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By David Smith
At a recent conference I attended there was a discussion about regulation. The outgoing chair of the Legal Services Board (LSB), David Edmonds, was critical of the various manuals and rules produced by the primary legal regulators as being too lengthy and prescriptive. They replied that some of this was the fault of the LSB itself and its excessive requirements.
Leaving aside the ongoing dispute between the LSB and primary regulators I tend to agree with the views expressed by David Edmonds. The SRA Code of Conduct is undoubtedly shorter than some of its predecessors but it remains a convoluted and substantial tome. It also does not really fulfil the objective of outcomes-focused regulation (OFR). The point of OFR was to give more general set of guidance and allow individual law firms to develop the details themselves. This has not happened. The ten principles give a good general starting point but after that things start to go wrong. The outcomes are a curious mix of the general and the highly specific. And then we have the indicative behaviours – the rules that are not quite rules – which give fairly specific, and sometimes controversial, views on how practices are to be run. The Solicitors Accounts Rules are also totally non-compliant with the OFR ethos. They are rules, plain and simple, with a set or principles tacked on the front. This has been recognised by the SRA who are now embarking on a project to rewrite them.
I have heard lawyers complaining about OFR as not “telling them how to run a practice”. I think this complaint is misguided. David Edmonds stated that rules should not be required to tell lawyers how to practice ethically. I agree with him. Good lawyers should be able to understand the core ethical principles and recognise those things which are outside them. You would not expect me to embark on a detailed explanation of client confidentiality and most readers of this blog would understand that implicitly.
It is not all doom and gloom however. The SRA has embarked on red tape initiatives and is looking to cut back on the length of the code. Much more is needed however. A far more focused review of each chapter of the code in turn is required with the aim being to cut out the prescriptive rules and behaviours and reduce each of them to a set of core principles with guidance notes of how that might look. A similar approach must be taken with enforcement, recognising the difference between those who have ignored the principles and those who have misunderstood them or mistakenly strayed over the line.
This will presumably mean several more iterations of the Code of Conduct. We are currently on version 8 and I expect I will see version 15 and more before long. Large numbers of small incremental changes are not helpful. They often pass busy lawyers by unnoticed and increase the cost of regulation with constant small changes to care letters and terms of business. The SRA should make clear that it will only make changes once or twice a year on set dates and they should be bolder on those dates, bringing in the reforms they have merely hinted at. OFR can work and the profession truly needs the scope for new business models it can offer. However, the SRA must embrace properly what they started and create a rule book that focuses on objectives which protect clients and not rules which stifle creativity.
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