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Source:

 

 

 

Self regulation and the market for legal services

 

Richard Moorhead

Cardiff Law School

 

The government has appointed Sir David Clementi as Chairman of the Prudential to

review regulation of the legal profession. With claims that the solicitors’ profession

have been drinking in the last chance saloon pre-dating the liberalisation of our

licensing laws. Clementi was appointed in the summer of 2003, the review is to

consult in the Spring and complete its work by the end of 2004.

A review of regulation of the legal profession is potentially wide ranging. There are a

range of professions involved in the provision of legal services: barristers, solicitors,

legal executives, advice workers, trade mark and pattern agents, license

conveyancers as well as a whole host of other non legal providers (personal injury

claims handlers being the most visible example).

The complexities of the legal services market and the regulatory structure1 give rise

to fundamental questions about who or what should be regulated: should it be

occupational/professional groups or should it be service markets? Initial indications

are that certain areas will be of only tangential interest to the review (legal education,

the supposed bedrock of qualification being one of those). The principal area of

concern will be self regulation: the ability of the professions to make, monitor and

implement the rules that govern professional practice. There are three principal

drivers of reform.

· First is the increasingly vocal complaints of the competition authorities that

the professions are a last bastion of anti-competitive practices. The OFT

have issued a research report, a consultation and a response to consultation

that make a consistent if somewhat simplistic competition case against the

restrictive practices of barristers and solicitors.2

· The second is the persistent failure of the solicitors’ profession to regulate its

own members with anything like the levels of competence which would

ensure consumer confidence.

· The third is the growing importance and complexity of external sources of

regulation, and non-professional sources of legal regulation. A spaghetti

junction of providers, systems of provision, and regulators has begun to

sprawl across the policy makers desk at the same time as the government

has sought to stimulate market driven response to the general legal needs of

the population.

1 Baldwin Robert, Malleson Kate, Cave Martin, Spicer Sheila (2003) Scoping Study for the

Regulatory Review of Legal Services, (DCA: London).

2 See, in particular, OFT (2001) Competition in the Professions: A Report by the Director

General of Fair Trading (OFT: London) at:

http://www.oft.gov.uk/nr/rdonlyres/e2v5ybukef4g57rpmlzhbvfp6gpdazsj4f5vpx53aconsxbd

ktvaq2733uwkwie3qtd74vdsasfaqhptaviksuzizra/oft328.pdf

2

Opening up of legal service markets: competition and quality – quality and

professionalism/voluntarism

The opening up of legal service markets to less restrained competition is an intriguing

prospect and one on which there is a limited but growing amount of evidence. Lower

costs and more innovative, responsive services is what we are led to expect by

economic theory. To date the personal injury market is the main test-bed of this

strain of policy making, though the opening up of the conveyancing market was an

early predecessor that sought, with mixed success, to encourage competition.

The briefest précis of the conveyancing reforms will suffice: solicitors firms,

threatened with outside competition in the late 80s, cut their prices and began to

compete with each other. Fixed price conveyancing was offered and the relaxation

of the profession’s advertising bans enabled consumers to shop around in a

meaningful way on price (hourly rates, the previous base of any competition,

provided no means of ascertaining the actual price). The substantial reduction in

profits that would have been expected as a result of this price cutting was offset by

the property market picking up with sufficient vigour to shield the profession from the

worst effects of its reduced margins. Prices were set in a more fixed and transparent

way but by reference to (rising) house prices. New entrants into the market, notably

licensed conveyancers, were rather thin on the ground and have not challenged the

dominant position of the solicitors’ profession.

The challenge to the professions monopoly position has not come from alternative

providers but from purchasers: financial institutions have for some time exerted a

powerful influence as referrers of work, able to insist on reduced prices from

shrinking panels of higher-volume producers often referred to as conveyancing

‘factories’ (with persistent allegations that volume and price is achieved at the

expense of quality). In another vein, anecdotal evidence on the quality provided by

high street conveyancers suggests a rather depressing story of second class service

for, in lawyers terms at least, fairly low levels of fees. The only comfort being that

lawyers seem to offer a cheaper service and do a more professionally demanding, or

at least slightly more technical, job than estate agents.

The recent reforms of the personal injury market make the conveyancing reforms

seem rather genteel. The (now) Department for Constitutional Affairs desired market

solutions to access to justice problems. The Access to Justice Act 1999 effectively

prevented legal aid from being granted to most personal injury cases and made the

funding of personal injury work through conditional fee agreements much more

attractive to claimants than they had hitherto been. The result was a shifting of the

personal injury part of the legal aid sector into a peculiarly English brand of

contingency fees, the Conditional Fee Agreement (no win no fee agreements).

