Professional Bodies in the New Regulatory Framework

A. Control

i. Expertise

One of the fundamental tasks of professions is to articulate the membership’s demands for autonomy in the way that they conduct their work. Some critics suggest that this is all that professional bodies achieve; that ‘what is done is largely trivial or irrelevant, what needs to be done is left unaccomplished’.¹⁴⁸ One of the consequences of the separation of regulatory and representative functions is that it could lead to the separation of regulatory and subject expertise.

The regulatory body has expertise in regulation, while the representative side has practitioners with day to day practice expertise. It is the practitioners whose everyday experience of practice is the raw material that regulators need. Therefore, the mecha­nisms for gathering this expertise and translating it into regulatory standards need to be effective.

ii. Funding

The operating principle is that the revenue from compulsory charges on practitioners, such as practising certificate fees, should be used for regulating the profession, not for its political purposes. There are clear risks that some activity the Law Society may undertake, for example in relation to education, could be seen as regulatory activity.

¹⁴⁸ MD Bayles, Professional Ethics, 2nd edn (Belmont, CA, Wadsworth Publishing, 1989) at 8; JC Payne, ‘The Weakness of Bar Associations’ (1977) 2 The Journal of the Legal Profession 55.

iii. Regulation

The obvious impact of the new regulatory arrangements is on the breadth of control the Law Society and Bar Council exercise over regulation. The independent regulatory bodies operate under ‘internal governance rules’ made by the LSB.

The LSB is prohibited from interfering in the exercise of an approved regulator’s representative functions, but can ensure that the approved regulator is not influenced by its representative body.^[833] An opportunity to test this power arose in 2012. The Bar Council had spent many years preparing new standard terms of contract for instructing barristers. The BSB took over this work and subsequently sought approval for a new rule introducing the change. The rule change proposed that the cab rank rule, the obligation to accept work, would not apply where solicitors did not accept the new contract, or when they were on a list of defaulters on counsels’ fees in other cases.

The LSB signalled two competition concerns with the rule changes to accommo­date the new standard contract. The first concern was that restricting the application of the cab rank rule may interfere with the negotiation of brief fees. The second was whether a profession-wide measure against a law firm which was possibly in dispute with only one barrister, might be against consumer interests. The LSB then approved the rule change in July 2012, but expressed reservations about the process by which the rule had evolved.^[834]

In June 2013 it was announced that the LSB was to investigate whether the BSB had allowed the Bar Council to compromise its independence by allowing it to influ­ence its handling of the application.^[835] In a report containing 50 pages of analysis and numerous appendices, the LSB reported on its investigation and considered what involvement the Bar Council had in drafting the document, whether there was an attempt to deceive the LSB about the role of the Bar Council and various other issues.^[836]

The Bar Council admitted that, because the issue had been under consideration for many years before the requirement to separate regulation, it had provided advice to the BSB on the issue.^[837] The LSB found that the Bar Council had ‘enjoyed a substan­tial degree of autonomy over the drafting of the proposed changes’.^[838] It concluded that, since the Bar Standards Board ‘did not comply with the principle of regulatory independence, we find that this failure had an adverse impact on protecting and promoting the public interest’.^[839] This example provides an illustration of the sharp divide that must be maintained between representative and regulatory activity.

The professional bodies are now several steps removed from day to day control of regulation. The regulators are not allowed to use any expertise that they may have relating to the field of professional practice. The boards of the independent regulators oversee the operations of regulation by executives and set broad policy objectives. The role of the professional bodies is only to intervene if it appears that their regulatory arms will not meet statutory objectives. So, for example, despite the fact that the BSB is virtually an independent entity within the Bar Council, it is still the function of the Bar Council to change the practice rules.

B. Reconciliation

Increasing differentiation of the legal profession creates tensions between the so- called professional elites, whose interests tend to dominate professional bodies, and the bulk of the membership. There are increasing pressures for professional leaders to be made more accountable to the rank and file.^[840] Inter-professional conflict is by no means new. Examples of these tensions have occurred throughout the history of the solicitors’ branch. It may be that the separation of regulatory and representative functions will clarify these issues, and their implications for governance, for the legal profession.

C. Facilitation

While the representative side cannot actively participate in regulation, it can contribute in a number of ways to the development of professional standards. For example, it can monitor the expertise base and ensure that the regulator is aware of new devel­opments, issues and problems. As a stakeholder, it can contribute to consultations. As a membership body it can complement regulatory activity. It can help members achieve and maintain competence, for example, by providing Continuing Professional Development and other supporting activity.

D. Participation

One of the key justifications of self-regulation is the ‘ownership’ of regulation that this engenders.

There were mixed reactions to the new regulatory arrangements. Over 70 per cent of solicitors apparently believed that the LSB would have too much power over the profession.^[841] Activity on behalf of professional bodies may therefore have been devalued. There may also have been fewer opportunities for participation for junior members of the professions. Lay membership, and lay majorities, for regulatory com­mittees reduced scope for practitioner participation. Meritocratic selection proce­dures favour the appointment of experienced and senior members of the professions to the remaining practitioner places on committees.

E. Representation

One of the primary functions of professional bodies under the new regulatory regime is representation of members’ interests. They can still seek to be joined as parties in court proceedings in matters affecting the profession. In this way they are able to make an impact on judicial decisions affecting their members’ work. Now they have been shorn of powers of regulation, their powers of influence may also have suffered. In addition to their loss of authority, the loss of regulatory power also curtails the power to control directly reputational threat.

There are various examples of how regulatory power can be used to protect reputation. One occurred in the case of the solicitor who represented multi-murderer Frederick West. He proposed to write a book on his client’s case.

Before the LSA 2007, the professional bodies had developed their own research capability and become more ‘conscious of the need to justify their policies publicly and to demonstrate how the public and professional interest may be reconciled’.^[843] It continues to be part of the representative function to anticipate and to deal with repu­tational threats to the profession. It is unfortunate if the profession always seems to be responding to crises highlighted by others, rather than being proactive. The member­ship may, however, be less convinced that research activity is beneficial, particularly when it sometimes casts the professions in a negative light.