Modernising the 'modernisers'

The Legal Services Act 2007 is going to be reviewed. The eagerness of the justice secretary is such that, even before the official review, there may be consultations on deregulatory amendments. Of course, he cannot wait – and at the Legal Services Board, where it is perpetually 2007 (one of the requirements of the act), they are playing their Amy Winehouse CDs in advance celebration.

Here are my views on the regulatory objectives contained in the act’s first article. I have been helped by an interesting publication from the American Bar Association (ABA). I have reported before that the ABA has a Commission on the Future of Legal Services. It has recently published two linked documents – one on new categories of legal service providers, and the other – the interesting one – with a resolution to be voted on soon, containing a list of proposed ABA Model Regulatory Objectives. The two are linked because the first paper discusses legal services provided by people other than lawyers, and the ABA felt it was necessary as a result to formulate regulatory objectives for the provision of all legal services, including by non-lawyers.

To deal with the legal service providers paper first, and briefly, it contains no new or revolutionary ideas. In fact, it specifically eschews such things, and merely describes the various paralegals who are already recognised by some state courts, mainly to help those who cannot afford a lawyer to negotiate the court system. It repeatedly stresses its limited scope. So there is no discussion of ABSs or the regulation of on-line legal services providers.

The regulatory objectives paper is much more significant, mainly because it is effectively a commentary on our own 2007 objectives. It does not say that, but states clearly that our own objectives were among those considered. In fact, it follows the order and content of our own rather closely, and so the differences become obvious. (Interestingly, it turns out that regulatory objectives are something of a growth industry – nearly two dozen jurisdictions have either adopted them or are in the process of doing so, practically all of them common law countries.)

There are two words, much beloved by the Blair government which was the source of the act, and doubtless as dear to the justice secretary, which do not appear in the ABA’s proposal. The two are ‘competition’ and ‘consumers’. Their absence makes those words’ ideological origin starker than they might otherwise appear. The ABA proposals begin with the same as ours: ‘protection of the public’ (as against our ‘protecting and promoting the public interest’) and ‘advancement of the administration of justice and the rule of law’ (compared to our ‘supporting the constitutional principle of the rule of law’). Then we have ‘improving access to justice’, while they have ‘meaningful access to justice and information about the law, legal issues, and the civil and criminal justice systems’. So far, so similar. You might prefer one or the other formulation, but they are trying to convey the same message.

But where we have ‘promoting competition in the provision of services’, they have ‘delivery of affordable and accessible legal services’. In other words, there is no foregone conclusion in the ABA objectives about the means of provision (competition, competition, regardless of the outcome), only a focus on the desired result. That seems to me much better, and shows that ideology does not have to distort our legal services vision forever.

Next, where we have ‘protecting and promoting the interests of consumers’, they have ‘transparency regarding the nature and scope of legal services to be provided, the credentials of those who provide them, and the availability of regulatory protections’. But where is the Blairite buzzword ‘consumers’, to be used as a flexible stick to beat service providers into whichever direction you care to drive them? It has been omitted, and again there is a focus on the end result.

There are other, lesser differences. They have incorporated some of our professional principles into their regulatory objectives. It being America, there is more emphasis on diversity and inclusion.

But so far as the ‘competition’ and ‘consumer’ themes are concerned, the ABA does not rate them. Critics will point out that the ABA is a lawyers’ organisation, biased in favour of an outcome to protect lawyers’ interests. (You know, we can never trust lawyers.) But the ABA’s substitute words show the opposite, and list public interest outcomes phrased in terms of specific legal services objectives.

I submit the American draft to the attention of the justice secretary. Go on, focus on what kind of legal services we need, rather than forcing all services through a template of political preconceptions. New Labour apparently modernised us; it’s time now to drop their slogans. (Doing so will also enable the Legal Services Board to start listening to Adele’s ‘25’).

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs