The Bar is not a unitary profession any more, nor is it under single control. Access to the complete content on Law Trove requires a subscription or purchase. . It is essential that the legal profession is well regulated. Sometimes that duty involves telling the court about matters that the client would rather not be revealed. So there are many, perhaps the majority of the population, who could never contemplate accessing the individual advice of a barrister or a city solicitor. Find out how you can help, The BBC - Protecting it from the Government. That is why it is legitimate to be concerned about the possible move of many lawyers, barristers, solicitors, conveyancers, legal executives, into corporate entities, where the corporate personality might be perceived to be the dominant one. Who are the regulators? Many depend on a few large firms for much of their work, or on legal aid. It was an unexpectedly moving occasion, not only because of the loss of the presence of judges of distinction and wisdom who could, at the appropriate stage, make a great contribution to the work of the legislature; but also because of the keen realisation that their distinction is recognised worldwide, in part because of their former inclusion in the Lords and of course because of the part they play in the shaping of the common law, their judicial work being accepted as amongst the finest in the world. Professor Deech's 2008/09 series of lectures focussed on the legal and ethical issues surrounding reproductive medicine. This can be broken down into three broad goals: The third is a new portal for complaints about lawyers’ poor service, the Legal Ombudsman, although charges of professional misconduct are still reserved to the professional body, the BSB in my case. Her 2009/10 series of lectures focused on the place of various family relationships within the law since the 1960's, from divorce law to civil partnerships. That is the bad side, and it is that image that has driven reform. He said that there should be unimpeded access to the courts in order to secure human rights and the rule of law and that there can be no judicial development of these concepts unless the cases are brought to court by the lawyers, often acting under the cab rank rule. In the last of three articles describing the history of ethics and the legal profession, Mark Humphries looks at the development of professional regulation and considers future ethical challenges Professor the Baroness Deech of Cumnor DBE was the Gresham Professor of Law between 2008 and 2012. On the governmental side, she is depicted as the woman in the street needing advice about a divorce or her tenancy. PRINTED FROM OXFORD LAW TROVE (www.oxfordlawtrove.com). Gordon Turriff QC of Canada puts it like this: “the judgment of lawyers should not be influenced by any consideration other than the need for them to discharge the loyalty they owe each of their clients, subject to the higher duty to themselves, the court, the state and fellow lawyers.” There are several potential conflicts here which could bear analysis, but the general meaning is that the lawyer needs to be independent in her handling of her client’s case and also of the government. The welfare of the users of the Bar has to be our first consideration. Insurers, too, have great power because the rise in premiums might prevent lawyers doing cheaper or more adventurous work. Those qualities militate against fusion, even though solicitors are practising advocacy. This is part of Baroness Deech' series Regulation, Regulation, Regulation. It also reminded me that the Bar, which I regulate as Chair of the BSB, is the main supplier of judges and that the quality of the Supreme Court’s development of the law is and will be inextricably linked to the quality of the young barristers who join the profession. The genesis of change, as with so much of English law today, was partly European. In an age when social mobility is a trope: when it has been impeded by government policies in education, such as university fees, and yet is demanded of the professions, the Bar of England and Wales has a proud record. Which professions are regulated? The legal profession in England and Wales is split up into two main categories to reflect the two broadly different roles within the legal system. This is usually a right only given to barristers. Law is a profession and an industry: It should be regulated that way. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a title in Oxford Law Trove for personal use (for details see Privacy Policy and Legal Notice). Other businesses have been affected by, or improved by deregulation, free market competition, the dominance of client choice and consumer sovereignty. Those within the legal profession have specialist knowledge of the various principles, rules and laws that govern the English le… Legal aid has been cut and will be cut even more in the management of the UK budget deficit, and I will return to this issue as it bears on the independence of the legal profession. For the purposes of this hour, I will concentrate on the best known branches of the legal profession, the Bar (about 15000) and the solicitors (about ten times as many.). Jobs that require a licence are called regulated occupations. Her 2011/12 series of lectures focussed on regulation across a range of public bodies, including higher education, the BBC and the legal profession. It is clear that referral fees should be banned, and on welcomes the recent ban relating to them in personal injury cases in the Legal Aid, Sentencing and Punishment