THE HOUSE OF LORDS, OCTOBER 4TH 2007
For Better or For Worse, Change is Coming and It Affects Us All
Lord Hoffmann presided over an attentive gathering of TIPLO members and guests on 4th October at the House of Lords. We are most fortunate to enjoy an annual evening event at this most prestigious location and appropriately, given the parliamentary proximity, the topic for debate was the Legal Services Act, expected to receive Royal Assent in the first week of November. Its implementation and impact on the legal services is a topic which unites the Bar, the Solicitors’ profession and the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys. Richard Miller QC chaired the event, and as Chairman of the Intellectual Property Bar Association and Bar Council member, he has been actively involved in this area of legal reform. The distinguished speakers were Peter Williamson, former President of the Law Society and current Chairman of the Solicitors Regulation Authority, the independent regulatory body for the solicitors’ profession, and George Leggatt QC of Brick Court Chambers, Vice Chairman of the Bar’s corresponding regulatory body, the Bar Standards’ Board.
Members of TIPLO fared poorly when asked by Mr Leggatt to give a show of hands of which members or guests had actually read the Clementi Report, or the Government White Paper on Legal Reform, or the Report of the Joint Committee on the draft Legal Services Bill, or the Bill itself. Two or three wavering hands were raised, but most of the audience confessed ignorance of the details of the new frameworks and practices which are to be imposed upon us all. Mr Leggatt explained that it was no longer felt acceptable to have a combined representative and regulatory purpose within one professional body, principally in order to avoid any perceived conflict of interest. He reminded us that the office of the Lord Chancellor had been “unravelled” for the same reason. The proposed new model adopts a “hybrid approach” with lay members and professional members securely “ring fenced” from the rest of the profession and subject to independent oversight by a new body to be called the Legal Services Board. However it is (at least currently) intended that disciplinary matters within the professions will remain internally administered and regulated.
Mr Williamson pointed out that though change is inevitable and is looming on the horizon, full implementation of all aspects of the changes to be imposed will be some time yet in coming. He estimated 2011 or 2012 before there is a settled system and full understanding of many of the changes which he described as potentially complex. Part of his talk focused on the new Alternative Business Structures which are to be authorised by the legislation and their potential suitability to IP practitioners. He said that, although many firms and practitioners were already gearing up for change, he could not see Alternative Business Structures being in common practise or “up and running” in full swing till, perhaps 2010, with potential for inevitable “teething” problems along the way. He remarked that many practitioners are concerned about issues of conflict in certain mixed practices and that the day when “Tesco may set up a legal services department” or “Clifford Chance may float” are likely to be a long way off.
Both Mr Williamson and Mr Leggatt were united in speaking of a desire to maintain, improve and build upon on the generally high standards of regulation, training, education and disciplinary practice that the legal professions have enjoyed for many years. Also in their praise for the excellence of the currently appointed lay members who introduce a unique perspective and experience to the role of regulation and oversight. However, both esteemed speakers recognised that many legal professionals have serious concerns about certain matters relating to the reforms particularly the costs currently envisioned and likely to be incurred in the future, and the increasing demands likely to be put upon legal professionals in terms of their own time and voluntary service. They also expressed the obvious uncertainty over how the currently proposed schemes will actually work in practice. Will they be imposed with a “light touch”, as Sir David Clementi recommended in his Report, or with a more draconian and oppressive power as potentially they are able to do? Undoubtedly the concerns currently held by many professionals are not necessarily unfounded and only time will tell if this momentous upheaval, described by Mr Miller in his opening remarks as “providing scope for some of the most important changes to the organisation and regulation of our respective professions that have ever occurred”, will be a change for the better, or for the worse.
Questions followed the speeches. Lord Justice Pumfrey asked that members of the Bar should consider putting themselves forward to volunteer to join the lay and other members of the Bar Standards’ Board, and Mr Williamson echoed a desire that all solicitor practitioners volunteer their services when new places become available.
Concern was expressed for ITMA and CIPA in view of their relatively small size, lower income and lack of obligation upon attorney practitioners to be members of either of the Institutes. Catherine Wolfe (ITMA Secretary) commented that she was pleased to note the support of the general IP profession to members of ITMA, and thanked the speakers and chairman on behalf of her members.
As ever, there were a number of stimulating and incisive questions and comments from the audience, giving rise to lively debate and, in some cases, good humour! Those who taxed the speakers’ panel included David Perkins and Joe Cohen, who shared personal observations and experiences. Clive Thorne asked if the UK bodies are looking to international standards for guidance and possible standardisation. Peter Williamson assured the audience that the solicitors’ profession is active in reaching overseas to seek information and assistance in optimising its role in the new framework. He is to travel to Singapore for such purpose next week.
Simon Thorley QC had been impressed with the degree to which lay members of the various panels had been assisted in gaining sufficient education and knowledge of the professions and professionals over whom they are to exercise control or guidance. It was agreed that this should be ensured as an ongoing requirement for all lay persons, who are paid for their services.
Kenneth Chrystie was surprised that the speakers had paid little attention to the distinct issue of competition and the impact of the new Act on this aspect of the provision of legal services. Mr Williamson was quick to respond that greater competition should increase standards of excellence.
All the speakers agreed that the Clementi Report sought to ensure and implement changes which would provide greater and more assured standards to safeguard the public. As Mr Leggatt suggested, in the 21st century the legal profession cannot be seen to be “out of step” with other professionals like doctors. In separating the representative and regulatory roles of the legal profession, it is hoped that there will be increased consumer confidence in the profession as a whole.
Mr Leggatt also observed that to say “leave it to me to sort out, I’m a lawyer” in the context of self regulation was inappropriate nowadays and that it was like saying “trust me I am a politician !”
In introducing the debate Mr Miller had warned the audience that the topic of regulation was ‘not very seductive’ and, whilst it is fair to say that there was little to seduce the audience, there was plenty of lively debate to stimulate us, and unite us as a cohesive legal profession, with common aims, concerns and struggles as we seek to keep pace with modernisation and the huge changes in our professional lives.
All images Copyright The Atticat Studio kb@theatticat.com
Synopsis kindly written by:
Denise McFarland, TIPLO Committee & Founder Member
Three New Square Intellectual Property Chambers, www.3newsquare.co.uk
