Legal services regulation reform: consultation analysis

Section 3(C) Titles

Introduction

The consultation document outlined the confusion which the general public/ consumers have around the titles of 'solicitor' and 'lawyer'. It also highlighted that, while 'solicitor' was a protected title, meaning it is a criminal offence for anyone not meeting the criteria to use it, there is no equivalent protection for advocates. While the Roberton Review found there was no requirement to provide such protection for advocates, the Faculty of Advocates have argued for such protection.

As such, the consultation sought feedback on the need to provide protection for various titles and the power which any regulator should have over deciding which titles should be protected.

Question 38

Q38. To what extent do you agree or disagree that there should be a change such that the title 'lawyer' would be given the same protections around it as the title 'solicitor'?

Base: 94

Of those who rated their level of agreement/disagreement, just under three quarters (72%, n=68) agreed that there should be a change to allow the title 'lawyer' to be given the same protection as 'solicitor'. According to the Law Society of Scotland, 86% of the public in a recent poll "believe that there should be restrictions on who can call themselves, or advertise as, a lawyer". For the protection of the consumer, who may not understand the distinction between 'lawyer' and 'solicitor', it was generally felt that lawyers should be legally regulated through a protected title. It was also felt this would aide clarity and transparency:

"We are persuaded that the term 'lawyer' should also be protected on the basis that many consumers do not appreciate that this is not a protected term and therefore that they may not be dealing with a qualified solicitor or a qualified advocate. The possible distinction between those terms and the qualifications of those using them should be highlighted more prominently." (Organisation, Legal Services Provider)

"Although we recognise that some lawyers may have qualifications, knowledge, and adequate legal services, many may not and, crucially, they may not be regulated or be subject to any kind of code of practice. They are therefore unlikely to offer consumer protections, such as professional indemnity insurance cover or any complaint or redress process, potentially leaving the consumer exposed should something go wrong. Nor will the consumer benefit from the protection offered by the Client Protection Fund." (Organisation, Public Body, Law Society of Scotland)

Other reasons for agreeing with this proposal were:

• To prevent a so-called 'lawyer' from providing services that only a 'solicitor' is qualified to provide;
• That the public needed to be able to make informed choices, not least in using currently unregulated services; and
• That the Chartered Institute of Legal Executives (CILEX) lawyer approach had recently and successfully been adopted in England and Wales.

For those who disagreed with offering lawyers similar (but not the same) protection as solicitors, it suggested that:

• It would be difficult to differentiate academic lawyers and non-practising lawyers from practising lawyers;
• The current system was not causing problems;
• Defining or regulating lawyers may stifle diversity in practice; and
• Legally qualified but unregistered people should be able to call themselves lawyers:

"[T]here is an issue with limiting the use of the title to those who are register with one of the three bodies (Law Society of Scotland, Faculty of Advocates, Association of Commercial Attorneys). The reason being that there are many people who are legally qualified who are not able to register with these associations but have a legitimate reason to call themselves a lawyer, e.g. a legal scholar or a legal graduate working in-house for an organisation." (Individual)

Five focus groups discussed this issue, with attendees divided regarding whether they thought the title 'lawyer' should be protected or not. Some felt this should be protected in order to provide consumers with confidence and protection around the qualifications and authority of the lawyer, while others did not think the term needed to be protected, but rather that the public needed to be better educated about the differences between solicitors and lawyers.

Question 39

Q39. To what extent do you agree or disagree that the title 'advocate' should have the same protections around it as the title 'solicitor'?

Base: 89

Over two thirds (70%, n=62) of respondents agreed that the title 'advocate' should have the same protections as 'solicitor'.

Within their qualitative responses, many indicated that their reasons for supporting or not supporting this proposal were the same as provided at Q38 above.

Of those who did provide reasons, many respondents suggested that if 'lawyer' and 'solicitor' were protected titles, then 'advocate' should also be, although clarification was needed as to whether 'advocate' was intended to refer only to members of the Faculty of Advocates or also to membership of the Law Society of Scotland (i.e. a solicitor advocate). It was also suggested that providing such protection would again ensure clarity and consumer protection around the service/product provided.

