How Has the Regulation Relating to Solicitors Changed in the UK - Essay Example

School: Topic: HOW HAS THE REGULATION RELATING TO SOLICITORS CHANGED IN THE UK Lecturer: Introduction The role played by solicitors in the legal system of UK is very crucial to the achievement of the goal of equal rights and justice. The performance of roles by solicitors in the day to day administration of the judicial system will however fail to achieve its needed intentions if there are no effective regulations to control them (Abel, 2003). It is against this background that there have always been calls in public discourse, asking for changes in the regulation relating to solicitors. These calls have come to ensure that the professional body of solicitors can be regulated in a manner that satisfies changing trends and needs of the legal system in UK (Herring, 2014). In this paper, a position is taken that the most effective form of change to regulation relating to solicitors can only achieve its intended purposes if the changes are comprehensive and holistic enough. In the light of this, changes that have taken place over the years by way of training system as well as regulatory structure governing solicitors are all subjected to critical review. There will also be a special review of the Human Rights Act 1998 to examine how it has impacted on the regulation of solicitors. The issue of self-regulation by the solicitors’ profession will also be reviewed. Training system for solicitors and how it ensures admission of only ethical individuals Training and ethics are two important phenomena in ensuring quality standard of practice by solicitors everywhere across the globe (Cooper, 2013). This is because through training, prospective lawyers are given the kind of education and professional nurturing, needed to ensure that they go about their duties as exceptional professionals. Meanwhile, a person’s individual ethical standards can also be a determining factor as to whether or not the person would heed to training instructions and practice professionally (Boon, 2014). To reconcile these two positions therefore, it is important that the training system for solicitors in UK will be structured in a way that ensures that only people who can be deemed as ethical individuals are admitted. Indeed many have questioned the importance of ensuring that admission for training for solicitors is based on only people who can be considered as ethical individuals. In response to this, Case (2013) observed that the law profession is a highly sensitive one, requiring strong and high standards of practice to ensure that a practitioner will hold fast to doing what is right. What this means is that lawyers have a lot of discretion in their practice as far as their actions are based on law. For this reason, it is important to ensure that for real justice to prevail, the law profession will be one that is made up of people who have the ethical will to defend the rights and freedoms of people at all times. Based on information available from the Solicitors Regulatory Authority (SRA) (2014), some of the major requirements needed for a person to access the profession include having higher education or university education, undergo assessment of candidates by the Law Society, evaluation of the candidate and acceptance by a law firm, completion of an induction period, examination, and registration with the Law Society of England and Wales. The SRA continues to provide that training during induction period can be conducted by private firms, non-private practice organisations, commercial providers, and universities. The length of the induction period is a compulsory 3 year course, including entrance exam and check before induction. Candidates are expected to have knowledge of different laws including relevant human rights conventions and legislations, principles of EU institutions, sources and interpretation of EU law, and the relationship between EU law and national law (SRA, 2014). The SRA (2014) further suggest a post-induction period assessment and examination involving written exams, oral exams, and exams signed off by the training partner who is responsible with no further examinations. Another important provision under the training system is the accreditation systems and training providers, where efforts are put in place to ensure that selected institutions providing training to candidates are those having the right structures needed to ensure that expected outcomes from candidates can be achieved. Certainly when individuals with poor ethical standards find their way into the law profession, it can be expected that evil rather than good will become the order of the day. This is because such solicitors could find their ways around in ensuring that through bad practices such as bribery, people who genuinely deserve to face the law go free (Barber, 2003). With the training system described above however, it can be said that there are enough provisions to ensuring that only ethical individuals are selected for training. The first aspect of the training system that confirms commitment to ensuring that only ethical individuals are selected is the evaluation of the candidate and the need to ensure that they are accepted by a law firm. Even though it will be admitted that ethics constitute a qualitative feature which is difficult to measure, it would also be appreciated that through careful methodologies, it will be possible for stakeholders in charge to have a fair idea as to the ethical standards of a candidate (Douglas-Scott, 2015). Such methodologies could include the use of ethical questionnaires and interviews. The fact that candidates are required to be conversant with human rights law also