In
May 2018 the Board of the SRA approved the new Standards & Regulations that
are designed to replace the 2011 handbook. They were then placed before the
Legal Services Board for approval. Despite the resistance of the Law Society, who
have opposed so many other progressive reforms with similar arguments, the new
Standards & Regulations were approved by the LSB on the 6 November 2018.
This
was the culmination of a reform programme that started with the publication of
a Policy Statement in 2014
that set out the way that the SRA would regulate. At that stage it was
envisaged (as the Policy Statement concludes) that the new rules would be in
place by the end of 2017. The sheer scale of consultation and engagement with
the profession and public alike meant that this ambitious timescale has not
been met. But now it is time for the reforms to be implemented: solicitors and
firms are ready to go.
The
SRA has hinted publicly at implementation in April 2019, but we would all know
by now if that were happening, so a further delay to the summer seems
inevitable. The reasons for this are for the SRA rather than an independent
consultant, but we might assume that they want to give themselves and law firms
time to prepare.
But
delay far beyond April impacts on consumers as much as it does solicitors, law
firms and the SRA itself. If one of the compelling reasons for change is to widen
choice and improve access to justice, then delay must be prejudicial. Of course modernisation is difficult and
operational change a challenge but there are options open to the SRA to
mitigate delay and set the legal market free now.
The
SRA already runs its innovation space SRA innovate
.
That has allowed firms to experiment, move forward and embrace change though
the use of waivers. It did not, as some have argued, introduce the reforms
before they were approved, as each waiver has to be approved within the rules
of the existing handbook. But solicitors have
obtained permission to offer legal services to the public from unregulated
businesses. That, and becoming a freelance solicitor, are the reforms that solicitors
and legal business tell me they want to take advantage of when the new
Standards & Regulations come into force.
The
availability of waivers does mean that solicitors and firms do not need to wait
for formal implementation. But what unnecessary bureaucracy to require an
application to waive rules that the SRA has decided and the LSB endorsed as out
of date and inconsistent with best regulatory practice.
So,
the SRA should implement the reforms urgently and provide urgent certainty as
to when that will be. In the meantime, it should use its imagination to allow
solicitors and firms that are ready to move now to get on with it. There is
precedent for this. In 2018, after the SRA Board had approved the new Standards
& Regulations but before the LSB had endorsed them, the SRA made a statement
on its approach to pro bono and enforcement.
In short, it gave comfort to in-house lawyers that if they offered pro
bono services through a not for profit body they would not be considered to be
in breach of the current rules if certain conditions were satisfied. In effect
it gave a general waiver.
It
would be possible for the SRA to allow solicitors to work as freelancers or to
offer services to the public through non-regulated firms via a similar
mechanism now without waiting for the new Standards & Regulations to come
into force. That would be consistent with the SRA’s regulatory objectives and
would satisfy best regulatory practice. Undoubtedly that would be good for the
public, good for solicitors and legal business and therefore good for the SRA.
This blog first appeared on
Legal Futures
