opinions expressed in this article are purely personal.

e: simon@syoung.co.ukk