On 28 February, the Law Society debated reforms for self-modernisation, including a five-year strategic plan to promote solicitors as belonging to an independent and effectively regulated profession.
The absurdity of the Law Society, in the face of a changing world, continuing to regulate only solicitors and not lawyers generally, is demonstrated in two recent cases, one reported, the other not.
The reported case is that of Mr Hylton-Potts (The Times, 19 February), who, despite being disgraced and "struck off", is still able to offer legal services over the internet across 12 areas of work, describing himself as "a leading London solicitor for over 25 years". Thus Mr Hylton-Potts, found guilty of commercial fraud, is able to escape the strong arm of the regulator simply by ceasing to call himself a solicitor, although he remains free to entice clients with claims about his 25 years practising as a solicitor.
The second case, unreported, concerns a US lawyer practising in the UK who has recently entered into partnership with another US lawyer practising in Paris. The Law Society is insisting that the US lawyer practising in London is holding himself up as an English solicitor in Paris, yet he is not, and has no intention of, practising in France. It also requires his partner in Paris to register as a foreign lawyer in England, despite the fact that he has no intention of practising there. So the Law Society, through its tunnelled vision focusing on the regulation of an individual, is in effect saying it has jurisdiction to control the practise of law outside the UK.
The regulation of an independent group of practitioners (solicitors), in an otherwise unregulated general legal market, is a noble aspiration; but if the market does not recognise or value those regulations or the qualifications of the solicitor – or worse, considers them an elite restrictive practice – the aspiration becomes a blind alley for both consumer and practitioner.
Will the next generation of lawyers see the value of a solicitor's qualification if, through a multidisciplinary practice (MDP), it can achieve its legal ambitions in terms of business ownership without either qualification or regulation?
If the Law Society continues to regulate individuals, and not the provision of defined legal services, it will ensure that it regulates an ever-decreasing sector of the legal market. As an example, the regulation of defined services is the approach adopted by the Financial Services Authority in the regulation of the financial services industry, where it regulates the conduct of investment business, whomever it is conducted by.
When MDPs are permitted, the forces of competition will ensure that if the Law Society continues on this path, work will move away from restricted and regulated solicitors to businesses providing the same services in a free and unregulated environment (including the growing band of "struck-off" solicitors who, like Mr Hylton-Potts, continue to enjoy the freedom to practise law without regulation, despite their past record). It is debatable whether, in a commercial environment, clients will be able to evaluate the choice between a more-regulated or a less-regulated environment until after things have already gone wrong.
The breakdown of the traditional, geographic and practice area barriers and the advance of the internet have rendered the regulation of individuals a meaningless and ineffective basis of regulation. The only effective regulation that will protect consumers is the regulation of defined legal services. The Law Society should be directing its efforts, with the Government, to that end.
John Stapleton is managing partner at Thomas Eggar Church Adams