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The Future of Law?

 

Whilst trying in 1997 to make sense of how my own predicament came about, I wrote the following article. In hindsight, it is somewhat trite, inaccurate and ill-conceived.

 


 

To: Highlighting shortfalls in public relations initiatives, administration, and regulatory infrastructure in the Law Society of England & Wales.

1. Suggested improvements to member/client interface on matters of actual and ostensible authority.

2. Suggestions as to restructuring client account management employing the establishment of an independently audited account administered by a bank or central or cellular fund (9) accessed by authorised signatories on behalf of DX registration, dual signatures to be required on all withdrawals for both firms and sole practitioners.

3. Establishing a system of monitoring the movements of struck off members permitted to work under the aegis of the Law Society. Publication of striking off in consumer press, not just the Law Society's Gazette.

4. Suggested campaign to raise public awareness of the wisdom of establishing members' credentials prior to engagement with attendant guarantee under the Law Society's own seal (1) above

5. Structuring the Legal Aid fund as totally autonomous and impartial means of facilitating access to justice. Suggest ceilings on types of civil disputes and possible elimination of domestic property/boundary disputes from qualifying. Cellular allocation of Legal Aid Fund (9) on budgetary basis; central fund available for higher court cases rendering more flexible administration of L.A..

6. Elevated lay involvement in administration of Compensation Fund.

7. Extension of wider choice to members as to structured indemnity insurance packages melded with (2.) above. Explore possibility of facility being jointly negotiated with the Council Of The Bar Of England And Wales.

8. Fundamental revision of charges to client and the compulsory provision of written estimates and detailed justification of charges with attendant increased flexibility and self-determination of members with regard to generating work on both reactive and proactive basis.

9. Devolution of Law Society's administration to semi-autonomous regional cells, answerable to the Law Society, with a view to serving better regional and demographic requirements of access to law, facilitating appropriate specialisation amongst cell members. Law Society thus freed to administer standards and facilitate progress and development of administration and development of law.

10. Suggest more proactive role for Law Society in the centralised provision of computerised on and off line access to legal data, precedents, statutes, cases, etc. Suggest establishment of central database accessible by members only, attendant lobbying for security provision and data protection under existing and forthcoming Acts of Parliament - as well as appropriate changes to Solicitors Act 1974 - to protect status of profession, members' interests and client confidentiality.

11. Forge closer ties with the Council Of The Bar Of England And Wales in respect of further/increased representation in higher courts, liabilities of barristers, endorsement by The Bar of counsel extended by solicitors as facilitated by (10.) above as a higher authority/penultimate ombudsman function.

12. Media campaign to promulgate all the above.

RATIONALE

It seems that the legal profession is undergoing profound changes at present, with the pace set to accelerate in the next few years. There follows a concept - an academic exercise - in which devolution features strongly in organisational structure with connotations of a cellular network.

At present, the legal profession is divided distinctly into two with the Law Society regulating solicitors on the one side, and the enormously wealthy and almost unassailable Bar Council on the other. There is a third and increasingly smudged area in which solicitors are competing with 'ambulance chasers' and conveyancing companies on an increasingly unfairly apportioned playing field.

Solicitors have hitherto enjoyed the widespread respect of the public and small business sector as being almost the embodiment of The Law and the custodians of justice. Solicitors, however, remain constrained by the Solicitors Act 1974 and the rules laid down by The Law Society in what ought to be a more proactive and flexible operating environment. It is increasingly apparent that The Law Society seeks to retain a strict control over its members on the one hand, perpetuating the public perception of the profession, yet fails to respond to changes in the administration of law on the other. It is falling inexorably into a paradox in which it exists for the benefit of its members and strives to maintain a mysterious aloofness from its members' client base as if in the hope that public ignorance stifles deeper curiosity as to its actual function.

Solicitors, therefore, have to operate on a reactive basis responding to clients' needs by 'bolting the stable door' instead of being liberated to develop the law on a mixture of pre-emption and response to needs arising. Each solicitor is required to pay significant premiums and contributions regardless of the demographic nature of their client base. Contributions made by individual practitioners and firms in rural or deprived urban communities are disproportionately higher than those made by larger, specialised or city firms. This inevitably results in perpetuating the perception of high and seemingly unreasonable charges being passed on by what ought, for the lay person, to be a ready and affordable access to specific areas of advice or action.

