The Future

It is perhaps still too early to say whether there will be discernible, long-term impacts of the new systems of regulation. The LSB claims that new business entities are more efficient in responding to initial complaints.²²⁴ Its report said that, in 2012/13, ABS resolved 93 per cent of complaints received, LDPs 88 per cent and other organisa­tions 83 per cent.

An ambiguous piece of information is the falling number of calls received by the SRA Professional Ethics Helpline over time (from nearly 67,000 in 2006/07 to just over 58,000 in 20 1 0/11).²²⁶ This fall could be explained in a number of ways. It could be that the Solicitors’ Code of Conduct 2007 was clearer than what went before, reducing the need for guidance. It could be that solicitors became less concerned about ethics over the period. It could be that they were seeking alternative sources of

²²⁴ J Hyde, ‘ABSs “more productive” than traditional law firms says LSB’ Law Society Gazette 22 October 2013.

²²⁵ LSB, Market Impacts of the Legal Services Act: Interim Baseline Report (April 2012) at para B.8.4 (www.legalservicesboard.org.uk/what_we_do/Research/Publications/pdf/market_impacts_of_the_legal_ services_act_interim_baseline_report.pdf).

²²⁶ ibid, at para C.11.4.

advice. It could be that solicitors were anticipating their increased freedom to make ethical choices.

It would be foolish to think that OFR marks the end point of experimentation with regulation of legal services. Recent research for the Legal Services Board suggests that policy in the legal services market is still be too ‘regulatory’ in orientation.^[1222] The SRA, on which the study was based, was said to have fair regulations for entry.

In future, it is possible to envisage further rationalisation of the infrastructure of regulation. For example a single regulator may emerge, either from one of the exist­ing ‘front-line regulators’ or in the form of a state agency. In this event, it is unlikely that the conventional professional groupings and codes of conduct would remain functional. In that event, regulation might be applied to groups in different ways using different regulatory strategies according to the type of activities undertaken and the type and level of risk.

There are various options for alternative kinds of regulation within the legal ser­vices market. First, there could be regulation of each reserved activity, for example, litigation, advocacy, probate. Secondly, there could be regulation of selected areas of legal specialisation, for example, corporate law, property law, intellectual property. Thirdly, there could be regulation of different classes of entity, for example, ABS, LLP, large firm or small firm. Finally, there could be regulation, as at present, of groups of lawyers, perhaps organised along new lines, for example, international lawyers, corporate lawyers, private client lawyers.

Another possibility is suggested by the research conducted for the LSB.^[1224] This proposes that the current, entity-based regulatory strategy is expensive. An individual and rule-based approach could allow easier entry to the legal services market and, therefore, greater competition. It recommends that consideration be given to placing greater emphasis on ‘after the event’ remedies, such as insurance and compensation, rather than proactive regulation strategies, such as training, guidance and monitoring.

There are fashions in regulatory regime. The regulatory transformation of the legal profession occurred during a vogue for regulation using broad principles rather than rules. The legal profession has adopted outcomes-focused regimes without much resistance. It is far from clear that it is suitable for all kinds of legal practice, par­ticularly smaller units, which may be more effectively regulated within a framework of rules. Contradictorily, codes of ethics remain the government’s solution of choice when scandals occur in the public facing organisations for which they are directly responsible.²³⁰

One of the most significant regulatory changes may be the change in the focus of regulation away from individuals to organisations. This can be seen as part of a delib­erate attempt to manage a shift from occupational professionalism, where a group constructs its own occupational identity, to organisational professionalism.²³¹ In the latter form, a discourse constructed from above is used to promote and facilitate occu­pational change. This is driven by organisational objectives rather than occupational ones and achieved through hierarchical structures and managerialism. This ultimately limits the discretion of professionals, potentially squeezing out the service ethic from professional work.

IX.