July 4, 2008
Musings from Edinburgh
I am sitting at a computer in the University of Edinburgh halls of residence at the moment. This week has been a busy one lecturing to Virginia attorneys on the legal system of England and Wales and attending lectures by Scottish and English legal experts. My "undercover" legal persona is as a Solicitor for England and Wales and professor for elective courses in Comparative Law and European Union.
As I have been explaining various legislative and constitutional reforms that have occurred in the last 18 years in England and Wales, I have been struck by how important it is for our students to have a global perspective. So often, they take the view that the American system is the only legitimate system and close their minds to other ways of doing legal business. We can always learn from others - whether we learn about our own strengths or about our own weaknesses or about the treands abroad.
The U.K. is about the size of Oregon. So, some of the aspects of the legal system would be totally impossible for our country. Some of the aspects have been reformed so that they are more modern now than the traditions of 900 years - even the traditionalists in the U.K. would concede that some of the reforms have worked well. An example of where we could probably learn a great deal is their independent judicial appointment system. The new systemhas tried to remove even further the political impact of the Government of the Day. Additional reforms will continue this change if the Constitutional Renewal Bill 2008 becomes law. We would want more legal profession input into the selection process, but it avoids our constant political blocking of judicial appointments on state and federal levels.
However, the reforms to the legal profession itself have been downright frightening. Why should we care? Because what has happened in the U.K. could happen in part to us. So as not to bore you, I shall just list some of the items that have changed or are under discussion:
- Self-regulation is under attack in the U.K. for all professions. The Law Society (solicitors) and Bar Council (barristers) no longer have regulatory powers over the lawyers. Independent regulatory agencies under their umbrellas now handle the complaints systems and discipline. These regulatory bodies also handle education and training of the split legal profession.
- A governmental Ombudsman audits the regulatory complaint system each year and fines the Law Society and Bar Council hundreds of thousands of pounds if the complaint system timeliness targets are not met - even if most are and improvements have been made.
- Government is currently discussing inroads on lawyer-client confidentiality.
- The Legal Services Commission required law firms and chambers who wanted to provide legal aid in civil matters to sign contracts that the LSC could alter at any time. The Law Society had to take the LSC to court to get the provision stopped. (Legal Aid is widely received for civil and criminal work and is the bread and butter of many firms/chambers.)
- The Legal Services Commission froze all criminal legal fees for legal aid at minimal levels so that complex cases would not be paid what they were worth. A threatened strike by the legal professionals and pressure from the Law Society and Bar Council have caused a compromise. However, fewer firms and chambers now do criminal legal aid. (There is currently no public defender system though some pilots are working.)
- The same governmental LSC has an Ombudsman who is currently proposing a naming and shaming stage in the disciplinary process (during the complaint rather than only after discipline).
- The new Legal Services Board that will begin next year under the Legal Services Act 2007 (that will have oversight of all legal services) will be made up of a majority of lay members and will have a lay chair. It will be able to interfere not only in discipline matters but also alternative business structures and many other areas.
- Consumerism and market competition rule in the U.K. system. "Value for money" drives government reforms and professionalism is a dirty word.
- Alternative business structures (ABS) under the LSA 2007 will mean that non-legal partners will be allowed ownership of legal firms/chambers up to 25%. However, the details on how to prevent interference of the partners in legal work have not been worked out - nothing more than a gentleman's agreement seems likely since regulation of these new partners is hard to work out.
- ABS means that other entities will be able to offer legal services. To put it in U.S. terms, think Walmart-law or AAA-law.
In the United States, the separate state system of bar associations would make these changes harder to implement. However, lawyers are unpopular in the U.S. as well as in the U.K. Consumerism is on the rise. And, some states are already having some similar discussions on some of these matters. (Amy Jarmon)
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