This outline proposal explores a hypothetical evolutionary trail in which The Law Society embarks on a multi-layer restructuring along the lines of the preceding index cover. In an ideal situation, a leaner Law Society which exists to maintain a high level of professional standards would benefit from raised public confidence and might be empowered further to lobby for greater rights of representation - and a closer affiliation with the Bar Council - something the B.C. has resolutely resisted. The Bar Council, however, has relied on its own mystique as being the custodians and exponents of a seemingly dark art and seeks to preserve that fallacy. The reality is that access to the intricacies of law will be facilitated by on-line computer networks, the legal databases for which are set to expand with almost 'Big Bang' tendencies. Again, a leaner Law Society could facilitate access to these hitherto dark arts by taking a more serious look at the services already available from such as LEXIS and the Justis data providers. As the cost of accessing this data is almost prohibitive for the public, and as the public by and large lacks the cross-referencing abilities and knowledge of due process, discovery and so on, it will remain for some time beyond its grasp. The threat will come from those operating in the smudgy areas previously described in which insurers are pressured by practitioners who are not subjected to professional or ethical controls.

Devolving the administration of The Law Society into regional cells, each of which is semi-autonomous and structured according to members' size, specialisation and demographic needs would have the effect of taking the Law Society out of its ivory tower and present the public and business community with a more responsive yet eminently respectable embodiment of law. Overall control would be retained by the Law Society whose role would be more of a custodian of professional standards and ethics; a body that maintains its independence from state control, and one which would be liberated to act in the interests of both the public and its members alike, accordingly promulgating that tangible benefit. With a more efficient administration structured along these lines, a need for overall revenues to fall is not foreseen. Indeed, they might increase but be more fairly and effectively deployed than they are at present in maintaining a top-heavy and outmoded infrastructure. We might even see The Office For The Supervision Of Solicitors becoming redundant altogether, yet maintaining the auspices of the Legal Ombudsman. The Solicitors Disciplinary Tribunal should still maintain its autonomous status, making input to developing the Law Society's guidelines on ethics and standards.

Should The Law Society fail to change in response to the demands of its members and their clients, it might risk devaluing the public perception of its integrity, increasing discontent amongst its members, and by complacency allow a surge in pseudo or para legal services that do not accord indemnity or right of redress on genuine grievances.

I have also mentioned independently audited client accounts through banks. This is one route, but I suspect that it would be more cumbersome than making each member directly accountable to its cell. Cellular client account management might also facilitate the negotiation of more favourable interest rates.

INERTIAL RESISTANCE

The Bar Council is deeply ensconced within the justice system and maintains almost sole right of representation in higher courts. Deeply rooted in convention, and owing much to the development of Contract Law, The Bar and its members nevertheless maintain an aloofness from their clients and therefore strictly limited liability thereto. As the remuneration of barristers has traditionally originated in the receiving of gratuities from grateful clients - there being none when their representations fail - a centuries-old code of honour and ethics has developed which, in a modern commercial environment, places it somewhat at odds with contemporary legal precedents and the process of judicial reform. Whilst Counsel is, in effect, a principal service provider, disclosed by his or her agent, the solicitor, they retain immunity from liability to their client and may never therefore be deemed to be negligent. It is doubtless in the interests of the Bar Council to maintain this situation and enshroud its aloofness in a cloak of mystique, content and on occasions smug in its embodying an ancient honourable profession. The reality is that there are almost fifty-thousand solicitors in England, Wales and Scotland, all of whom have the responsibility of seeking and appointing appropriate counsel who, in turn, pitch with unashamed patronage for the business or 'brief'. The solicitor, on the other hand, has to conduct most of the groundwork in preparing the brief and has had to become far better informed of the intricacies of burgeoning legislation, statutes and precedents. This, in effect, leaves very little for the barrister to do other than prepare for what amounts to a theatrical sales pitch, the script for which has been authored by the hard working solicitor who, ultimately, remains liable to the client. This is obviously an archaic system of facilitating access to justice in an increasingly litigious society.

The Council Of The Bar Of England And Wales will resolutely resist change and will argue, with tortuous and occasionally specious reasoning, for the importance of maintaining the higher authority and custody of ethics that it represents. Both sides of the profession, however, seem to have conveniently obscured the fact that it is the law itself, as determined by government and interpreted by The Judiciary, that is the ultimate authority and should be as unencumbered as possible in its facilitation of the governing of society. At present, the law would seem to exist for the benefit of its exponents most of whom find it to be an incalculably lucrative arena of activity.