These agreements allowed lawyers to be paid their normal fee plus a percentage

uplift of that fee if they won a case. The uplift would be set based on an assessment

of the risk that a case would be lost. The lawyers could use costs from successful

cases to subsidise the cases that they lost.

If the litigant lost, the terms of the CFA ordinarily meant they did not have to pay their

lawyer’s costs. However, the principle that costs ordinarily follow the event, meant

that they were very likely to have to pay the costs of their opponent should they lose.

This would defeat the aim of encouraging people of modest means to take cases

forward under CFAs which they could not otherwise afford. To meet this concern,

insurance could be purchased to protect the litigant from the risk that they would

have to pay the other side’s costs.

3

The claimant solicitor lobby, for noble reasons, sought to ensure that (unlike the US

system) the no win no fee agreement’s success fee was not paid out of the claimants

damages (as they had been prior to the Access to Justice Act 1999), but could be

recovered from unsuccessful defendants. Similarly, the insurance premiums could

also be recovered. In a further innovation, the initial financing of the insurance

premiums and certain upfront costs were met by financing arrangements (‘magic

bullets’) which meant clients with a personal injury claim paid nothing at all. Claims

handling companies, some not even employing CFAs, sought to roll these various

fees up and claim them, along with advertising and other cost from unsuccessful

defendants as part of the success fee plus premium payment payable alongside

damages and ordinary costs.

There was an obvious lack of control over the setting of fee uplifts and insurance

premium charges. Ordinary consumers had no incentive to control the level of these

fees (even assuming they understood them) but insurers were incensed with what

they saw as opportunistic behaviour on the part of claims companies and claimant

solicitors. Litigation ensued and a ‘big tent’ of insurers, lawyers, judges and policy

makers have begun to thrash out solutions to some of the problems.3 Meanwhile,

two big players in the market imploded catastrophically and finance houses have

begun to pull out of the magic bullet schemes. The fundamental problem was that a

‘market’ system had been created which was largely or apparently costless to the

initial consumer, was mediated only by the commercial interests of the insurance

companies.

This troubled history is enough to caution against an uncritical enthusiasm for

markets in relation to professional services. Being credence goods, the marketing

and purchase of goods is prone to information asymmetries and inefficiencies. One

reading of the recent history of CFAs is an attempt by claims companies to exploit

those problems for their own commercial gain. Solicitors too were demonstrably

managing the system to their own advantage.4 Insurers, through the use of satellite

litigation about costs, also threatened huge cash flow problems on their opponents

(claimant solicitors) as their taking of costs cases delayed payouts on thousands of

claims. Only where clients interest are aligned with insurers and solicitors does the

system of CFAs promote access to justice.

It is important not to overstate the strength of this critique. For substantial member of

clients, particularly those with straight forward and cheap to run claims, the system

works to provide them with cheap or costless access to legal services. It also only

takes us so far in understanding the immediate concern of this paper. The events

around the development of CFAs to self regulation is the suggestion that economic

pressures put professions under considerable strain (on occasion, it effectively

prevents them acting in the public interest) but it also suggests a weakness in

deregulation. The market response to information asymmetries appears to be

problematic.

3 See the Civil Justice Council website for more details:

http://www.civiljusticecouncil.gov.uk/

4 Yarrow, Stella and Pamela Abrams (1999) , Nothing to Lose? Clients’ experiences of using

conditional fees? (Nuffield, London); Yarrow, Stella (2000), Just Rewards? The outcome of

conditional fee arrangements? (Nuffield, London) .

4

There is further general evidence that economic pressures on legal service providers

inhibit or reduce quality.5 The quality of service received by clients under CFAs is a

relatively neglected area6 but anecdotal evidence refers to factory approaches to the

‘farming’ of claims, which are processed bureaucratically, without personal contact

between lawyer and client. Substantial bodies of theory point to the risk of under

settlement but actual evidence is more limited and mixed.7 Claims handling

companies have been criticised for their selling techniques. Their use of non-lawyers

worries lawyers and hard-sell marketing techniques alienate some of the public.

They have been criticised for rejecting claims when they ought not to (because cases

are difficult to prove or expensive to run) and of encouraging unfounded claims which

will succeed because of their nuisance value, defendants paying unmeritous litigants

to go way because the costs of a small settlement are lower than defending a case

properly.

