Legal Services Act: independent bar will fight to survive

Barely is the ink dry on the Legal Services Act 2007 than people are beginning to speculate on what the future holds. Will legal services be provided from alternative business structures (ABSs)? Will private equity funds invest in partnerships? Will the Government try to use its muscle to procure legal aid services through one-stop shops or ‘Tesco law’?

Before indulging in speculation, it is worth reflecting on the act as it now is.

– The Legal Services Board (LSB) will now be appointed only after consultation with the Lord Chief Justice. The Lord Chief Justice will be able to publish his advice. In a mature democracy such as ours, this will just be enough to preserve the independence of the legal profession from the state.

-Front-line regulators such as the Bar Standards Board (BSB) will not be subject to LSB interference unless the failure of the regulator is not just a failure, but is ‘unreasonable’, introducing a sensible Wednesbury test.

– Those who receive unjustifiable complaints and who cooperate in the handling of a complaint will not have to pay the costs.

– The Office of Legal Complaints (OLC) will be able to take advice from the front-line regulator. This is important for the Bar Council, as the BSB has a good complaints-handling record and uses highly skilled experts to examine and report on complaints. The Bar Council did not want its members’ skills to be lost because only the OLC would examine the complaint. The council will press for the BSB’s advice to be made available to the OLC when it starts up.

These and other concessions were achieved after a great deal of hard work. Next comes the drafting of the regulations, which will also require attention to the detail. It is important that the profession is not loaded with costs charges because the LSB and the OLC are becoming ever larger and more bureaucratic.

The regulations should be drafted to reflect some golden principles of good regulation, which are:

– Both complainants and the profession want complaints to be dealt with quickly, firmly and fairly. The LSB, the OLC and the profession will be damaged by delays or inappropriate outcomes.

– The public and the profession want the system to be economical.

The BSB is a modern, independent regulator. There is a common interest in good regulation for both the profession and the ‘consumer’. Hopefully the LSB will not have much to do with the BSB because the BSB should do its job well and be allowed to do so by the LSB.

What about business structures? Will the referral bar become a thing of the past and will barristers be swallowed up in firms, LLPs or corporate entities?There is no market need for the privately paid bar to move into partnerships or other models. Barristers will not want to, as they like to obtain their work from as many sources as possible and they would not want to be conflicted from acting against other members of their chambers or ABSs. Also, solicitors or other agencies that use the bar’s services will want the best choice of advocate for the job at the best price.

A barrister’s skill and ability will be what attracts the work, and barristers will keep their standards high to attract it even if there is some in-house provision – after all, in-house provision has been around for nearly a decade. The bar rises to competition and will continue to do so.

The greater risk to the referral bar would come through the Legal Services Commission (LSC) paying one fee per case to solicitors or ‘One Case One Fee’ (OCOF). In family cases, jokingly at the bar, it is called ‘F-OCOF’. This idea is unworkable in anything but the simplest cases, and even then it is unattractive. It will not work in the Crown Court, nor in family work.

The Bar Council is working with the LSC on issues relating to fees and it is making its argument against OCOF, which I believe the Law Society shares. I doubt the LSC really wants to cause those who cannot afford a private lawyer to be driven into a second-class system that delivers through one-stop shops.

Timothy Dutton QC, chairman-elect, Bar Council