Hayter: time to consider more far-reaching options
There is a strong case for some lawyers facing periodic reaccreditation and for creating a single badge to help consumers distinguish between regulated and unregulated providers, the Legal Services Consumer Panel said in a report published today.
Responding to a request from the Legal Services Board for consumer perspectives on quality, the panel drew on consumer research it commissioned and found support for lawyers undergoing “a regular MOT”.
The panel also advised that regulators publish complaints and other data that could help consumers choose between firms; that regulators strengthen continuing professional development; and that they consider licensing by specialist activity.
The qualitative research, carried out by public opinion specialists Vanilla, questioned 66 people who have recent experience of accessing legal services or plan to in the next year. The LSCP said it was struck by the range of assumptions about the quality of services. Consumers assume all lawyers are competent, do not investigate claims of specialisation and have inflated expectations of regulators. The panel said it is “worrying” that an assumption of competence means that people think legal services are “relatively risk free”. Consumers focused on service standards, not the quality of advice.
The findings mirror those of research published by the Solicitors Regulation Authority in October, which found that consumers were shocked to discover that not all legal services providers are regulated (see story).
Researchers for the LSCP found “widespread interest” among consumers in lawyers having to submit to regular revalidation or competence reviews “akin to an MOT every five years”. The panel agreed, saying it is “sceptical that a lawyer’s initial education and training offer a career-long guarantee of competence”. It highlighted the fact that doctors are soon to undergo periodic revalidation – a policy the surveys show is in line with consumer expectations of health service providers.
Reaccreditation could include checks such as file review or periodic exams linked to specific practice areas “where the quality risks are highest”, the report suggested. It points out that five-yearly reaccreditation is proposed for criminal advocates under the quality assurance for advocates scheme.
Confusion among consumers over the difference between lawyers who are regulated and those who are not needs to be explained, but not in such a way that they are deterred from seeking legal help altogether, the report said. A “radical option” would be the adoption of “a single overarching regulatory badge”, which while not guaranteeing quality, would at least “provide redress if quality is deficient”.
While specialism is not necessary in all areas of practice – such as transactional work like conveyancing – research indicates that specialists provide better-quality advice than non-specialists. “The benefits and risks of specialisation need to be better understood,” the panel concluded. “Minimum requirements as a condition of practice should be introduced where it is necessary to demonstrate particular knowledge, skill or experience to provide competent advice – this is already happening in parts of the profession [such as by the Institute of Legal Executives and Council for Licensed Conveyancers].”
The report also talked about harnessing “consumer power” to drive up quality standards. Publishing complaints data, customer reviews or success rates could “help inform choice, challenge assumptions about competence and warn consumers that legal services are not risk free”, it says.
The panel says it will “strongly encourage publication” of complaints data, a subject on which the Legal Ombudsman in consulting at the moment, if it is “fair and meaningful” and in a form that is easy for consumers to understand.
Panel chairwoman Dr Dianne Hayter said: “Consumers use lawyers at critical points in their lives, so poor-quality legal advice can have grave consequences. However, consumers lack the expertise to judge professional competence, so they must put their trust in regulators to ensure they receive good advice.
“Regulators need to shift from reacting when things go wrong to actively ensuring that professionals are competent at all stages of their careers. Strengthening CPD requirements is a necessary first step, but the time is now right to consider more far-reaching options, including licensing by activity and periodic reaccreditation.”
I think the periodic reaccreditation idea is an excellent one. It is absurd to think that once a lawyer is qualified they will automatically continue to maintain a high level of competence. However, it won’t deal with the other issues highlighted here whereby consumers don’t understand the regulation of the legal profession or know how to ensure they get high quality legal advice.
It is entirely understandable that consumers focus their attention on service standards since this is an area they can judge based on their wider experience. And I would certainly support the publication of complaints information. But it will be a real challenge to find a meaningful way to ensure consumers understand the service they are buying. For too long the legal profession has held some sort of mystique (and the profession has traded on that!). Simply holding up better sign posts, such as quality marks, is not enough.
There needs to be proper investment in public legal education to ensure everyone is better equipped to understand what services they need and when they need them. We need to find a way to ensure people feel as empowered about their legal rights as they now do about accessing health services and advice, compared to, say, a decade ago. The real challenge, of course, is to do this in a time of austerit, even if it will save money in the long run…