While the Faculty of Advocates agreed with the need for protection, they, along with other respondents, pointed out that the term 'advocate' had many usages, not just legal. For example, there were recognised advocate roles in the social work, domestic violence and mental health fields, advocates in the third sector, as well as the more general use of the term 'advocate' in the English language (e.g. to advocate/support an issue). Therefore, providing protections for this title may cause confusion or unintended consequences, and so alternatives may be required:

"Subject to exceptions for usage in the everyday, non-legal sense where there is no implication that legal qualification is being claimed. E.g. an activist may be described as "an advocate for change" and this should not be inadvertently criminalised." (Individual)

"An alternative method of achieving the goal of avoiding any confusion or misrepresentation to the public, would be to make it an offence for a person to hold him/herself out as a practicing Member of Faculty where that is not in fact the case." (Organisation, Professional Body, Faculty of Advocates)

For those who disagreed, again the issue of the more general or wider use of the term/title was cited, with respondents suggesting that this would make it difficult and/or inappropriate to protect in such a way. It was felt that other sectors should not be restricted or penalised as a result of attempts to create protections within the legal services sector:

"The term advocate is used increasingly in the third sector by organisations representing individuals in both non judicial settings and quasi-judicial settings. Any protection afforded should not penalise those individuals or prevent them from describing themselves as advocates." (Individual)

One pointed out that advocates are only accessed via a solicitor and would not be directly approached by the public in any case.

Question 40

Q40. To what extent do you agree or disagree that the legislation should allow for the protection of other titles in relation to legal services as appropriate?

Base: 88

Of those who provided a rating, just under three quarters (72%, n=63) agreed that the legislation should allow for the protection of other titles in relation to legal services as appropriate.

Most respondents generally agreed that protection should be afforded to legal service providers with other titles (such as paralegals and legal executives), not least to protect the public from potential malpractice or from being misled:

"Anyone professing a title should have some degree of qualification and regulation to protect the consumer." (Individual)

However, a few respondents stressed that the regulation and protection of titles needed to be responsive to the market, and should not act as a restriction, either on entry to the market, competition, or for access to justice:

"…the protection of titles will require to be a responsive piece of the legislation; changes will be required to match the way the market changes in this regard." (Organisation, Legal Services Provider)

"We believe that this would assist in protecting the public and avoiding confusion with unregulated providers of legal services. However, care should be taken to ensure that it does not restrict access to justice and fair competition." (Organisation, Professional Body for the Legal Profession)

The Law Society of Scotland, whose response was endorsed by several others, argued that any changes to protected titles should be 'enabling', and not 'prescriptive':

"This would allow a proportionate and reactive approach to be taken to the protection of other titles being used in the provision of legal services directly to consumers and would address the risk of non-regulated providers using increasingly imaginative professional titles to circumvent any legislative prohibitions in place and resultant consumer protections." (Organisation, Professional Body, Law Society of Scotland)

Of those who disagreed, it was typically argued that there were no other titles which required such protection, and that there was no problem at present that needed fixing. It was also suggested that extending the reach too far, in terms of legal definitions, was not helpful, could become confusing, and would not bring any particular benefits for consumers.

Question 41

Q41. To what extent do you agree or disagree that it should be for the regulator(s) to propose to the Scottish Government which titles to protect?

Base: 93

Around three quarters (73%, n=68) of respondents agreed that it should be for the regulator(s) to propose to the Scottish Government which titles to protect in future.

Those who agreed generally felt that the regulator would be best placed to identify issues and make decisions in this respect:

"The regulator is best placed to make this decision looking across the whole legal sector, balancing the cost of regulation with the benefits to consumers." (Organisation, Consumer Body/Panel)

"The regulator should be best placed to recognise if an unregulated title is being used which may create consumer risk." (Organisation, Legal Services Provider)

However, a few provisos were outlined, namely:

• That the regulator would need to be independent/there should be no political interference; and
• That consultation should take place not only with the Scottish Government but also with other relevant parties in the legal profession.

This would ensure consumer protection and would allow the regulator to monitor the situation in a constantly changing environment. One respondent, however, commented that this proposal would not work in respect of Option 3 in the consultation, where regulators would only have responsibility for their own branch of the profession.

Those who strongly disagreed with the proposal argued that it should be for the profession to suggest/decide, and that the government should not be limited in relation to who can provide advice:

"The Scottish Government should take views from all interested parties on such matters and not just from the regulator(s)." (Organisation, Legal Services Provider)