Regulation and Access to Justice: a new initiative

Regulation of legal practice is a major issue for access to justice in the United States and other jurisdictions that have followed its model.   In England in Wales, regulation is much looser but, nevertheless, the Solicitors Regulation Authority (SRA) is working on its response to recommendations in a report from researchers at the University of Oxford. In addition to the light it sheds on domestic issues, this report is good enough to merit cross-jurisdictional discussion of the current state of the general legal technology market including that in the sector which it calls, a little ungainly, ‘PeopleLaw’. 

Those from outside the UK may need a reminder of the role of the SRA. It is one of a battery of regulators imposed on the legal profession. It has its own supervisory body in the form of the Legal Services Board (LSB) (Part 4 of the Legal Services Act 2007 contains no less than 43 sections grouped under the heading ‘Regulation of approved regulators’). The structure is designed to meet a somewhat confusing set of statutory objectives which, as the LSB itself has noted ‘can overlap and conflict with each other and [are] not set out in any hierarchy’. These include ‘improving access to justice’ as well as ‘increasing public understanding of citizens legal rights and duties’ mixed up with others like defending an independent legal profession. And all this weight bears down on a very limited number of reserved legal activities – rights of audience, the conduct of litigation, Land Registration, Probate, notarial activities and the administration of oaths. 

You may think that such a regulatory structure is a philosophical monstrosity – a tower of confusing aims built on the constitutional ruins of lawyers’ once-famed independence. You might think also that the Law Society, once an integrated professional association covering representation and regulation of its part of the profession, should not have tamely consented -which it did – to its creation. However, were you to be attracted to such a theoretical position, you have to deal with a disturbing political reality. The SRA and its supervisory structure have destroyed the cosy complacency of the legal profession. Pragmatically, the SRA has been a force for good in relation to access to justice. Its engagement in this field has probably been encouraged by the Conservative Government’s ill-advised abolition of the Legal Services Commission (a direct funder of a broad range of provision like the Legal Services Corporation in the US). The SRA has had to step up to the plate; advance to the frontiers of its mandate into areas once those of the commission; and take up the cudgels for a coherent approach to access to justice.

The SRA has accepted, in principle, the recommendations of Oxford’s report that It give greater clarity in guidance; more help with regulatory compliance and enhance trust and confidence in using legal technology. We will see in due course what that means.

In the meantime, Oxford have given us a good snapshot of the state of legal technology and innovation; unmet legal needs; and a scoping of provision with a view to regulation.

The researchers segment the market by reference to corporate ‘BigLaw’ and ‘the individual and small business client sector’  or ‘PeopleLaw’. This latter category might benefit from division because it sweeps up what providers would generally see as two distinct markets –  Private (paying) Clients and those (on legal aid or not) who cannot afford to pay a commercial rate for services. So, I would have gone for BigLaw, Private Law and PeopleLaw or – more accurately but perhaps confusingly – PoorLaw. In relation to technology, there is an important point here. The digital divide will not apply in the same way to an Afghan refugee on minimal income as it will to a small business. Conflating two very different areas of practice minimises the role of the not for profit sector and the impact of digital exclusion. 

Predictably perhaps, the researchers identify that Covid has rapidly increased the uptake of technology. Most use is currently being made of technology in what US guru Jason Tashea suggested to the World Bank might be called the ‘common technology layer’ of law as a digital platform – technologies which have been developed for general rather than specifically legal us ie videoconferencing with clients, cloud data storage, practice management software, legal research software and e-verification/e-signature programmes. However, the areas where respondents were planning the greatest increase in technology moved into Tashea’s ‘services’ category of tools and applications that ‘allow users and employees of the platform to interact with the services and information the platform provides.’ These were online portals for matter status updates; interactive websites that generate documents; and chatbots/virtual assistants.

Regulatory uncertainty was actually not as important as other factors either for adopters of technology or non-adopters. Adopters were most concerned about access to finance and lack of staff – though 45 per cent mentioned it. Non-adopters couldn’t see the business benefits; did not consider technology a strategic priority or asserted ‘it isn’t needed at my firm’. There didn’t seem worried about the SRA. It is a pity that the researchers did not  include not for profit providers as a separate category. They did note that commercial alternative business structures were more innovative than traditional providers. They seemed mostly to be knocking out bulky probate, wills and conveyancing.

The report is rather depressing about PeopleLaw. It is growing less fast than BIgLaw: ‘the share of PeopleLaw … in the total revenue generated by law firms declined, by an amount estimated to be from around 50% to 20%’. In relation to technology, it is stagnating. Unsurprisingly, ‘PeopleLaw firms in the SRA-regulated sector are less innovative, less likely to adopt legal technology, and face higher financial, staffing, and regulatory uncertainties or barriers to technology adoption than BigLaw firms.’ ‘A small number of legal practices are developing free or low-cost legal services, largely based on a self-service model with “freemium” pricing. We also observed law firms using online portals to manage client matters to reduce costs … arguably one of the more significant drivers of legal practice innovation … appears to be the government’s digitisation agenda – notably the whiplash claims portal launched in May 2021.’ So, it may be that Personal Injury practitioners are leading the way or, indeed, dominating the field of innovative technology use.

A major finding of the report – and presumably the SRA’s follow up work – is the benefit of fostering user trust in technology tools. The report does not  profess to provider a user’s view of technology. Its viewpoints are limited to that of the regulator (fair enough – its funder) and the regulated rather than the ultimate end user at the bottom end of the PeopleLaw ladder. So, it does not consider ways in which trust in sources of digital information might be increased (eg by some sort of accrediting process for websites – which could be voluntary and represents a forgotten provision encouraged by the Legal Services Commission). Nor – and this really is an omission – does it (as stated above) look at digital exclusion and ways around it for the poorest clients. 

So, if you are interested in developments in the private legal sector, this is a report worth looking at. Its identification of trends is likely to hold good for other similar jurisdictions. 

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