The complaint about lower levels of quality can be met in part by the argument that a

market based system may deliver somewhat rougher justice but it opens up the

system to a wider range of litigants than, say, the legal aid scheme did (being only

available to the relatively poor). In other words: you get lots more slightly smaller

bangs for your buck. Indeed, you get bangs without any (public spending) buck at

all. Nevertheless it throws an important light on the need for regulation. Courts have

confessed themselves somewhat inept at dealing with all the problems (see Lord

Hoffman in Callery v Gray, for example) and the range of providers, lawyers and

nonlawyers, and the rapidly developing commercial context underlines the need for

wide ranging but also adaptable regulation.

What is wrong with self regulation?

Many complaints are levelled at self-regulation. Professions, it is claimed with some

credibility, set rules which they do not enforce or routinely ignore. Professional rules

on conflicts of interest are routinely derogated from by City firms, through Chinese

Walls and cones of silence, which suggest a very attenuated notion of traditional

professional values.8 The claims is that this is done because it is what the client

wants, but there are suspicions that the commercial interests of large law firms are

what is really at play. The Law Society’s own management of Inadequate

Professional Services is a case in point. The scheme was legislated by Parliament

on the understanding that it was an informal system for resolving consumer

allegations of negligence and other forms of poor service., Yet the Law Society’s

management of the scheme led to a system which routinely excluded complaints that

smacked of negligence.9 This was directly contrary to parliamentary intention and

5 Moorhead et al (2001) Quality and Cost: Final Report on the Contracting of Civil, Non-

Family Advice and Assistance Pilot (Norwich: Stationery Office); R. Moorhead, A. Sherr and

A. Paterson (2003) Contesting Professionalism: Legal Aid and Nonlawyers in England and

Wales, (2003) 37 Law & Society Review 765-808.

6 Work on early conditional fee arrangements by Yarrow and Abrams being an honourable

exception, see note 4 above.

7 See, Fenn, P, A. Gray and N. Rickman (2002) The impact of sources of finance on

personal injury litigation: an empirical analysis (LCD, London); Fenn, P, A. Gray, N.

Rickman and H. Carrier (2002) The impact of conditional fees on the selection, handling

and outcomes of personal injury cases (LCD, London).

8 See, Griffiths-Baker J. (2002) Serving Two Masters: Conflicts of Interest n the Modern Law

Firm (Hart: Oxford Portland).

9 R. Moorhead, A. Sherr and S. Rogers (1998) Compensation for Inadequate Professional

Services, A Report to the Office for the Supervision of Solicitors (IALS, London)

5

the basis on which the Law Society lobbied Parliament at the time. Both examples

suggest rules and policies are finessed, or ignored, in favour of professional rather

than public interests.

Secondly, professions routinely claim that self regulation leads to higher levels of

quality than can be gained from non-professional providers. This is a claim which

has been shown to be false in a series of studies looking at how non (qualified)

lawyers perform in doing work similar or identical to fully qualified lawyers.10 The

evidence suggests that it is specialism not professionalism that is a better guarantor

of quality. The solicitors profession has recognised this through the promotion of

specialist panels. This segmentation in itself indicates a wariness of the claim that a

professional qualification is of itself a guarantee of quality; and it could be argued that

it is the profession seeking to demarcate itself against other competitors.

Thirdly, it could be argued that self regulation is in some ways sclerotic. The Law

Society has moved tortuously slowly towards permitting referral fees for the

introduction of business and also on the vexed question of Multi Disciplinary

Partnerships. The issues here are not simple. Professional status is at stake, but

there is genuine public interest concern too. Deregulating and permitting lawyers to

have profit sharing arrangements with accountants, and the like may be a gateway to

further Enron type scandals. The conflicts of interest already alleged where

dominant purchasers of legal services use their muscle to reduce the number of firms

who can provide their firms (finance houses and conveyancing; insurance companies

providing legal expenses insurance cover; the Legal Services Commission and legal

aid services; commercial muscle bypassing conflicts of interest regulations in

commercial firms) may be magnified if such services are brought in house.

Fourthly, there has been a persistent and strong concern with the way that

complaints handling has been dealt with by, in particular, the solicitors profession. It

is probably the highly visible and long running nature of this saga that is primarily

responsible for the Clementi review.11 Legal Service Ombudsmen have all raised the

heat on the Law Society to improve but without notable success. The government

too has been boxed in by the need to issue warnings and final warnings which, once

breached, require action. Complaints handling has lacked resources, proper

management, and independence.12 Both professionals and complainants view the

system as biased and inept.

