The Clementi review must herald reform of the legal profession

16/12/2004

Law, by its nature, will often be complicated, but it should not be a mystery. Yet the truth is that most ÃâÅ#8220;consumersÃâ? of legal services find themselves entering a bewildering universe. Walter Bagehot memorably said of the monarchy that it should ÃâÅ#8220;not let in daylight upon magicÃâ?. This is an unsustainable line for the Royal Family today. It should be equally implausible for the legal profession as well.

The regulatory review headed by Sir David Clementi, published yesterday, will be described in some quarters as ÃâÅ#8220;anti-lawyerÃâ?. It is not, and rightly so. He recognises the crucial role that law and lawyers play in the nation’s life, and resists the temptation to engage in a populist tirade against them. Democracy requires law and those who practise it as much as human beings have need of oxygen. It is a noble calling. There are three areas on which Sir David places his searchlight. They are the regulatory framework in which the Bar Council and the Law Society operate; a complaints systems which many of those who seek to complain regard as a matter of complaint in itself; and the arrangements that prevent solicitors from forming a business with barristers and block non- lawyers from a full role in the management or ownership of partnerships.

In each case, Sir David has offered a plausible blueprint as to how to move forward. In the contentious minefield of regulation, he has wisely opted for a robust compromise. He has rejected either leaving the largely self-regulatory framework in place or dashing towards some vast super-regulator. He has instead floated the idea of a legal services board which would be a referee poised to blow the whistle if demanded, on the traditional regulators. With an appropriate chairman and an enlightened outlook, such a board should possess a light but firm touch. This will strike most observers as a reasonable compromise.

The review has been more forceful on the issue of complaints about the legal profession. This is wholly legitimate. While the vast majority of those involved in the law are admirable souls, there are some individuals and companies that drag down the reputation of the whole profession. An office of legal complaints – a single independent institution to handle all consumer protests – is require to restore confidence in the overall system. Some of these will probably be ill-founded. Enough will have a basis in fact to keep that office in business.

The most controversial element of the review may be that which Sir David describes as ÃâÅ#8220;alternative business structuresÃâ?. It has to be emphasised he would not compel barristers and solicitors to merge with each other, nor is he inviting every supermarket or other ÃâÅ#8220;outsiderÃâ? in the land to charge into the legal business. What he is doing is removing restrictions and providing an opening. There may be good reasons why this is undesirable. The culture and structure of the legal profession is so different from the norm that, in this instance, the burden is on those who favour the status quo to convince others that it should be preserved.

The Times