Will innovations in legal services still allow the law to perform its main functions?

The ideological conflict troubling the legal profession was clearly apparent when LC.N attended a seminar on innovation and emerging business models in the legal services market, held by the Westminster Legal Policy Forum last week. Much of the open disagreement between bigwig speakers such as the outgoing chair of the Legal Services Board (LSB), David Edmonds, and his equally illustrious colleagues in the audience centred on the dry and technical issue of regulation - but the outcome of this debate will have a big influence on what the legal profession and its role in society will be like in the 21st Century.

The LSB’s Edmonds accused the Law Society and the Bar Council of trying to slow down the innovation and liberalisation that he sees as crucial to the future success and prosperity of legal services in the United Kingdom. "Yes, you have 800 years of history," he told them, "but much of that has been about fighting for your own self-interest." According to Edmonds, the Law Society and Bar Council, which are essentially trade unions that represent solicitors and barristers, respectively, have resisted the independent regulation which he believes has formed the basis for innovative improvements to the delivery of legal services, such as the entrance of alternative business structures (ABS) like The Co-operative Legal Services into the sector. In turn, he argued, ABSs have made the market more competitive and therefore better for the public, with many firms having to respond to the fixed fees charged by ABS organisations with new fixed-fee pricing structures of their own, instead of the older (and usually more expensive) method of charging for their lawyers’ services according to an hourly rate.

Edmonds warned against the dangers of excessive regulation, which he argued would be the by-product of allowing the solicitors' and barristers' professions to go back to regulating themselves instead of being subject to an efficient, cost-cutting organisation such as his "super regulator", the LSB. The chief sin of self-regulation, according to Edmonds, is that it restricts competition by protecting people and the services that they provide from the worst of the free market, the bottom line of which is necessarily concerned with profit, rather than woollier issues such as access to justice and professional ethics which are nevertheless integral to a functioning democratic, capitalist society.

Here then is the debate facing those in charge. The liberalisation and 'commercialisation' of law gives rise to fresh new ideas and competition that can ultimately be seen to benefit the ‘consumer’, who pays less, but is this focus on what one critic at the seminar called "raw commerce" at the cost of other things that the law has long safeguarded in its role as the state machinery that relieves social pressure, rights injustices and imbalances of power, and in doing so keeps the peace? Bringing regulation of the legal sector under the power of a single body could create a dangerous monopoly, argued Felicity Banks, head of business law at the Institute of Charted Accountants of England and Wales. Meanwhile, another speaker from the floor pointed out that the ethical code of, for example, the Solicitors Regulation Authority (SRA), which sets out a solicitor’s duty to the rule of law and to the court, and responsibility to avoid conflicts of interest, is "different" from Edmonds's commercial vision, to say the least. Edmonds hastily retorted that of course ethics should be an important part of any liberalised legal services sector, but his asking whether they should merit "a 500-page rulebook" was a telling indication of his organisation’s decidedly material priorities.

Finally, the chair of the Bar Standards Board, Baroness Ruth Deech, argued that the contradiction between the business imperatives of ABSs such as The Co-op, and the ethical obligations of the legal profession, constitute "an elephant in the room". Deech also questioned how, following the neoliberal commercialisation of the legal profession and the savage cost-saving cuts that this has necessitated to legal aid, will these innovative new business models fill the gaps and serve the vulnerable? While ABSs may lower costs for the majority, they look ill-equipped to provide access to justice to the poorest and most vulnerable in society - a deliberate move not on the part of the ABSs themselves, but of the government, which is intent on creating a cheap-labour-based society without a safety net, which would require public spending, in order to increase the country’s gross domestic product and retain the support of big business.

There is clearly a need, then, to balance the need for innovative advances that improve the delivery of legal services to the public as well as the flexibility with which lawyers can work together, and the more costly ethical obligations without which the legal system - and therefore the government’s cheap-labour-based society - will not be able to function without serious unrest. Right now, there is no plan - convincing or otherwise - to do so; the powers that be are completely disregarding this issue, to the detriment of us all.