Fifthly, professions are claimed to be better at promoting acceptance for reform

amongst their members, being better placed socially to regulate actual behaviour

through cultural pressure and persuasion. One such attempt to change the culture of

the profession, was Rule 15. This Rule passed by the law Society required firms to

have their own complaints mechanisms and improve the information that they

provide to clients on accepting instructions. The rule was either derided or

10 Contesting professionalism, cited in note 5; Genn, H. and Y. Genn, (1989) The

Effectiveness of Representation at Tribunals, Report to the Lord Chancellor (LCD); Kritzer,

Herbert M. (1998), Legal Advocacy, (The University of Michigan Press, Michigan).

11 There is one caveat to this claim. The Access to Justice Act 1999 introduced the power

to appoint a Complaints Commissioner with power to set management targets and fine the

Law Society. This power was invoked at the same time as the Clementi review was

announced. A government concerned to give the Law Society one further chance could

have invoked the power and seen what happened before appointing such a review.

12 See, Moorhead, Richard, Sarah Rogers and Avrom Sherr (2000) Willing Blindness? OSS

Complaints Handling Procedures (Law Society, London).

6

misunderstood by a sizeable proportion of the profession.13 Resistance took various

forms including non-compliance and a grudging compliance, through prolix and

incomprehensible client care letters being sent to clients which perverted the aims of

clarity and good communication.

Is external regulation better?

If self-regulation is to be abandoned or watered down, one needs to consider the

pros and cons of external regulation. The solicitors’ profession is subject in various

ways to external regulation. Courts, of course, exert some influence through various

costs sanctions as well as other more social means of securing compliance with

judicial ideas about case presentation and case management. Indeed, one of these

thrusts of Lord Wolf’s reforms of court procedure and pre-action behaviour was to

encourage a less adversarial approach to litigation.14 These changes have had

some success15 however, the fundamental point of the reforms: to reduce

adversarialisum and therefore make litigation cheaper and more accessible, was not

met. Interestingly, the subsequent approach to this has been to adopt a partnership

approach whereby lawyers, judges, policy makers and insurers come together to try

and make a simpler, more workable and cheaper system. It is too early to tell

whether such co-operative approaches have worked, but they suggest a resilience in

the idea that trust and cooperation are essential to real regulatory reform.

There are other regulators. Indemnity insurers are, through the monitoring of claims

histories and the demand for requirements such as risk management policies, able to

affect the way that firms manage themselves but it is through the administration of

legal aid that the Legal Services Commission has made the most concerted attempt

to impose external regulation upon solicitor firms wishing to practice legal aid. An

extensive system of quality assurance (the quality mark) require certain management

procedures to be put in place as well as requiring that case work is supervised by

someone with a degree of specialisation in types of cases being handled.16 There is

a growing body of evidence that the quality mark has improved the management of

law firms17 and some evidence that it has improved the quality of advice18 but also

that such systems do not remove a substantial minority of poor performers.

Evidence suggested that upwards of one in five solicitor firms under the quality marks

predecessor (LAFQAS) performed their work generally at levels below competence.

Perhaps more worryingly still, about 30% of cases handles by solicitors in a pilot

(where the solicitors firms would be expected to be of higher quality) were of

inadequate quality. Thus, external regulation may have achieved some

13 Christensen, Christa, Suzanne Day and Jane Worthington (1999) 'Learned Profession? -

the stuff of sherry talk': the response to Practice Rule 15? International Journal of the Legal

Profession Vol 6. No. 1. Pp. 27-69.

14 Woolf , the Rt. Hon. The Lord, (1996) Access to Justice: Final Report to the Lord

Chancellor on the Civil Justice System in England and Wales (HMSO, July 1996)

15 Goriely, Moorhead and Abrams (2002) , More Civil Justice? The impact of the Woolf

reforms on pre-action behaviour (Law Society and Civil Justice Council, London) .

16 The Specialist Quality Mark.

17 Bridges, Lee, Ed Cape, Asif Abubaker and Chris Bennett (2000) Quality in Criminal

Defence Services: A report on the evaluation of the Legal Aid Board’s pilot project on the

contracting of criminal advice and assistance (London: 2000, LSC); Sommerlad (2002)

Costs and Benefits of Quality Assurance Mechanisms in the Delivery of Public Funded Legal

Services: Some Qualitative Views (Paper to the LSRC International Conference, Oxford);

NACAB (2003) Partnership Potential? Citizens Advice Bureau Views of the Community Legal

Service (NACAB, London)

18 Moorhead and Harding (2004) Quality and access, forthcoming.

7

improvements in quality but it has not led to a dramatic reduction in the amount of

sub standard work.