means that there could be a measure for ethics among candidates. This is because the more individuals learn about human rights, the better the chances that they would personally develop the right attitudes towards other people’s rights. More to the above points, the post-induction period assessment and examination also facilitates the recruitment of only ethical individuals because candidates who fail the assessment and examination which has components of ethical tests are dropped along the way. Indeed apart from the provisions given by the SRA for the selection and training of candidates, the actual curriculum used in the training of individuals to become lawyers can also be said to ensure that the eventual products that come from the training programmes are those whose ethical standards can be justified. For example the Lawyers Ethics Handbook is incorporated into the curriculum of almost every training institution. Meanwhile the handbook is there to prescribe some of the most acceptable professional ethical standards expected of lawyers. By implication, even after ensuring that people selected for training have general ethical principles, these individuals are also given professional ethical training which focuses directly on the law profession. By so doing, it is possible to ensure that there is a fair balance between personal ethics and professional ethics. Analysing the effect of ethics on the regulation of solicitors, Goudkamp and Murphy (2015) argued that individuals and professionals with high ethical standards present higher chances of abiding by regulations. With this said, it can be confirmed that the selection and training system for lawyers is the first step to ensuring effective regulation of solicitors in UK. Historical perspective of effectiveness of self-regulation by the solicitors’ profession Major evolutions with self-regulation As part of initiatives in ensuring that there will be high ethical standards of practice among solicitors in UK, the concept of self regulation has been used for the past three decades. Self regulation has been used as a principle whereby the solicitors body itself is given the chance to direct and rule on the actions of its members (Kieran, Reid & Bartlett, 2011). In the past three decades, solicitors self regulation has taken place through the establishment of different regulation and complaints handling bodies. Below, three major transitional evolutions are discussed. From Law Society to Solicitors Complaints Bureau (SCB) Davies (2007) observes that before 1986, any complaints that came up against solicitors were referred to and handled by the Law Society. The Law Society acted and still acts as the official mouthpiece and country representation of solicitors in UK. However, the dependence on the Law Society as a regulator of solicitors changed when some events occurred which made many consider the double role of thee Law Society as compromising. As reported by Davies (2007), one of the events was the ‘Glanville-Davies affair’, which involved allegations that the Law Society failed to adequately investigate acts of misconduct among its members. As a result of several media outcry and the outcome of the Coopers & Lybrand Commission, the formation of an independent system that could be trusted by the public was recommended. This was when the SCB was formed. Several analysts have however argued that the SCB was never totally autonomous but only another component of the Law Society (Homan, R. (1991). For example it is known that staff and funding of the SCB came from the Law Society (Davies, 2007). Indeed in the 1990s, there were several attacks against the SCB about how bureaucratic its operations were. The National Consumer Council (NCC) in 1994 expressed displeasure at the bureaucracy, indicating it served as a de-motivation to pursue justice (Robins, 2004). Office of Supervision for Solicitors (OSS) to Establishment of Legal Services Ombudsman (LSO) With mounting pressure on the activities of the SCB and coupled with accusations that it was only semi-autonomous from the Law Society, there was the need for another evolution. This time round the OSS was formed as a new self regulator but the problems were primarily same. For example Davies (2007) noted that the OSS was largely staffed by old employees of the SCB, who have also been noted to have strong alliance with the Law Society. In the opinion of Davies (2000), the idea to make a body such as the Law Society to regulate its own people cannot be prejudiced as a wrong move. If for nothing at all, it is executives of the body that best understands what goes into the activities and works of its members and so it should be the right avenue for regulation. However, the whole idea becomes regrettable once the executives in charge or the regulator becomes compromised with the wrongdoings of its members (Ann, 2002). As soon as this happens, the goal to make the regulatory body stand for and represent the interest of the general public becomes defeated. For example the NCCand Fabian Society in 1998 pressed for the formation of an independent regulator since a survey had showed 40% of respondents saying they had received poor service from the OSS (Davies, 2007). In the light of this, the LSO was formed by s 21 of the Court and Legal Services Act 1990 with the task of overseeing complaint-handling, inter alia, by the Law Society. From OSS to Consumer Complaints Service (CCS) The coming of the LSO still constituted self regulations since its roles were performed inter alia, by the Law Society. However, there were some unique features of the LSO that made it highly acceptable by the general public. That is, the LSO was not allowed to be a lawyer and so its