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Insight

LSB Report Into Legal Services Regulation

In its recent report Assessment of Current Arrangements for Sanctions and Appeals, the Legal Services Board (LSB) concludes that the sanctions and appeals regimes of the frontline legal services In its recent report Assessment of Current Arrangements for Sanctions and Appeals, the Legal Services Board (LSB) concludes that the sanctions and appeals regimes of the frontline legal services regulators are an inconsistent "jumble" of different powers that protect lawyers rather than consumers. The LSB has called on the Government to bring in legislation to achieve the changes the LSB believes are necessary.

The LSB report identifies a number of suggestions for improvement, some of which the LSB is able to take forward on its own initiative. However, in order for other proposals to be implemented which lie outside the LSB's remit, legislative change will be required.  In its assessment paper, the LSB identifies four features of best practice in regulatory sanctions and appeals regimes, namely:

Transparency:

Consumers and the regulatory community should have access to information about arrangements concerning decisions on sanctions and appeals in order to help build and maintain confidence in the regulatory enforcement framework.  The report concludes that enforcement policies must be published, easy to locate on websites and should be consistent with regulatory best practice. Information should be easily accessible and disclosed to key stakeholders and the public about when, why and against whom enforcement action has been taken.

Standard of proof:

The standard of proof should be consistent across the legal services sector. This will maintain confidence across the sector as individuals will be treated consistently for similar allegations of misconduct. The standard of proof should be the civil standard rather than the criminal standard.

Consistency of powers and sanctions                                              

There are a significant number of legal entities with whom a consumer could contract. The LSB considers that it makes little sense that the same misconduct by a legal professional can be sanctioned differently and concludes that it should not be possible for firms to 'game' the system by choosing a regulator without sufficient sanctioning powers or regulators.  Legal regulators should have a consistent approach to the way they apply sanctions.

Fair and effective appeal arrangements

The right to appeal the regulatory sanctions included in the licensing authority guidance is a fundamental right and decisions should be able to be challenged. The operation of multiple appeal routes risks inconsistency of decisions and inefficiency.  Appeal arrangements must be independent from the body or persons who made the original decision and the appeals process and decision itself must be open and transparent as well as affordable and quick.

The Solicitors' Disciplinary Tribunal (SDT) which still uses the criminal burden of proof responded to the LSB's report, suggesting:

"For the LSB to support a proposal for adopting the civil standard of proof on the basis that five small players in the legal market use it, without attempting any real analysis of the sort of misconduct or the number of cases they handle each year, is not a sound foundation for proposing wholesale change to the standard of proof, sanctions and the appeals regime."

It will be interesting to watch how these contrasting views are resolved.  The report notes the shift towards the use of the civil standard of proof in health and social care regulation and recognises that the Judicial Conduct Investigations Office also uses the civil standard of proof.  The Government's views and actions will no doubt be eagerly awaited by the LSB, the SDT and the other smaller regulators.

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