External regulation too has some side effects. It may be sub-optimal in imposing

considerable transaction costs on suppliers. This is one drawback of the Legal

Service Commission approach: where bureaucracy is amongst the reasons given for

a recent exodus of firms from legal aid work. Insurance led risk management policies

have been interpreted by solicitors firms, as requiring them to turn away clients who

they believe may be more prone to making claims against them. It is interesting to

observe that, in spite of the received wisdom that complaints mechanisms are failing,

solicitors fear the impact sufficiently for them to be on the lookout for clients who may

be more likely to complain to ensure that they do not accept instructions from such

people. Thus one of the hidden costs of regulation is the way that it impacts on

access particularly for difficult or unusual clients.

There are other concerns about external regulation. The goals of organisations who

conduct any form of external regulation need careful scrutiny. Insurers have purely

commercial interests to protect. To them, risk aversion makes business sense but to

the public interest where other values come into play this conversion may exclude

sectors of the population or particular types of legal problem. Similarly, the Legal

Service Commission’s approach to quality is related to a need to match the level or

quality to available resources. In one sense, this is inevitable and desirable: it must

be the case that there is a sensible trade off between quality and cost. However, this

trade off has been carefully managed and understood. There are issue of public

governance and accountability to be considered: who decides how the strike the

balance between quality and cost? And on what evidence? Similarly, the

Commission’s approach to quality has been shown to have significant impact on

issues of access: raising quality may well diminish access independent of cost.19

There are other public policies reasons for wondering about the most appropriate

home for regulation, more to do with protection of democratic principles, rather than

instrumental concerns about the appropriate balance between quality, access and

cost. Immigration tribunals issue “certificates of concern” against practitioners they

regard as behaving inappropriately. Highly respected immigration practitioners have

indicated that they would regard such certificates of concern with ambivalence: both

a badge of honour but also something likely to lead to problems with their funders.

The implication of this is that they view ‘quality concerns’ as being used to stifle

fearless, independent advocacy. Similarly, in relation to criminal work, the Home

Office pushes an agenda centred around the control of crime and the need to

process defendants quickly where as criminal practitioners are obliged to focus more

on the needs of their clients and the protection of their legitimate rights. The setting

of quality standards can critically effect how the balance between quality and

efficiency is held.

Finally, it is interesting to note that several external regulators, the Legal Services

Commission and the Office of the Immigration Services Commissioner in particular,

have turned to peer reviewers as a way of measuring and regulating quality. In some

ways this is a sharing of external and self-regulation. These approaches too involve

an interesting melding of professional and institutional values. Some peer reviewers

are concerned to ascertain whether or not solicitors have over charged (e.g. in the

context of cost compliance audits for the legal services commission) others are

concerned to provide a more developmental role, and the legal services commission

19 Cited in note 18

8

is developing peer reviewers as a final quality test to decide whether or not firms

whose performances were worrying should or should not be able to remain within the

legal aid scheme.20

Self regulation and professionalism

Inspite of the doubts about self-regulation, the notion of professionalism, the

handmaiden of self-regulation, has powerful cultural appeal. Sociologist and ethicists

whilst sometime sceptical of its descriptive or normative force, do see

professionalism as having an important aspirational potency.21 It is very difficult to

predict whether ending self-regulation would erode further ethical professionalism or

whether such ethical professionalism stands independent of the mode of regulation.

It is true that the solicitors’ professional body the Law Society, does do a certain

amount of public interest work, lobbying in relation to law reform, for example and

encouraging pro bono work. Whilst cynics might argue that this is a typical

professional body seeking some kind of strategic advantage or reinforcing its high

status image, it is difficult to be too censorious of an activities which demand

considerable energy and impute from the volunteer lawyers that participate.

The Law Society has also sought somewhat modestly to change the culture of the

legal profession by taking the lead in relation to client care. Research into the take

up and application of Rule 15 discussed above painted a sorry picture of failure. This

would seem to suggest that self-regulator bodies are not successful at altering the

culture of the profession certainly one as large and diverse as the solicitors’

profession now is. However, we have no base line against which to judge behaviour

prior to the rule. It is possible that significant improvements were made but also that

large levels of poor behaviour remain.