operations and works were conducted through the lay person’s viewpoint (Davies, 2007). In the estimation of many, this was a provision that made a lot of people have the confidence that the LSO had come to represent them as lay persons (National Consumer Council, 1994). It is however worth noting that the OSS was functioning alongside the LSO but the LSO was made to be a shadow regulator of the OSS. In the light of this, the LSO has always released reports on the performance of the OSS, most of which have given negative remarks. Due to the outcomes of the reports of the LSO and pressure from the public, the Law Society in 2004 considered another restructuring of its complaints-handling process which led to the formation of the Consumer Complains Directorate (CCD) and CCS. The CCD was expected to be in charge of complains about poor service whiles the CCS was to replace the OSS entirely with the responsibility of passing complaints of misconduct by solicitors to the CCD (Davies, 2010). How has self regulation affected ethical practice? From all those years that there have been transitions and evolutions with the self regulation of solicitors in UK, this has been done with the aim of ensuring that there will be the highest level of ethical and professional practice among solicitors. Meanwhile, in the past three decades, there have been very serious ethical issues that have come with the self-regulation principle which are worth discussing. The first of these is the issue of control, punishment and deterrence. According to Davies (2003), one of the most important components of any regulation is the need to ensure that it prescribes the right form of punishment for offenders. This is because when offenders are punished in a manner considered acceptable and appropriate, it promotes fairness and justice (Arora & Francis, 1998). What is more, punishment is an important tool for ensuring that there is adequate and maximum level of deterrent among members so that wrongdoings are not repeated. In the estimation of Dare (2009) also, punishments are necessary for ensuring that the solicitors’ profession attain the level of reputation expected of it from the public because it can be considered credible and just. With this in mind, a report in 2003 which looked at a decade of the fallout of disciplinary actions against solicitors from 1993 to 2003 showed that less than 33% of solicitors were struck out for their actions (Davies, 2007). Another issue that commonly comes up with respect to self regulation in the last decade is the case of repeated offenders. Still relating this to the problem of non-deterring punishment, Davies (2008) lamented that a major weakness associated with self regulation in the past three decades is the fact that offenders have mostly been caught in the same offenses again. The reason this situation is so is that for most offenders, what they loss by way of punishment has always been less than what they gain for their actions. For this reason, repeating their offences come at no extra cost to them. The long term impact of this situation has to do with a resulting situation where dishonest solicitors have been allowed to remain in practice. Davies (2007) gives an example to support the existence of this problem by referring to a case where a solicitor found guilty by the Solicitors Disciplinary Tribunal (SDT) for misusing client’s funds was made to remain in practice with only two years of suspension. The excuse by the SDT was that the solicitor was inexperienced and succumbed to misplaced loyalty to close family members (Davie, 2007). Clearly this is a situation of failed-faith in self regulation because the Law Society have constantly showed lack of commitment to being a credible body that boldly makes its members suffer for their wrongdoings (Abel, 2004). Discussion of reforms proposed and implemented in recent times (2007 to 2011) Owning to increasing number of failed-trust in self regulation as the most preferred means of regulating solicitors in UK, calls for reforms were proposed for the formation of more independent regulatory bodies that could function free from the Law Society. Out of the proposals and recommendations, the Solicitors Regulation Authority (SRA) was formed in 2007 as the regulatory body for England and Wales (Stanwich & Stanwick, 2009). The mandate of the SRA extends to include over 11,000 law firms, including those working in-house at private and public sector organisations. Since 2007, the main function of the SRA has been to act in regulating firms and individuals in the public interest (Ladd, 2011). This is a different approach from what had been seen with self regulation where the Law Society emphasised on its members rather than public interest. As part of the need to serve and honour their function, the SRA has been mandated to set professional standards considered minimum for all solicitors to adhere to in order to ensure that their clients get the kind of service they expect (Flores, 2010). It for this reason that the SRA’s function has long been considered as client-cantered instead of the self regulation bodies which were mostly said to be lawyer-centred. Between 2007 and 2011, the SRA’s major mode of professional regulation was done through the use of the SRA Code of Conduct 2007. As noted in its preamble, the SRA had both guidelines and rules in its Code of Conduct. The guidelines were those principles that members are not mandated to abide by but advised to do so since it helped in guiding how they conducted themselves as individual practitioners and firms. With the rules however, members were expected to abide by them to the letter. The rules in the 2007 Code of Conduct were 22 in all and looked