Guest post by Chris Nichols, director of policy and regulation at the Legal Services Board
Nichols: Consumers assume legal professionals are competent
If you were to find yourself on a surgeon’s operating table, on a plane trying to land in high winds or back in the classroom learning your times tables, you would be in the hands of a professional whose ability had been independently checked at some point in the last five years.
But unlike doctors, teachers and pilots, most lawyers do not have any routine check of their skills or knowledge after they have qualified.
So, having survived your operation and your white-knuckle flight, if you find yourself needing a lawyer to defend your liberty or livelihood in court, you will probably have to take a leap of faith. In most cases, you won’t know when the skills or knowledge of your lawyer were last formally assessed. It could even have been in the days of dial-up internet.
These are all professions that are of key public interest. So, on the face of it, this difference seems hard to justify.
Why does competence matter?
Individuals facing legal issues should be able to trust that the professionals working for them have the necessary and up-to-date skills and knowledge to do so effectively.
Most consumers aren’t able to assess the technical quality of the advice they receive. Research tells us they assume legal professionals are competent. They also assume that there are robust checks in place to ensure this, meaning there is a mismatch between what consumers expect and the reality.
Competence also matters to legal professionals, as it is a key ingredient to delivering meaningful access to justice. But in my experience, whilst understandably proud about the overall quality of our legal profession, many lawyers don’t have to think too hard about the last time they came across another lawyer who wasn’t up to scratch in some way.
I’ve heard many accounts of the real-life impact that this has on clients, the administration of justice and also on competent lawyers who have to pick up the slack.
One example of real-life impacts that we have come across is the hundreds of applications returned to conveyancers by the Land Registry each month because they contain avoidable errors. This can lead to delay, higher costs and uncertainty for consumers.
Is the legal sector falling behind?
If we look back to 2012, when the General Medical Council introduced formal revalidation for doctors, ongoing competence was firmly on the agenda for legal professionals.
The Bar Standards Board, Solicitors Regulation Authority and CILEx Regulation were finalising development of the Quality Assurance Scheme for Advocates (QASA), which would have introduced assessment of all criminal advocates at least every five years.
There was a real sense at the time that something needed to change. Judges across the country were coming forward with concerns about competence and these were echoed starkly in a survey of the same year that found that more than half of the 500+ barristers surveyed ‘frequently’ or ‘very frequently’ encountered advocates acting beyond their competence in criminal courts.
But whilst revalidation is now an established part of the regulation of doctors (with evidence of its positive impact emerging), QASA got bogged down in a judicial review, lost momentum and has never been implemented. Following the failure of QASA, the trail has largely run cold on ongoing competence, until now.
Do we need a new approach in the legal services sector?
At the Legal Services Board, we consider that it is the right time to lead an evidence-based discussion on ongoing competence. As the oversight regulator, we are in a unique position to access information and hear perspectives from across the sector, other sectors, consumers and academia. This will enable us to determine whether the status quo can be justified or whether a new approach is needed.
We can benefit now by learning from the approaches adopted in other professional sectors to assess what could work well (and what wouldn’t) in our context. Our aim is to be clearer on how best to protect consumers, support professionalism and maintain the integrity of our justice system.
We know that there are unlikely to be easy answers and so we want to engage far and wide to gather evidence, ideas and perspectives that can help steer us to a consensus on the right way forward. Please help us by engaging with our call for evidence (available here) and sharing your knowledge. We really want to hear from you.
The deadline for responses is 26 June.
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