Let us assume for a moment that self-regulatory professions do successfully promote

modest culture change and modest diversion of the profession away from selfinterest

and towards public interests. In the field of customer relations it has been

pointed out that never the less the profession has not moved sufficiently to keep up

with public expectations.22 A social contract model of professionalism that see the

regulator as protecting the consumer from the information asymmetry caused by a

professional, necessarily desires the pendulum to shift more towards what the

consumer wants. As has been noted already, there are costs to the consumer in

effecting that shift (the transaction costs of improved quality are inevitably passed

onto consumers). A self regulator is ill placed to persuade a sceptical public that

there demands for quality risk prejudicing other interests such as the price they pay

or the likelihood that a service will be available at all. If professional dominance of a

market is based on trust,23 and consumers are not satisfied that the trust is well

bestowed, one basis of self regulation falls away. Put this way, a persuasive case is

made for some form of independent regulation. Independence necessarily means

20 Seargeant, J. (2003) Peer Review in Legal and Advice Services (ASA: London)

21 See, for example, Abel, R L (1989) Taking Professionalism Seriously 41 Ann. Surv. Am L.

41; Nicolson, D and J. Webb (2000) , Professional Legal Ethics - Critical Interrogations

(OUP, Oxford).

22 Legal Services Ombudsman (2002) Reflecting Progress: Annual Report of the Legal

Services Ombudsman 2000/2001 (LSO, Manchester).

23 Dingwall R. and P. Fenn, (1987) ‘A Respectable Profession’? Sociological and Economic

Perspectives on the Regulation of Professional Services (1987) 7 International Journal of

Law and Economics 51.

9

independence from professional self-interest but trust may also demand

independence from governmental and commercial forces.

Some concluding thoughts: is it self regulation or regulation we should be

interested in?

Whilst much of the above analysis and debate focus on the pros and cons of selfregulation,

it is possible to see the debate in other terms. Any future regulator of the

profession will need to think carefully about the techniques of regulation that it

employs. The Legal Service Commission’s success, albeit limited, may be due to the

regulatory techniques it employed more than its independence from the profession.

Equally, a new regulator (if there is to be one) has to perform a rather different task.

A large part of its remit will be to satisfy disgruntled complainants, or to satisfy them

as much as is reasonable, in the handling of their complaints.

The simple fact of independence may go some way to satisfy disgruntled

complainants: one of their principal concerns is the inherent bias in having a system

which has lawyers adjudicating on their own kind. Beyond that though, a need for

regulators to respond rapidly and sympathetically to consumer complaints is obvious

but it would also need to engage with lawyers and their values if it is to accurately

adjudicate complaints. These complaints process have typically been paper based

affairs supplemented by telephone contact and telephone conciliation. Little focus

has been placed on the nature of this process and their relationship to consumer

satisfaction. Much more general work on the nature of fairness in the justice system

has supported the importance of giving ‘voice’ to the lay participates in any law based

process which they are subject to.24 This may well suggest that a regulator should

consider greater interaction with the complainants and consider, in particular, holding

of hearing, virtual or telephone based perhaps, in appropriate cases. There are of

course significant resource implications in so doing and considerable problems in

holding hearings which involve a lay complainant and a professional respondent.

Similarly the regulator will need to keep a healthy distant from legality and the courts.

There is evidence that at least one ombudsman has had difficulty as a result of court

intervening in the decision making process.25

Furthermore, the complexities that arise in the fast moving legal services market, as

illustrated by the conditional fee saga, suggest a need for a regulator who is powerful

and adaptable and not constrained by professional interests. Some Ombudsmen,

although they avoid the nomenclature of a regulator, pride themselves on applying

general principles without developing specific rules and thereby being highly

adaptable to difficult and sensitive commercial and regulator problems.

The regulatory issues that this rather cursory discussion raises suggest that the

problems of regulating professional service markets are not simply ones of

independence, or self regulation versus bureaucratic regulation. A number of values

are at play: access, quality and cost are in tension and a regulator needs to balance

the competition between these three values in a way that is optimal. Simply

understanding what is optimal will be a tall order. The legal profession is adept at

defeating regulatory strategies (this is after all what it is bound to do for its clients to a

degree). Consumerist politics and the conspicuous failure of the solicitors’ profession

24 Tyler, Tom R. (1990) Why people obey the law (Yale University Press, New Haven and

London).

25 Nobles, Richard (2001), Keeping Ombudsmen in their Place – The Courts and the Pensions

Ombudsman [2001] Public Law

10

to respond competently to consumer needs challenge self regulation but there is not

an obvious model to put in its place. 

 

 

 

 

 

 

 

 

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