of Offenders Act 20912. During this period, Professor Deech held a number of highly prestigious international positions within academia, the legal profession and beyond. Gender, race, and diversity in the legal profession. The Bar will regulate entities that offer, as entities, what the Bar offers as individuals – specialist advice (including that given by the employed bar) and advocacy. The Bar is subject to further de facto controls: there is a new Judicial Appointments Commission, the Code of Conduct is growing in bulk; its work is moulded by the requirements of legal aid; advancement to the position of QC is also through a commission, and another external body will administer the proposed new scheme of advocacy assessment. Editor’s Note: The author has traced the history and development of the legal profession in England since the twelfth century. And we hope that the spirit of independence is infectious. As Lord Denning said, quoting Fuller: “be you ever so high, the law is above you.” And by that he meant not the hierarchy of regulators but the rule of law. Their independence is less frequently mentioned but has occasionally been regarded as under threat, in particular since the reforms brought about by their own past conduct. A very important product of the independence of the Bar is the consequent independence of the judiciary, both in terms of mindset and in action. In the past, the need for wealth in order to secure or become a lawyer was conveniently overlooked in protestations of universal justice and independence.[2]. An independent review of the regulation of legal services was announced by the then Minister of Community Safety and Legal Affairs, Annabelle Ewing on 25 April 2017. Clients in future will need to know that in-house advocacy in ABSs is not the only option: in their interests, the access of regional solicitors’ firms to the Bar needs to be kept open, and clients should be protected from the corralling of barristers in big firms that have in house advocates, reducing their availability at large. And the Office of Fair Trading wanted the same, both organisations aiming at existing restrictions on forms of business organisation and conduct. Indeed the FSA is about to be dismantled. If barristers work in entities with solicitors, the distinction will be hard to perceive. These bodies directly regulate the lawyers practising in England and Wales. Common lawyers take for granted the rule of law, but there have been recent attempts to spell it out, more so in times of crisis for the law. Could Streaming Change the ‘Classic Film’ Canon? The Bar still controls who becomes a barrister, through the Inns and by the BSB’s authorisation of providers of the Bar Professional Training Course, subject of course to the law of the land in relation to discrimination and equality. We need appropriate checks and balances in place to ensure that self regulation does what is necessary to reinforce independence, that is, organise the profession to ensure that its members genuinely support the rule of law and the proper administration of justice. Britain’s legal profession is renowned the world over for its skill and independence. This is important, given that the LSB has the power to fine, and to levy fees for its support from the profession, which has no way of challenging the budget, save through – a central government department! It has moved out of the reach of the middle classes. The pendulum may swing too far in the opposite direction. Each country is responsible for updating information, on its regulated professions, competent authorities and statistics. It fosters independence, not just of practice but of spirit, the shouldering of responsibility for the decision, regardless of anything except the client and the court; it allows for the most advanced development of the skill of advocacy; it ensures that even the most unpopular of clients has representation; it provides a system whereby a barrister may stand up to the government on behalf of, say, a terrorist, without being identified with the client; it fosters the highest standards because each barrister is the object of her fellow barristers’ inspection and competitive spirit; it provides the collegiality and protection of the Inns; its very existence is a guarantee of the rule of law because the loyalty is to the client and the court, not to the earning capacity of the entity. The Clementi recommendations are, by and large, enacted in the 2007 Act and carried out by its creature, the Legal Services Board (LSB), which is non-lawyer dominated. Of course, it cannot fully eradicate the risk of harm. The profession started to be regulated and to extend its reach to civil as well as ecclesiastical law. Nevertheless barristers are now in a minority on the Board of the BSB. The advocate, usually a barrister, is court-facing, supporting the civil and criminal justice system as administered in the courts, giving advice as a preliminary to, or as an alternative, to going to court, owing a duty to the court above the demands of the client, if they clash, and thereby assisting in the development of the law by the judges and their ability to do justice impartially. Public users are able to search the site and view the abstracts and keywords for each book and chapter without a subscription. Even Richard Abel, a writer who casts a critical eye over this high-minded approach [11] accepts the need for a profession that mediates between citizen and state, redresses civil wrongs, manages family disputes and articulates human rights. In 2004 she stepped down from her positions at Oxford and became the Independent Adjudicator for Higher Education (2004-2008). 