Regulation of Alternative Business Structures by Solicitors Regulatory Authority - Essay Example

Regulation of Alternative Business Structures (ABS) by Solicitor’s Regulatory ity (SRA) By 25, March Reflective Paper Every individual has strengths and weaknesses which impacts differently on their life and the determining factor is how one understands and uses their strengths and weaknesses. The research I did was based on the English Legal Systems. My first step was to breakdown the question, gathered material applicable and made a draft which I employed as the working paper. My main strength revolves around my ability to answer the questions asked within the stipulated word limit and proper footnoting and referencing the work. I admit that I feel good from the feedback which I feel endorses my question answering skills which involves a clear breakdown of the question into all possible components, researching each component separately, and developing a comprehensive answer to the question. From the feedback, it is clear that I have good ability to dissect a question in such a manner that all components of the questions are set out. Secondly, the feedback endorses my research skills in regards to the components of the questions dissected above and my ability to answer each component satisfactorily. Moreover, it endorses my brevity, which inculcates ability to communicate clearly using minimum words possible. Besides that, I learn that my question answering technique and structure meets the legal writing skills expected of me, whereby I bring out the issues clearly, discuss the rules applicable, analyse the application of the rules on the issues raised and ability to make a valid conclusion which is supported by the case laws and authorities generally. Finally, I learn that I have mastered the art of referencing using the OSCOLA format. Referencing forms a key part of academic writing. I believe that I can replicate my academic writing skills into legal writing and drafting. I am conscious that I still need to keep learning to better my skills. However, key developmental issues emerge from the feedback. I need to learn to read through judgements in order to understand why judges ruled the way they did. I understand that rules that emerge from case laws are supported by a particular line of reasoning by the respective judge. Further, I understand that it is important to understand the reasoning of judges as it shows why judges ruled the way they did. To add, it is clear to me that I have to widen the scope of my research and cease relying on only one book. I understand this to mean that I have to answer the question with appreciation of the fact that several viewpoints on a certain issues may exist. Authors may approach an issue differently and it is important to appreciate all these positions. Additionally, I learn that I have to go beyond the principles laid down by an author to their commentaries on the same in order to be able to advance a well-informed commentary on the same rather than describing what other authors have stated. Finally, I learn that I have to improve on my proof reading skills. The feedback indicates the need to proof read my work. Well, I always proof read my work but from the feedback, it is clear that I have to improve my proof reading skills. I decipher the importance of proper proof reading, in order to eliminate latent mistakes that may compromise my other skills such as legal writing skills and ability to answer the question asked well and in a structured manner. I shall employ the above feedback my next research which is titled ‘Regulation of Alternative Business Structures (ABS) by Solicitor’s Regulatory Authority (SRA). I shall blend my strengths and weaknesses in a manner that the former masks the latter. I shall ensure that I answer the question by undertaking a thorough research whereby I shall use a horde of resources to support my work and to appreciate opposing viewpoints. I appreciate that it is only by comprehends several viewpoints that emerge from stakeholders. This way, I will be able to answer the question clearly especially on the second limb of the paper: why SRA was given the regulatory authority. I shall have to appreciate the reasoning behind the various stakeholders’ viewpoints. Finally, I shall ensure that I proof read my work to eliminate all the latent mistakes. Words 701 Regulation of Alternative Business Structures (ABS) by Solicitor’s Regulatory Authority (SRA) Acronyms Used ABS Alternative Business Structure LSA Legal Services Act 2007 LSB Legal Services Board REL Registered European lawyers RFLS Registered Foreign Lawyers SRA Solicitors Regulatory Authority How SRA was awarded the power Solicitor Regulatory Authority (SRA) is an independent body, subsidiary to and a creature of the Law Society. Its main objective is to regulate solicitors of England and Wales, law firms of England and Wales, non-lawyers, who can be either managers or employees of firms that it regulates, and other types of lawyer, such as Registered Foreign Lawyers (RFLs) and Registered European lawyers (RELs). 