CLSB head: Regulators need to help lawyers stand up to improper pressures

David Heath also describes access to justice as a “national disgrace”

Legal regulators should make their support for the rule of law and professional ethics more explicit to help lawyers stand up to demands to act improperly, the chair of the Costs Lawyer Standards Board (CLSB) said last week.

David Heath also described access to justice in England and Wales as a “national disgrace”.

He was speaking on a panel of legal regulators at the Legal Services Board’s (LSB) annual Reshaping Legal Services conference in London.

Earlier in the day, delegates had heard former sub-postmaster Lee Castleton, whose story was one of those featured in ITV’s drama, Mr Bates vs The Post Office, tell the lawyers in the audience that “you are all regulators”.

He explained: “Every one of you can call anyone out. If somebody in your practice or coworker or whomever is doing something that they shouldn’t be doing, call them out. Tell them. You’re all able to do that.

“It shouldn’t be that you need a regulator to tell you what is right and what isn’t right. You are all human beings.”

Mr Heath described this as “absolutely right”. He continued: “But there was also a question [from the audience asking] what the power and the spending power of a particular client has to do with the degree to which sometimes rules are bent. And I thought that that was extremely important as well.

“If we can increase both the rigour and the profile of our support as regulators for the rule of law, for professional ethics, it does two things. First of all, it perhaps moves people away from ghettoising ethics as something that compliance does down in the corridor and therefore we don’t have to worry about it.

“Secondly, it also provides a defence to the junior lawyer who has to stand up to a senior partner, to an in-house lawyer having to speak to someone who’s got quite a different mindset, to the people in multi-disciplinary practices where the owner is from a different discipline, perhaps even within government, so that lawyers are empowered to just say no when it really won’t do.”

On access to justice, he said it was now “a national disgrace – if it were a health authority or a school, it would be in special measures”.

While regulators were not representative bodies and should not act as spokespeople for lawyers, “it’s right that we speak truth to power and we use what the information we have to [describe] the situation as it is”.

He suggested that the LSB approach the government after the election, and perhaps the chair of the justice select committee too, to suggest that it submit an annual “state of the legal nation” overview for debate in Parliament. This would say “what is not happening as much as what is”.

The idea drew strong backing from fellow panelist Lord Chris Smith, the former Labour cabinet minister who is chair of the Intellectual Property Regulation Board. He said. “It has the added advantage that it is something that can be done without demanding huge resources but it will shine a spotlight on things that actually do need resources.”

Mr Heath highlighted too the value of collaboration and cooperation between the legal regulators and beyond. “In a world where professions are increasingly porous, where you have multi-disciplinary companies of various kinds, let us explore what other people are doing, not just in other professions but other sectors and other jurisdictions, because we have everything to gain.”

Asked from the floor about legal regulators co-working with other regulators, Mr Heath predicted some convergence. “It’s absolute nonsense for there to be totally different provisions that apply to different professional areas often working in the same office with the same basic principles of what is proper behaviour in respect of the consumer. The more we can get convergence, the more we can be working from the same basic set of rules, the more sense it makes…

“In my more apocalyptic moments, I think we’re coming to the end of the professional era in the sense of separate professions.

“We’re talking about people who are qualified and are willing to enter into a social contract with the public in terms of their codes of behaviour which will allow them to move much more easily between different facets of multi-disciplinary teams.”

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13 Mar 2024

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