2. My impression as a non-practitioner, but a student and teacher of the law is that there is great merit in the division. The BSB has achieved a satisfactory level of independence from the Bar Council and it needs to get this message over to the public. The social context of the legal profession, 3. Self regulation, if left unchecked, can become self interest. How is the paralegal profession regulated by attorney ethical codes? Now that I am in the position of administering parts of it, the LSA seems to me to be a rather unsatisfactory piece of legislation. The legal profession is regulated in several ways. All Rights Reserved. Clementi was trying to reconcile at least three different drivers of regulation. He points out that while the Bar claims to need a distance between the advocate and her client in order to meet conflicting obligations to adversaries and the legal system, this is inconsistent with the demand of the Bar in the last 20 years for more direct access (simply in order to compete with solicitors). It also sits uneasily with the demand, voiced on behalf of the consumer, for accountability and regulation, often where trust was once sufficient (cf the medical profession and hospitals, banks and lawyers). This could greatly restrict justice and choice in small towns where there are not many barristers, especially those who specialise in e.g. The Legal Services Act 2007 facilitates the relaxation of the structures of working that lawyers have known for decades and governs the regulation of all branches of the legal profession. Why does independence matter? Proper self regulation ought to be possible and effective if the profession follows the Nolan principles of integrity in public service and above all controls misconduct swiftly and decently. [17] The Consumer Panel and the OFT are to advise the LSB on the appointment of approved regulators of the new legal entities. This takes the form of gradual obliteration of the dividing lines, while solicitors have high court advocacy rights. There was established the FSA and light touch regulation. We have not heard much from the public about what they want, despite the proliferation of consumer panels and surveys; maybe the issues are just too complex and variable depending on the economic climate and the simple desire of the public, I guess, for direct affordable legal advice is thwarted more by that than by the lawyers themselves. The other lectures in this series are: Lawyers need to have clear guidance regarding what is or is not expected of them. The UN Basic Principles on the Role of Lawyers 1990, [7]The Code of Conduct for Lawyers in the European Union (1988) and the International Bar Association (Standards for Independence of the Legal Profession, 1990) have all laid down principles of self regulation and unimpeded access to clients. Posted on June 2, 2011 by amysalyzyn. Simply, it is the lack of legal aid and affordability. Why is the legal profession regulated? The Bar Issues Commission has compiled a list of organisations that are responsible for regulating the legal profession around the world. The rule of law The nature of the job that they do clearly requires knowledge of the law and procedure, and skill in advocacy, which abilities will not be found in every candidate and therefore need to be tested. Its report ruled out partnerships, came down in favour of a two-branch profession and stressed independence and self-regulation. Having a lay majority has its benefits but also its drawbacks in lack of knowledge of how practice works. And it is accordingly recognised that the barrister is not himself or herself to be identified with an unpopular client. ABSs are not allowed in the USA and Germany has urged an international stand against them. Therefore, it is important to society that the legal profession is well functioning and delivers good quality advice at a fair price. The two branches of the legal profession Regulating health and care professionals is designed to limit the risk of harm occurring to us when we receive treatment or care. There is therefore a real threat, with only the wafer thin possibility of judicial review as a shield. Reform has been formulated expressly to curb the independence of the legal profession, building on the feeling that it is a self serving gentlemen’s club. Can the LSB advise me on reserved legal activities, and what activities are currently regulated? Another problem is that the new working structures are backed by no practical evidence at all to show that they will offer improved services to clients. No, the LSB cannot advise on reserved legal activities as it does not have the statutory power to enable it to provide specific legal advice to members of the public or businesses about how the definitions of reserved legal activities might apply to a particular set of circumstances. 2. Lest it be thought that I am suffering from regulatory capture, let me first list why it is so widely believed that the governance of the Bar should be taken out of the cloisters of the Inns and the Bar Council and led blinking into the daylight of Westminster and Whitehall. The LSB can recommend cancellation of designation as an approved regulator if the regulator has not observed the regulatory objectives listed in the Act, which include the interests of consumers. Gresham College receives no government funding. [8] It is to enable clients and organisations to challenge the government of the day; it is to secure interpretation and application of the legislation by persons without conflicting loyalties. It has been asked why the changes that have affected business globally should not transform the business of the lawyer. At a conference of European lawyers 18 months ago, I was asked by the delegates from a state newly liberated from Communist rule whether the English legal profession had not lost its famous independence .       