Promoting legal well-being

Academic strategist calls for new approach to legal regulation

A new approach to legal regulation should recognise that an expert non-lawyer can be better than a non-expert lawyer, a leading academic legal strategist says in a paper published today. Professor Stephen Mayson argues that the focus of regulating lawyers should be the promotion of legal well-being among consumers of legal services.

Professor Stephen Mayson

Mayson, an honorary professor at the UCL centre for ethics and law, led an independent review of legal services regulation which reported in September 2020. His new paper, now published by UCL, is a supplementary report.

It concludes that the fundamental weakness of the current regulatory structures is their “front-end loading”. These focus on before-the-event requirements to reduce the prospect of harm, leaving consumers without after-the-event redress when they suffer harm regardless.

Instead of protecting consumers from wrongdoing, the current system relies on users of legal services taking action when things go wrong:

Although consumers of unregulated providers of legal services are not without remedies, the entire burden of seeking redress falls on a wronged consumer in terms of deciding to take action, funding it and proving harm.

Rather than focusing on the absence of harm, Mayson says we should aim for the presence of well-being:

The concept of legal well-being imagines a state in which consumers can have confidence in their choice of legal advisers without burdensome enquiry about their regulatory status; in which the legal sector offers ease of access to advice, representation and document preparation; in which enquiry, engagement and redress are similarly less burdensome processes; and through which the legitimate participation of citizens in society is supported, in accordance with their legal rights and duties.

Mayson recommends extending the scope of regulation to allow competent providers who are not legally qualified to offer legal services in a regulated environment:

I do not deny for a moment that there are circumstances where the advice and representation of a fully qualified lawyer will beyond any doubt be in the best interests of a citizen and, indeed, of the broader public interest. Nevertheless, we must be careful not to universalise these cases into a rule that therefore only lawyers should be allowed to offer legal services for reward.

He accept that this might increase costs, especially for the most vulnerable. But it is they who need reliable legal services the most.

Comment

There will be opposition to Mayson’s proposals. Some of them may be seen as idealistic and even unrealistic. But they are well-researched and worthy of serious consideration.