at issues such as core duties, client relations, conflict of interests, confidentiality and disclosure, property selling, financial services, rights and obligations of practice, among others. Whiles referring to the reforms that led to the 2007 Code of Conduct, Magloff (2014) opined that the structure of the rules were such that they tried as much as possible to make up for the inadequacies within the Law Society which had not been rigorously addressed by previous regulatory provisions. As a body, the SRA was very particular about getting this done because it was well aware of the motivation and rationale that made its proposal and eventual implementation necessary. This motivation was for it to come as a perfect mediator between the public and solicitors. Apart from the use of the Code of Conduct, there are other means by which the SRA went about its roles between 2007 and 2011 in regulating solicitors. One of these was through the use of the SRA Disciplinary Procedure Rules in 2010. Dated 10 May 2010 and commencing 1 June 2010, the Disciplinary Procedure Rules 2010 came into existence after consultation with the SDT under sections 31, 44D, 79 and 80 of the Solicitors Act 1974. Explaining the rationale for the Disciplinary Procedure Rules 2010, Copeland (2014) indicated that with series of reports of failed adequacy on the functioning of previous bodies which were regulating as part of the self regulation principle by the Law Society, it was only necessary that the SRA would come up with a mechanism that would foster public confidence in the willingness of regulators to punish offending solicitors. In the light of this, the SRA as of 2010 prescribed several forms of punishments considered both deterrent and fair for solicitors. Some of the punishments and disciplinary procedures that were defined in the Rule therefore included written rebuke, payment of penalty, publishing of written rebuke or direction to pay a penalty, suspension, and permanent striking off of members (SRA Disciplinary Procedure Rules, 2010). In pursuant to its quest to ensure high level of discipline among its members, one major approach used the SRA in 2010 was to expand the number of offences and disciplinary powers under Rule 3 of the Disciplinary Procedures Rules. Through this, a lot of attention was given to acts or omissions that were thought to have come about as a result of deliberate or reckless conduct. It would be noted that under self regulation, what were considered by many as ‘soft pardons’ could be given to offending solicitors with the excuse that they were inexperienced (Carasco & Singh, 2013). Because of this, there were those who thought that the early years of their induction was a period for them to get away with several acts of misconduct unpunished. Slashing such favours therefore meant that all solicitors were mandated to be extra cautious and careful in their professional practice, no matter their level of experience as practitioners. One other aspect of the disciplinary powers of the SRA in 2010 that is worth appreciating is the fact that it related the outcome of its disciplinary measures directly to the impact of a solicitor’s acts or omission on a complainant (DeGeorge, 2010). What this means is that the more the loss or harm, the higher the disciplinary and punitive outcomes. Impact of Human Rights Act 1998 on regulation of solicitors Receiving Royal Assent on 9 November 1998, The Human Rights Act 1998 came into force with the aim of incorporating into UK law the rights contained in the European Convention on Human Rights (ECHR). The background to this Act can be traced to series of legal actions taken by UK judiciary personnel which were later overturned in court. Typical of these is A and Others v. Secretary of State for the Home Department [2004] where the House of Lords held that the detention of non-UK nationals in Belmarsh Prison was not compatible with the Human Rights Act of the ECHR (Howard, 2005). Meanwhile defendants on the side of the government had earlier argued their decision based on Part 4 of the Anti-terrorism Crime and Security Act 2001 (Dyer, 2006). The indication that all these backgrounds to the Human Rights Act 1998 give is that if unchecked, there are ways that public bodies may act which are unlawful and incompatible with the ECHR. The Act therefore sets out the fundamental rights and freedoms that people in the UK have access to such as right to life, freedom from torture and inhuman or degrading treatment, right to a fair trial, no punishment without law, respect for private and family life, freedom of expression, right to peaceful enjoyment of one’s property, among others (The Human Rights Act 1998). From the above rights and freedoms that the Act enumerates, there can clearly be a link with the regulation of solicitors by means of ensuring the enforcement of actions of lawyers such that they do not infringe on any of the rights and freedoms of clients. Again, the Act can be related to the regulation of solicitors in ensuring that through the performance of their professional duties, solicitors strive to promote the enjoyment of the rights and freedom by their clients (Rozenberg, 2006). According to the Department for Constitutional Affairs (2006), the Human Rights Act provides that even in cases where Convention rights are engaged, a court may hold that interference with the right is justified. The department goes on further to cite the regulation of the solicitors’ profession in Holder v Law Society to explain that even though the regulation may lead to some form of interference, it is still compatible with the ECHR. This is because in Holder v Law Society, it was held that the Law Society’s decision to intervene