1 The Authority does this by setting principles and codes of conduct that those regulated by it have to abide by it. It was established in accordance with Sir David Clements recommendations2 that professional bodies holding both representative and regulatory responsibilities divorce these roles and carry them separately. SRA is the regulatory arm of the law society and exercises any regulatory authority bestowed to latter by Legal Services Act (LSA). Legal Services Board (LSB) internal governance rules require that regulation be divorced with representation. Solicitors Act (1974), the Act which establishes the Law Society, permits it to delegate any of its function, to a wholly owned subsidiary.3 LSA recognises Law society as the approved regulator of solicitors and, therefore, any powers exercised by the SRA under the Act are donated to it and by virtue of its relationship to the Law society. Law society remains legally answerable to LSB and any penalty or directions are exercisable against Law society but not SRA. One of the objectives of Legal Services Act 2007 (LSA) was to regulate the manner in which legal services are offered and those that could offer reserved legal services.4 Under the Act, only a licensed person, or a person exempt to the activity in issue, can carry out a reserved legal activity,5 and the Act makes it an offence for one to carry out a reserved legal activity that one is not authorised by the Act. According to section 18, for a person to qualify as an authorised person under the Act, they must be licensed by an approved regulator responsible for that relevant activity. Additionally, a licensable body which holds a licence from a licensing authority in respect of relevant activity can qualify under the Act as an authorised person. The Act empowers approved regulators to authorise persons to carry out an activity which qualifies as reserved legal activity and which the regulator is the relevant approved regulator. A relevant approved regulator is an approved regulator designed by the Act to regulate certain reserved legal activities. Part one of Schedule 4 of the Act lists the approved regulators and the accompanying reserved legal activities for the regulators. The schedule lists the Law Society as an approved regulator responsible for the exercise of a right of audience, the conduct of litigation, reserved instrument activities, probate activities and the administration of oaths. The Act liberalised the manner in which legal services are offered. It makes provisions which depart from the culture and traditions of the legal profession whereby only lawyers were allowed to own and operate law firms. LSA has allowed non-lawyers to own law firms, either directly or indirectly and offer both legal and non-legal services through a model known as Alternative Business Structures (ABS). However, for a body to qualify as an ABS, it must be a licensed body. A body is a licensable body if a non-authorised person is a manager of holds interest in the body, or another body holds an interest in the former and a non-authorised person exercises more than 10% of voting rights in the latter.6 For a body to qualify as an ABS, it must be licensed by the relevant licensing authority. The Act empowers the Board to act as the licensing authority in respect of all reserved legal activities. However, the Act empowers the Board to delegate these powers to any person it deems appropriate.7 Part one of Schedule 10 allows for approved regulators to be designated, by order, as licensing authorities in relation to one or more of the reserved activities. A body desirous of becoming a licensing authority under section 73 can apply to the Board for the Board to recommend to the Lord Chancellor to make an order designating the body as a licensing Authority. Being an approved regulator, therefore, law society was entitled to become a regulator of an ABS in respect to the reserved legal activities reserved to it under part one of Schedule 4. Since these functions falls under the regulatory arm of Law Society, SRA becomes the body entitled to exercise these powers. Consequently, SRA relied on these provisions to apply to the Board to be recognised as the licensing authority for ABS venturing into the reserved legal activities that falls under the jurisdiction of Law Society. Why the Solicitors Regulation Authority were awarded the power SRA was awarded the power to licence to organisations applying to become Alternative Business Structures due to a horde of factors. To begin with, as stated above, LSA has ushered in radical changes to the traditional structures and organizations that have been in existence in the legal profession in England and Wales for. Most of these traditions have highly restricted the growth of the legal profession and access