Please enable JavaScript.
Coggle requires JavaScript to display documents.
PROFESSIONAL REGULATION AND ETHICS (ARGUEMENTS FOR (Legal profession must…
PROFESSIONAL REGULATION AND ETHICS
HOW ARE SOLICITORS CONTROLLED?
Firms
complaint procedure
Clients informed of procedures in retainer letter
SRA Code of Conduct 2011:
O1.9: ‘clients are informed in writing at the outset of their matter of their right to complain and how complaints can be made’
O1.10: ‘clients are informed in writing, both at the time of engagement and at the conclusion of your complaints procedure, of their right to complain to the Legal Ombudsman, the time frame for doing so and full details of how to contact the Legal Ombudsman’
O1.11: ‘clients’ complaints are dealt with promptly, fairly, openly and effectively’
Solicitors Regulation Authority
Receives complaints and acts on own initiative
set standards and protect consumers and public interest and consult with public to ensure good service.
issue practising certification which is renewed annually and consider any misconduct and lack of competence
Solicitors Disciplinary Tribunal
Powers (s47 Solicitors Act 1974):
Striking off the Roll
Suspension indefinitely or for a specified period
Fine(s), without limit and forfeit to Her Majesty
Exclusion from legal aid work
Determination of a solicitor’s indefinite period of suspension from practice
Restoration to the Roll of the name of a former solicitor who was previously struck off
Direction prohibiting restoration to Roll except by order of Tribunal
Payment by any party of costs or a contribution towards costs of such amount as the Tribunal may consider reasonable
Re A Solicitor [1972]: mere negligence is not enough; conduct must be ‘such as to be regarded as deplorable by his fellows in the profession’ or ‘a serious and reprehensible departure from the proper standards of a solicitor as a professional’.
HOW ARE BARRISTERS CONTROLLED?
Chambers
Complaints procedure
BSB 2015: oC19: ‘clients understand how to bring a complaint and complaints are dealt with promptly, fairly, openly and effectively
standard role to set standards of conduct and monitor performance and handle any complaints and take disciplinary action.
Complaints must be made within 12 months of the action complained of (discretionary extension)
Bar Disciplinary Tribunal
responsible for arranging hearings and are
Independent of Bar Council
3 or 5 people, barrister, judge and lay person.
Evidence presented and witnesses may be called
Sanctions:
-Take no further action (impose no sanction);
-Give advice;
-Warn about behaviour;
-Complete further professional development training;
-Fine of up to £50,000 (£15,000 for conduct pre 6 January 2014)
-Ban from public access work
-Suspension for a period up to 12 months (3 months for conduct pre 6 January 2014)
Determination by Consent
Voluntary
Express written consent of registrant
decision is made by BSB Professional conduct committee
Registrant may accept or reject the findings and sentence
Avoids full hearing quicker process
ARGUEMENTS FOR
Legal profession must be independent
No need to work with third parties to amend regulations
Enforcement and monitoring easier
Amendments can be made quickly in response to changes to professional practice
Profession should be governed by those with technical knowledge and skill
Panel of Tribunals contain a lay person no different to non-legal regulatory tribunals in composition
If regulator became a government body, how would it view lawyers who act against it?
ARGUEMENTS AGAINST
Incentive for regulator to entrench the profession’s monopoly
Problem of perception
Investigations for non-legal regulators carried out by lawyers degree of separation
Bias
CHANGES BROUGHT BY LEGAL SERVICES ACT 2007
Separation of regulatory and representative functions of professional bodies
E.G
Bar Council HAS Bar Standards Board
Law Society HAS Solicitors Regulation Authority
CREATED
Legal Services Board
IN 2007
-Oversight of the regulation of the legal profession
-Acts as a compromise: profession allowed to self-regulate but overseen by an independent body
-Does not directly deal with complaints
-Ensures adequate regulations in place
s3(2) LSA 2007:
‘The Board must, so far as is reasonably practicable, act in a way—
(a) which is compatible with the regulatory objectives, and
(b) which the Board considers most appropriate for the purpose of meeting those objectives’.
Office for
Legal Complaints
created by Part 6 of LSA
Deal with all consumer complaints against members of ‘approved regulators’, including the Law Society and Bar Council
Legal Ombudsman
Created by legal complaints office
Free complaints resolution service for members of public, very small businesses, charities and trusts
Deal with complaints relating to solicitors and barristers and those working for them
Wide variety of powers, including directing respondent to:
Apologise
Pay compensation of a specified amount for loss suffered
Pay interest on that compensation from a specified time
Pay compensation of a specified amount for inconvenience/distress caused
Ensure (and pay for) putting right any specified error, omission or other deficiency
Take (and pay for) any specified action in the interests of the complainant
Pay a specified amount for costs the complainant incurred in pursuing the complaint
Limit fees payable to a specified amount
more focused on poor service rather than misconduct
ROLE OF REGULATION
Herring: ‘regulation of legal services is central to a well-functioning justice system'
Essential to the protection of both citizens and commerce against any arbitrary use of state authority and unlawful acts of both organisations and individuals’
DAVID CLEMENT
Access to Justice
Encouragement of a confident, strong, and effective legal profession
SELF REGULATION
Now self regulation has a bad name. Self regulation, if left unchecked, can become self interest. That is a risk that must be guarded against. We need appropriate checks and balances in place to ensure that self regulation does what is necessary to reinforce independence, that is, organise the profession to ensure that its members genuinely support the rule of law and the proper administration of justice.’
BARONESS DEECH
profession can be governed by principles and rules made by people who have technical skill and knowledge of how the profession works in practice DECKER AND YARROW
Enforcement and monitoring is easier if undertaken by those who work in the same areas as those being assessed.
Changes can be made more easily because there is no need to work with third parties if amendments to regulations are required.
ALTERNATIVE MODELS MUST BE CONSIDERED
Control by public authority
Individual Moral Autonomy
Herring: ‘we have grown accustomed to the idea of professional bodies publishing ethical guidelines but there are alternatives
Legislation