The BBC - Defending the public interest You can see which professions are regulated and who their regulator is below: Profession Regulator Arts therapists Regulation of the profession should ensure adherence to … family law. The reason why professions are accorded this privilege is that governments trust professionals to be able to put aside their self-interest in favour of promoting and promoting the public interest. Copy this link, or click below to email it to a friend. It may be difficult for non-lawyers to appreciate why there is virtue in the separateness of the Bar, especially when other common law countries have fused professions and make equally valid claims to independence. It is, after all, one of the stated objectives of the LSA 2007 to encourage a strong diverse and independent legal profession. 1. In the main, regulation is by the Law Society of Scotland, which has a two-fold statutory duty to promote the interests of the profession and also the interests of the public in IT, flexiworking, outsourcing should make advice more readily obtainable and cheaper. There is also a move to fragment the professions within themselves and against each other. Hardly the moment at which to undermine confidence in the professional relationship by emphasising the possibility of complaint, all the more so as if the client is found guilty, he is bound to want to object in one way or another. Lest this be thought to be professional self serving, it is echoed in international conventions. [6]. The most recent figures indicate that around 15% of new pupillages are taken by BME graduates and that women, as in other professions, form a good half of the entrants. She is Chair of the Bar Standards Board, a position she has held since 2009. First of all, legal advice is too expensive (although cost is not a regulatory matter). The Importance of independence It may be that it has irretrievably gone, because solicitors’ actions are circumscribed by the need of their firm to make a living for all its members. Retention is another matter, and its shortcomings are not confined to the legal profession. Copyright © By Akshay Dinesh Shah, NUALS. The bar and the solicitors should agree on differentiating their professions. If you cho… If we ever become downhearted, we have but to remember what Erskine said on representing Tom Paine in 1792: “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject in the court where he daily sits to practise, from that moment the liberties of England are at an end.” We have very good reason in the current climate to be grateful to the Bar for its ability to defend the citizen from her government in many countries of the world. The profession was no longer to be self regulating, but overseen by a new Legal Services Board; its powers were to some extent to be devolved to the current front line regulators, for these purposes the Bar Council and the Law Society, but they are both obliged to separate out their regulatory and representative functions (just as the GMC and the BMA are separated). The Legal Profession: Article: Self-Regulation of Legal Profession in Canada. This This comprehensive directory will be useful for bars who wish to check on the qualifications or disciplinary records of lawyers from other countries and for lawyers and law firms interested in cross border working. [14] I note that there has been no similar onslaught on the practices of doctors, (unless one counts the new powers to be devolved to GPs to organise commissioning of services) albeit that their effectiveness has been weakened by the European restrictions placed on their working hours and the inability to test their working command of the English language. Mark Cohen’s title Law is a profession and an industry: It should be regulated that way states what we all recognize, but somehow do precious little to regulate in an appropriate way, denying opportunities for clients and lawyers to create more value for society. A number of professions in Ontario are regulated. It had grown, and more barristers were working in employment, competing with solicitors for the business of price conscious clients. I am no economist, but would not be alone in pointing out that meltdown and bank collapses resulted and the FSA seemed to have no power to prevent any of this or stop any innocents from losing. Regulation of the legal profession is effectuated through a state regulatory agency, a discipline commission or a discipline committee. So too should the provision of legal services change. Without any regard to this history, a similar attitude has been taken to legal regulation. The Future is Here: Globalization and the Regulation of the Legal Profession. The public must have confidence that lawyers will treat them well and that the clients will be compensated if the lawyers do not. “The way in which our law societies and bar associations regulate the provision of legal services is the single biggest determinant of the high cost of law, which is the single biggest determinant of the lack of access that the vast majority of people have to legal help,” says Hadfield.
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