to legal services by the consumers and in the process making access to justice expensive. LSA materially extinguishes the difference in roles between barristers and solicitors. This is especially so in terms of eliminating obstacles restricting members of the two professions from practising together either in partnership or other business structures. LSA forms an overlap between the two professions in terms of both function and entity. Solicitors can now venture what has traditionally been an exclusive jurisdiction of barristers and vice versa. Since these two regimes have traditionally been regulated separately, there was need to establish a new regulatory framework that addresses these new challenges emerging from admission of ABS. In this new environment, it becomes extremely difficult to adopt the title related regulation, and there is a need to switch to a function related model in order to achieve objectives of regulation. Secondly, it was necessary for SRA to take up the role in order to protect member’s interest. Even if SRA did not take up the role, the entry of ABS into the legal services sector was inevitable.8 As stated above, the Act empowers LSB to license licensable bodies, and LSB could choose to regulate ABS directly. There was the potential for the ABS to edge traditional firms in the competition, by engaging in pricing strategies. Some of the entrants such as AA9 have financial muscle, well-known brand and an already existing customer base.10 Therefore, it was in the best interest of the legal profession for SRA to take up the role in order to level the playing field between the ABSs and traditional firms and ensuring that the latter has a chance to compete and to remain relevant. Thirdly, LSA has radically changed the manner in which law firms are owned and managed; it allows ownership of law firms by both lawyers and non-lawyers. Moreover it allows non-lawyers to participate in management of entities that offer legal services. Besides, it has expanded ways in which law firms can raise capital.11 Traditionally, the ownership of law firms has been a reserve of lawyers and has restricted solicitors from owning law firm with non-lawyers in addition to restricting solicitors from recruiting non-lawyers in management capacity. Restrictions have also existed even within the two divisions of the legal profession; barristers and lawyers. These restrictions have been key pillars of the legal professions for decades. However, they have inhibited and acted as obstacles in the growth of the legal profession as it bars the use of expertise of other professions. Additionally, it has acted to restrict ways in which law firms can raise funds leading to proliferation of small law firms. This new structure brings new risks to consumers of legal services, risks associated with possible commercialisation of the profession at the expense of standards and quality. One of the key sources of risk emanates from the entry of other professions into the legal profession. Different professions have different professional ethics. For example, while the legal profession obligates lawyers to maintain confidentiality of client’s information, auditors have a duty to disclose material information. The new providers are likely to impose their way of doing things which may not augur well with the intricacies of the profession. Consequently, there was the need for SRA to undertake the regulatory role in order to discern and ameliorate the new risks posed to the consumers. In essence, it was necessary to give SRA the powers to regulate SRA because it is best placed to achieve the regulatory objectives set out in LSA; that is promoting public interest, improving access to justice, supporting the constitutional principle of the rule of law and promoting strong, independent and effective profession. Words 1297 References Statute Legal Services Act 2007 Solicitors Act 1974 Web Resources John Wotton, ‘Fission or fusion, independence or constraint?’ (Law Society, 25 January 2012) < http://www.lawsociety.org.uk/news/speeches/fission-or-fusion-independence-or-constraint/> accessed 24 March 2014 John Hyde, ‘New model pioneers win ABS status’ (Law Society Gazette, 25 December 2012). http://www.lawgazette.co.uk/68823.article accessed 24 March 2014. John Hyde, ‘Top-70 firms added to ABS roster’ (Law Society Gazette, 19 2013). accessed 24 March 2014. John Hyde, ‘AA makes move into legal market with ABS licence’ (Law Society Gazette, 5 November 2013) http://www.lawgazette.co.uk/practice/aa-makes-move-into-legal-market-with-abs-licence/5038578.article accessed 24 March 2014) Linda Lee, ‘Decision time on ABSs’ (Law Society Gazette, 3 February 2011) < http://www.lawgazette.co.uk/58979.article> accessed 24 March 2014 Solicitor Regulatory Authority Website, accessed 24 March 2014. Report of the Review of the Regulatory Framework for Legal Services in England and Wales (December 2004) accessed 24 March 2014. Read More