Thursday, April 21, 2016

Either lawyers are regulated, or they aren't

No MFs here...

As I commented elsewhere just the other day, when the government abolished legal aid for most private law family matters in 2013 it essentially offered nothing in its place. OK, it did try to patch up the gaping wound with the sticking plaster of mediation, but that policy has failed, as many of us knew it would. It also offered an even smaller plaster in the form of money for advice providers, but the amount was so little as to have no noticeable effect upon the patient.

Obviously, most people with a legal problem would like to have some advice and assistance in dealing with the problem. Equally obviously, if the less well-off in society are denied access to professional lawyers, then they will look elsewhere for legal help. Hence, since 2013 there has been a significant increase in the number of people outside the profession who are offering their services to those who would have previously had legal aid, in particular McKenzie friends.

Now, before I proceed I want to emphasise something that I have said on a number of occasions previously: there are clearly some very good McKenzie friends out there, helping those in need (and, indeed, the courts). This has been acknowledged by the judiciary. I also obviously accept that there is a desperate need for legal help and assistance for those who can't afford a lawyer.

However, there is an elephant in the room.

Professional lawyers are required to be trained, are strictly regulated and are required to have professional indemnity insurance. We must ask the simple question: why are they subject to these requirements? The answer, of course, is equally simple: to protect the public. The requirements ensure, so far as possible, that professional lawyers know what they are doing, that they follow certain standards, and that their clients do not suffer loss if things go wrong.

Those who offer legal services from outside of the profession are not subject to these requirements, and yet they can offer a very similar service to professional lawyers. What we seem to be saying, therefore, is that the better off members of the public who can afford a lawyer deserve protection, but the less well-off do not.

That cannot be right: either the public requires protection or it doesn't; either lawyers are all regulated, or they are not. If lawyers can do the job without the enormous investment of time and money required by regulation, then why bother getting qualified, complying with rules and paying for insurance? If no one really cares about whether or not the public are protected, then let's just scrap all the regulation, and have a free-for-all.

We really need to decide: should the public be protected from the possibility that they may suffer serious loss from charlatans posing as lawyers/legal advisers, or not?

The legal profession is often compared to the medical profession, which is subject to a similar level of strict regulation. Would we ever contemplate doing away with regulation of the medical profession? Of course we wouldn't - what the medical profession deals with is too important. Now, the work of the legal profession is not usually a matter of life and death (but it can happen), so I am obviously prepared to accept that the same level of protection for the public may not be required when it comes to lawyers. However, lawyers do deal with extremely serious matters, that are of the utmost importance to their clients. Family lawyers, for instance, deal with matters relating to arrangements for children, distribution of assets on divorce and even where the parties should live. Are we to say that such matters are so trivial that the public don't need protection from the charlatans?

The idea for this post arose from an email I received from Nicola Ingram, who practises as a paid McKenzie friend. She has written a post of her own, commenting upon the Judicial Executive Board's recent consultation paper proposing reforms to the Practice Guidance on McKenzie friends. She asked me to either share her post (which I have now done) or give my opinion upon it. I have, in fact, already commented upon the consultation here. Apart from what I have said there and above, I haven't really got any more to add, save that I would take issue with Nicola's assertion that the recent closure of several solicitors' practices by the SRA is an indication that regulation does not work: surely, it is the opposite - an indicator that regulation can weed out the bad apples, to protect the public from them in future.

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