The specialisation of lawyers in the U.K. Julian Lonbay Birmingham Law School, England 15 April 2016(c) Julian Lonbay1

Looking at the UK 15 April 2016(c) Julian Lonbay Solicitors and barristers 2

Structure for the delivery of legal services Reserved matters A very limited range of legal activities are “reserved” The Legal Services Act limits the carrying on of six reserved legal activities: exercise of right of audience; conduct of litigation; reserved instrument activities; probate activities; notarial activities; administration of oaths. These activities are generally reserved to nominate professions, via their professional title But for some legal activities (e.g. Immigration advice, Insolvency work) statute (primary law in the UK) regulates who can undertake it. Unreserved matters Everything else; e.g. the giving of legal advice is not reserved, anyone can do it. 15 April 2016(c) Julian Lonbay3

Legal Services Regulation The Regulator (of regulators) supremo – The Legal Service Board (LSB) follows an outcomes focused approach to regulation– there should not be regulation of an activity or person where there is no risk of harm ators/ ators/ Barrister, conveyancer, costs lawyer, Chartered legal executive, notary, patent attorney, probate practitioner, solicitor, trade mark attorney. 15 April 2016(c) Julian Lonbay4

Rationales for controlling access to legal services market To protect clients in an asymmetric market To protect the administration of justice and rule of law 15 April 2016(c) Julian Lonbay5

Rationales for controlling access to specialised sectors of the legal services market To ensure quality (e.g. Legal Aid Agency) To help clients choose appropriate lawyers To provide information to others To help law firm marketing To help individual lawyers BUT Does it ensure quality? Or does it undermine the general guarantee of quality represented by the main professional title e.g. solicitor 15 April 2016(c) Julian Lonbay6

Approach in England and Wales Solicitors: The SRA and Law Society generally do not favour reservation of activities to specialist lawyers within the solicitors profession Specialisation, for the most part is: Voluntary Without too high a competence threshold – i.e. accessible for most who want to do it Mostly a matter for the individual rather than the law firm 15 April 2016(c) Julian Lonbay7

Specialisation as an individual voluntary matter Law Society runs accreditation schemes – 12 of them Entry requirements Re-accreditation requirements The Law Society Quality Marks Access to additional branding and logos - e.g. Linked to Find a Lawyer 15 April 2016(c) Julian Lonbay8

The recognised specialties 1.Children's law 2.Civil and commercial mediation 3.Clinical negligence 4.Criminal litigation 5.Family Law 6.Family Law advanced 7.Family mediation 8.Immigration and asylum 9.Immigration Law advanced 10.Mental health 11.Personal injury 12.Planning law 15 April 2016(c) Julian Lonbay9

Law Society Accreditation schemes Entry requirements vary between the schemes Typically Experience (3-5 years) or sometimes chargeable hours of working in the area or chargeable hours of litigation Fit and proper No complaints Check with the Legal Ombudsman Referees Portfolio of work submitted / or case reports Core areas of knowledge required Interviews Training can be required E.g. Family law – 6 hours of relevant courses Duration varies – for family law it is 5 years, then you must reapply For small and mid-sized firms - it is a sort of validation of expertise 15 April 2016(c) Julian Lonbay 10

Find a Solicitor 15 April 2016(c) Julian Lonbay11

Pro-search on Find a Solicitor 15 April 2016(c) Julian Lonbay12

Specialisation as a law firm matter E.g. Lexcel quality mark For excellence in legal practice management and client care Lexcel sets the required Standard in seven different areas: 1.structure and strategy; 2.financial management; 3.information management; 4.people management; 5.risk management; 6.client care; 7.file and case management. 15 April 2016(c) Julian Lonbay13

Specialisation as a law firm matter Conveyancing quality scheme For solicitors that undertake residential conveyancing Annual re-accreditation Wills and Inheritance Quality Scheme for wills and estate administration advice Annual re-accreditation 15 April 2016(c) Julian Lonbay14

Specialisation as a necessary matter Additional accreditation is sometimes required:- by law, e.g. Immigration Immigration and Asylum Act 1999, section 84 – “qualified persons” Insolvency practice The SRA was a recognised professional body (RPB) that regulated and authorised solicitors to practice insolvency, but withdrew in 2016 From October 2016, the Insolvency Service will act as oversight regulator for the 5 remaining RPBs: Association of Chartered Certified Accountants (ACCA) Chartered Accountants Regulatory Board (CARB) Insolvency Practitioners Association (IPA) Institute of Chartered Accountants in England & Wales (ICAEW) Institute of Chartered Accountants of Scotland (ICAS) 15 April 2016(c) Julian Lonbay15

Specialisation required By the legal services regulator(s) E.g. Criminal advocacy (QASA) The scheme has not yet commenced as it was challenged. The Supreme Court accepted as a legitimate regulatory requirement so it will come into force in due course.Supreme Court The Bar Standards Board (BSB), Solicitors Regulatory Authority (SRA) and Institute of Legal Executives (ILEX) all joined up to create this standard 15 April 2016(c) Julian Lonbay16

QASA – Quality Assurance Scheme for Advocates Lord Carter’s Report 2006 showed that market forces alone can no longer be relied upon to eliminate under-performing advocates. Great risk to individuals and public confidence in the justice system Criminal advocacy attracts a mix of solicitors, barristers and legal executives who will have taken different routes for training and will be subject to different regulatory requirements. It frequently involves vulnerable individuals who may be unable to exercise informed choice as to who represents them. Changes to legal aid funding and associated financial pressures are putting pressure on quality. The judiciary have expressed their concern about underperformance 15 April 2016(c) Julian Lonbay17

Specialisation required “Higher Rights of Audience” (advocacy rights) for solicitors The Solicitor advocate 15 April 2016(c) Julian Lonbay18

Specialisation required by the consumers of legal services E.g. Legal Services Commission (LSC) – Legal Aid Agency (LAA) If you want to undertake certain legal aid work then additional accreditation is required 15 April 2016(c) Julian Lonbay19

Specialisation required Sometimes law firm accreditation required Legal Aid Agency Lexcel - excellence in legal practice management and client care (Law Society quality mark) SQM Specialist Quality Mark (LAA quality mark) MQM Family Mediation Quality Mark (LAA quality mark) 15 April 2016(c) Julian Lonbay20

Generalist v specialist A generalist qualification gains one access to a main legal profession, the professional titles are protected and have a strong brand value De facto specialisation occurs But with a core training the solicitor is not in a silo Can you see out of the silo? Do you get blinkered vision? Not good for the client Team work overcomes the silo issue in larger law firms 15 April 2016(c) Julian Lonbay21

Scotland The Law society of Scotland recognises 28 specialisms specialists/becoming-a-specialist/ specialists/becoming-a-specialist/ New specialisms can be easily proposed; specialists/proposing-new-specialisms/ specialists/proposing-new-specialisms/ The criteria are clear; law-criteria.pdfhttp:// law-criteria.pdf E.g. for environmental law April 2016(c) Julian Lonbay22

Northern Ireland Children Order Panel 15 April 2016(c) Julian Lonbay23