in the applicant’s legal practice was necessary for the protection of the public. This means that the applicant’s plea that the intervention was disproportionate, and infringed on his human rights since it prevented his right to enjoy his possession was not acceptable. By extension, the Human Rights Act comes to consolidate the role of regulating solicitors. Current regulation structure applied to Lawyers in England and Wales (beyond 2011) In 2011, the SRA Code of Conduct which was in use was replaced by a new one referred to as the SRA Code of Conduct 2011. This time round, the SRA emphasised on having an outcomes-focused regulation “which concentrates on providing positive outcomes when achieved will benefit and protect clients and the public” (SRA Code of Conduct 2011). This quotation taken directly from the overview section of the new SRA Code of Conduct shows the motivation and rationale behind the set of rules. That is, the SRA wanted to be more focused on what clients and the public achieved from its works. Several public analysts have justified this new posture taken by the SRA, explaining that clients and for that matter the public are the people for who solicitors exist (Phillipson, 2003). This means that solicitors are in professional service because there are clients to serve. If there are no clients, there will be no solicitors. With this understanding, it is important that the SRA through its code of conduct will make clients and the public have a feeling of adequate trust and protection in working with individual solicitors and the solicitors’ profession. Once such trust and protection is developed through effective regulation, the solicitors also stand to benefit immensely. This is because as indicated already, clients will have much confidence to engage solicitors when they are faced with various forms of legal issues (Merris, 2013). By saying that the SRA Code of Conduct 2011 is an outcome-focused regulation, reference is being made to the fact that it sets out service expectations requirements that makes it possible for solicitors to consider how best they can achieve the right outcomes for their clients (SRA Handbook, 2011). This is like saying that the SRA’s new approach to regulation is to set out a set of outcomes that clients must experience by the time they complete a session or engagement with a solicitor. It is for this reason that Bowie (2012) described the new SRA regulation structure as client-focused. This is because the regulations are such that they put the client at the centre of the solicitor service, urging practitioners to show high sense of professionalism which satisfy client needs. Unlike previous regulation structures, one important quality with the SRA Code of Conduct 2011 is the fact that it “is underpinned by effective risk-based supervision and enforcement” (SRA Handbook, 2011). As lamented by Hoffman and Rowe (2006), a major weakness with most regulations that have been used in the past is the fact that the power of the laws are considered in their enactment instead of their enforcement. Once this happens, regulators sit back after setting codes of conduct or laws for their members because the actual will to supervise and enforce the laws become lacking. The SRA has since 2011 showed greater commitment in supervising firms and how these firms work with their clients. This has been done as part of the SRA’s commitment to risk-based supervisor and enforcement as indicated above. It would be appreciated however that the risk-based nature of the supervision is not a very new phenomenon. This is because in the previous Code of Conduct, the recommendation for punishment was also based on the intensity of harm that a lawyer’s act or omission causes to the client. With the supervision component however, solicitors are now more careful in the delivery of their professional duty, noting that their acts and omissions will not go unnoticed. Writing on the justification of what now seems to be a stricter regulation, Copeland (2014) accepted that claim by the SRA that solicitors hold the role of trusted advisers. Because of the trust that clients hold in their lawyers, the regulations are necessary to ensuring that those trusts are not breached. If for nothing at all, breaching the trust of clients may affect individual solicitors and their firms but would also go a long way to affect the noble solicitors’ profession negatively. To a large extent therefore, it is true to argue that the activities of regulators do not only benefit clients but the solicitor body as well. This is because when there is constant disregard for the integrity of solicitors, chances that clients would no longer have desires to use their services are high. The SRA’s new approach to regulation can therefore be justified as it aims to ensure that the fiduciary duties arising from the role and obligation owed to others by lawyer, especially in court are protected. Conclusion The discussion so far make it possible to draw a conclusion as to whether or not current practices by way of regulation of solicitors are more effective in ensuring standard ethical practice than what used to exist before. Indeed comparing eras of absolute self-regulation to periods when the SRA was made to take over as the main regulatory body of the solicitors’ profession in UK, it can be said that things are better by way of regulation today than they were before. The most highlighting moments would have to do with the fact that in the era before 2007, there was no independence between the Law Society and the Regulation Agencies that were set. The regulators were therefore more or less acting to please their masters. 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