LOGISTICAL ANALYSIS

Given the numerical superiority of solicitors and their - latterly - elevated erudition, The Law Society is in the most strategically advantageous position to effect change without direct confrontation with The Bar and The Judiciary. The structure and administration of the profession is largely fragmented, however, with little cohesion in respect of discussing and effecting change on an evolutionary or organic basis. Each member is autonomous and engaged in a severely restricted free-for-all in respect of generating business. The Bar Council would be anxious to maintain this scenario on a divide and rule basis. Cohesion in The Law Society already exists in rudimentary form, however, in that The Legal Aid Fund is administered by regional sub-committees answerable to the central authority which, we are led to believe, is entirely independent of The Law Society. The reality, however, might be somewhat different. Nevertheless, the framework exists to allow the Legal Aid Fund to be allotted to a truly independent body, at the same time strengthening the infrastructure of a cellular network of solicitors' firms. Should the Law Society embark on a process of organic change along the lines of this proposal, then The Bar Council will, as an inevitable part of the process, become more closely affiliated with its more ubiquitous peers who would be invested with most of the expertise and abilities possessed by The Bar. Concerns about the dilution or compromise of ethics will be pre-empted by The Law Society's more proactive role in administering and policing standards that would emulate those set by The Bar.

ETHICAL AND SOCIOLOGICAL CONSIDERATIONS

It would be dangerous to ascribe standards of ethics and morality to The Law as it exists as a consequence of such considerations and deliberations at the time of its proposal and formulation. The Law should therefore be regarded as disinterested in such considerations, instead being wholly interested in its own application, in the broadest sense, wherever it is found to be applicable. The Law is underpinned by inalienable principles of justice; individual freedoms, and democratic process that is, as yet, not reduced to or enshrined in a written British constitution. As a foil to political excesses, the law, interpreted and administered by an independent judiciary, therefore serves as an essential regulator in a minimalist sense, at the same time maintaining a distance from direct state control. In a century that has witnessed the diminishing function of the Christian church as custodian of morals and regulator of behaviour, the populace turn increasingly to the political leadership and the law for such guidance. We are therefore witnessing, as there is a weakening spiritual faction in the regulation of society, an increasingly dangerous polarisation of the remaining two in a scenario where political power is in the ascendancy. State control of administration of law and justice therefore becomes an attractive and increasingly likely option as, some might hold, society becomes effete and increasingly chaotic, especially in the light of increasingly costly access to law. The present structure of access to law - the fifty-thousand or so solicitors - might be perceived as self-interested rather than the historically held view of its impartiality in which it originates in most western democratic systems.

The law itself is permeated with anomalies resulting, sometimes, in contentious judgements as parties to litigation or prosecution might be invested with an imbalance of expertise in the preparation of a case or the process of discovery, based, in part, in the respective means of each party. The devolution of The Law Society, as proposed, would empower cells to attach a wider, collective pool of expertise with an attendant closer affiliation with a broader spread of counsel at its disposal. This would make for a more productive and beneficial form of symbiosis; enhance access to law; assist in the development of law and the reduction of its anomalous nature; pre-empt the temptation to subjugate it to state control, and facilitate a closer professional relationship with The Bar.

LOGISTICS OF CELLULAR DEVELOPMENT - TOPICS FOR DISCUSSION

1. The pre-emption of self-interest by removing the Legal Aid Fund administration to an entirely independent body.

2. Analyse the existing structure of regional committees.

3. Prepare an algorithm representative of a cellular structure to serve optimally regional and demographic requirements.

4. The organisation of regional committees, rotating on bi or triannual basis.

5. The negotiation of cellular client accounts to provide an active and on-going audit facility.

6. The negotiation of structured, specialised indemnity insurances with a blanket insurance to indemnify each cell.

7. The centralised provision by The Law Society of an on-line legal data service, cost of network provision and maintenance to be explored through dedicated, vetted providers.

8. Establishment of dedicated land lines using data encryption to prevent public or unauthorised access.

9. Promulgation.

P. Bantock

July 1997


 

 

Further reading

 

Title or source Author(s) ISBN Publisher/copyright owner Links
The Future of Law Richard E. Susskind 0-19-876496-0 Oxford University Press OUP
Aspects of Confidentiality Richard Tur   Oxford University

Lectures5-6

Richard Tur

A Different Concept of Law Richard Tur 1-85941-641-1 Cavendish Publishing Limited  
Evidence Lawcite Articles Various   University of East Anglia LawCite UEA
The Legal Profession: Regulation and the Consumer Mary Seneviratne 0-421-58740-7 Sweet & Maxwell  

 

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