The Law Society and the Bar Council

Well, of course the answer is thankfully a relatively simple one. The vast majority of solicitors and barristers, whom, we must remember are, in principle, still immune from punishment for professional negligence, mercifully do not act outside their moral and ethical principles on a regular basis. The examples I have highlighted represent less than one percent of one percent of those called to the Bar, and cases like these are happily quite rare.

However, this is notwithstanding that such incidents are on the rise – and quite dramatically so – simple mathematics demonstrates that for every ten solicitors there is one practising barrister; in 2006, one solicitor in two thousand has already been struck-off (0. 05%), whereas one barrister in eleven hundred has been disbarred (0. 085%) – a significantly higher ratio. Nonetheless, the basic framework of ethical understanding which we all adopt (or at least try to) in our daily lives, is undoubtedly raised to a higher plane for those who are members of The Law Society and called to the Bar.

It is for that reason that when we need them we still put our trust in solicitors and barristers, for they represent not only a channel through which the law may be understood and utilised, but they also exemplify the ethical and moral high-ground which we might all one day strive to attain. Conclusion At the present time, it is rather hard to draw any firm conclusions as to where all this interest in the future of the self-regulation of solicitors and barristers is heading – not least of which because so little of the suggested amendments to the current regulations have yet to become law.

Literally millions of words have been penned in an attempt to clarify not only the current position with regard to the Law Society and the Bar Council (including both bodies having re-written [but not yet implementing] their own codes of conduct in the last three years54), but that which the Government would like to adopt should it be necessary to embody regulations of this nature within statute, at some point in the future. In October 2005, the latest in a long line of attempts55 at amending the way that the Government wants the regulation and delivery of legal services was published.

In it, Lord Falconer, Secretary of State for Constitutional Affairs & Lord Chancellor, stated: "Consumers need, and deserve, legal services that are efficient, effective, and economic. They want to have choice, and they want to have confidence in a transparent and accountable industry. Legal services are crucial to people's ability to access justice. They must therefore be regulated and made available in such a way as to meet the needs of the public – individuals, families and businesses. The professional competence of lawyers is not in doubt.

The calibre of many of our legal professionals is among the best in the world. But despite this, too many consumers are finding that they are not receiving a good or a fair deal"56. The Lord Chancellor could be forgiven for somewhat glossing over the undoubted abilities of the vast majority of legal professionals in the United Kingdom, and praising them in the way that he does. Yet, he touches on the crux of the problem when he says that too many consumers are finding that they are not receiving a fair deal.

It is these very cases, which, I agree, are isolated, that still tend to spoil the barrel of apples for the rest of the legal profession. I would argue that if we are ever to have a completely transparent, efficient and economic legal services system – one which could be purged as much as possible of the minority rogue element that has crept into it in recent years – then it needs to be governed through a recognised, accepted but wholly independent body. This body would have to be engendered with enough power to investigate, punish and where applicable review procedure in order to maintain a completely impartial approach.

At the same time however, power would need to be limited so that the new body could not simply develop into a metamorphosis of the old self-regulating bodies, and therefore become susceptible to inside (and indeed, outside) influence. Such an idea is already engrained as part of a much wider series of proposals which were outlined in the 'Review of the Regulatory Framework for Legal Services in England and Wales', Final Report from Sir David Clementi, in December 2004 (usually referred to simply as 'The Clementi Report').

In it, Sir David remarks: "A Recognised Body (RB) would apply to a Legal Services Board (LSB) for authorisation to regulate Legal Disciplinary Practices (LDP) in specific legal service areas. The LDP would need to demonstrate to the LSB that it has: (a) competence in the areas of LDP work to be regulated; and (b) satisfactory governance and administrative arrangements.

"Alternatively, a prospective LDP would apply for a licence to be regulated by an RB who in turn would need to be satisfied that (a) the specified legal service area proposed by the applicant falls within the terms of the authorisation granted by the LSB to the RB; and (b) that the applicant meets the relevant safeguard tests"57. These simple alternatives could provide the framework upon which the next generation of legal services are based, and there is every possibility that this Government will insist that they be implemented before its current term of office expires in 2009/2010.

However, regardless of the merits of the various ideas and proposals – and they are legion – all of this still needs to be administered by people in authority whose ethical ideology must be, as a matter of course, beyond question. Therefore, the question for the future must surely be: Where will the persons whose ethics are beyond question come from? If we couldn't find them already behind the hallowed doors of The Law Society and the Bar Council, from whence will them come? (5,270 words)

References:

Roxburgh, R. F.: 'Rondel v Worsley: Immunity from the Bar', Law Quarterly Review, Vol. 84, p513 (1968) Verkaik, Robert (2000) 'Barrister is warned over advice to father' The Independent, Wednesday, 26 April 2000 p4 Verkaik, Robert (2000) 'Barrister disbarred for eavesdropping on solicitor' The Independent, Friday, 3 November 2000 p9 University of Bristol, Department of Philosophy 'Ethics – (c) Kantianism' [Online] Available at http://www. bris. ac. uk/philosophy/current/undergrad/studyguide/ethics. html (Accessed 25 October 2006)