Thinking outside the box

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Posted by Louise Restell, head of public and legal affairs at Legal Futures Associate Russell Jones & Walker

Boxing clever: lawyers need to look at regulation in a different way

Not long ago I sat in a roomful of lawyers and watched their faces as someone tried to explain the principles of outcomes-focused regulation (OFR). Not surprisingly, quite a few eyes glazed over and I didn’t get the impression that many of them grasped how it differed from the existing sort.

I don’t blame them. Unless you are a regulation geek, and despite spending hours pouring over regulatory details during the various stages of the Legal Services Act I try not to be, it’s not something you are going to get off on.

But there is a difference and trying to explain it reminds me of the trouble I used to have explaining the difference between Investors in People and other quality standards. I resorted to an illustration about a fictional company that made coffins.

This company had a standard that all coffins should be six feet long. Providing every coffin they produced met this standard, they might well be able to get accreditation under an ISO quality scheme. But they would not be able to get Investors in People because this clearly wouldn’t be meeting the needs of any customers who needed coffins over six feet long.

It’s an over-simplification, but you get the point. Investors in People is about empowering staff to deliver the best possible outcome for customers. ISO is (or at least it was) about ticking boxes.

This is where I think some lawyers will struggle with the concept. I am certainly not suggesting that lawyers can’t think for themselves but a lot of what they do is process driven, particularly the regulation – it’s about ticking boxes and doing things in a certain way. What the new regime requires is for lawyers not to respond to the process, but the individual.

As an example, someone who works in legal PR recently told me of some conveyancing work she needed done by a particular date, but which was not delivered by the deadline. It didn’t matter that there was nothing legally wrong with the work and that all the boxes were ticked, quite possibly within the firm’s targets for timescales. It was late and so not fit for her purpose.

This leads me back to that scintillating presentation on OFR (it wasn’t actually that bad). Debate at the end focused on whether lawyers should continue to refer to ‘clients’ or to start talking about ‘customers’. It won’t surprise you to learn that I generally come down on the side of ‘customer’. Lawyers will no doubt argue that the word ‘client’ better reflects the relationships they build, and it’s true that this does imply there is more of an ongoing relationship that lawyers nurture and value.

But it also implies a more patronising relationship (for the wordsmiths among you it comes from the Latin cliens meaning ‘dependant’), and this is the crux of the problem. Until the profession can move from a mindset of “you should be grateful that I am your lawyer” to one of “I am grateful you have chosen me to be your lawyer”, outcomes-focused regulation may remain in the realms of fantasy.