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I am writing to you in my capacity as COO of CILEx and - together with my colleague Karl Cerski, CILEx chief finance officer - Acting Chief Executive Officer.
You will recently have received a communication from us outlining some recent developments at CILEx, and I wanted to take this opportunity to write about some of the work we are doing in a little more detail.
We recognise that, as members, you have been concerned to learn of the challenging financial situation in which CILEx has found itself in recent times and the amount of changes happening at CILEx head office. These changes are part of a programme of reform designed to ensure that CILEx remains financially secure, that we can better support you - our members - and respond to the changing legal services market.
We are working with Council to develop a new vision and strategy to achieve this, and have produced a business plan for 2017 that will be considered by Council at its meeting on 30 September. The plan identifies a number of key projects designed to improve our engagement with you as members; to review our group structure and governance framework to prepare for increased independence from our regulator in anticipation of a forthcoming government consultation; and to ensure that our business model continues to support the future needs of our organisation.
We are looking at our membership grades and the products and services we offer to ensure that we are supporting you as you progress in your careers, and considering how our qualifications need to evolve to continue to produce practitioners who are valued by employers and have excellent career opportunities.
We will be running a series of regional roadshows that will provide an opportunity for us to hear your views, gain a better understanding of the issues that are important to you and determine how CILEx can better support you. I hope that many of you will be able to attend, and details will be published on our website, via social media and in our weekly e-newsletter over the next few weeks.
Finally, I would like to thank you for your continued support of CILEx and want to assure you that I, along with Karl, the President Martin Callan and CILEx Council are fully focused and committed to ensuring that CILEx is doing its very best for members.
We very much welcome and value your views, so I look forward to meeting as many of you as possible at one of the regional roadshows or, if you prefer, please do contact me directly by e-mail : linda.ford@cilex.org. uk
Richard Doughty, CILEx public a›airs officer , looks at the Competition and Markets Authority’s (CMA’s ) interim report on its market study into legal services, and how it may affect CILEx members.
Given just how much has been changing in the legal - and the wider - world over the last few months and years, we might all prefer a period of stability to let us both catch our breath and catch up.
In truth, though, change is constant, and standing still is the same as falling behind. CILEx members, as specialists in their fields, know that the more skilled they are in coping with change, the more useful they are to their clients and employers.
One of the next big waves of reforms to the legal services world is likely to arise from the CMA’s study into legal services. See also page 4 of this issue. To put this in context: the last time the CMA (or the Office of Fair Trading as it was then) looked into legal services, it kick-started a drive for reform that lead to the 163-page Clementi Review and the creation of the Legal Services Act (LSA) 2007. That Act introduced market liberalisation initiatives, including alternative business structures, and the ability for new groups of professionals to seek authorisation to practise the new ‘reserved legal activities’ independently, which only authorised persons were able to conduct. The LSA also separated the representative and regulatory functions of the professional associations, and gave birth to the Legal Services Board (LSB), the Solicitors Regulation Authority, the Bar Standards Board and, of course, CILEx Regulation.
This time around, we have already seen the LSB launching its vision for changes to the regulatory framework, and we know that the Government’s consultation on increasing independence of the regulators from the professional bodies is waiting in the wings. See also page 4 of this issue.
However, before we get ahead of ourselves, we can take a look at the CMA’s interim report, released this summer, for an idea of some of the themes it is considering to improve competition in our market.
The CMA’s primary concern focuses on the information available to consumers. In a market where consumers purchase services infrequently, and often at times of distress, there is not much evidence to say that they shop around before they buy. The CMA wants to make this easier, including more price transparency from firms, a beefed-up central information hub and greater interaction with comparison websites (or digital comparison tools).
Understandably, for many law firms that still charge by the hour, and only offer limited fixed-fee services, the idea of publishing all of their prices is onerous - some might say even misleading – given the singular nature of client-focused legal services. For CILEx members, there is a particular consideration though: it has not been that long since they got the ability to establish their own regulated law firms. CILEx’s chief operating officer Linda Ford put it like this: ‘Proposals to tackle price transparency, enabling online comparison and improving information for clients, are targeted at what are perceived as shortcomings from established legal businesses. However, it’s important that start-ups and market entrants are not overburdened if additional expectations are to be placed on legal service providers. It is still relatively recently that Chartered Legal Executives have gained the ability to establish their own law firms delivering reserved legal activities, and right-touch regulation is needed to see them thrive.’
CILEx is open to change, particularly change that benefits the public. What we would not want to see, though, are reforms arising from the CMA’s study into legal services that put market entrants and start-ups at a disadvantage compared to established providers.
CILEx has responded to the CMA’s interim report, saying that consumer protection should be the first criterion for assessing the impact of possible regulatory changes, along with the practicalities of the changes and their wider impact on society. However, consideration should also be given to how they will affect non-established legal businesses.
CILEx also recommends that reform of the regulatory landscape should be considered holistically, and that encouraging an independent and diverse legal profession, supporting the rule of law and improving access to justice are just as important in protecting the interests of consumers as promoting competition.
The final report is expected in December. It will, no doubt, precipitate a raft of changes, just as the last report of its kind did. Those who will thrive in a changing market are those who are most adaptable, and least stuck in their ways. It will be a challenge to legal professionals of all stripes, but one we feel CILEx members are uniquely placed to overcome.
Craig Jones, director of communications at the Advertising Standards Authority, writes:
I write in response to Richard Eaton’s article concerning the powers and accountability of the Advertising Standards Authority (ASA) (( 2016) July and August CILExJ p26 and p28 respectively). The ASA welcomes feedback and scrutiny on how we are exercising our regulatory powers, but I feel I must correct several key aspects of Mr Eaton’s piece and talk about some aspects of advertising regulation that were neglected.
The ASA is the UK’s independent advertising regulator. We have been administering the non-broadcast Advertising Code for over 50 years and the broadcast Advertising Code for over 10. Our remit was further extended in 2011 to include companies advertising claims on their own websites, and in social media spaces under their control. We operate a mixed self- /co-regulatory model: self-regulatory on the nonbroadcast side, but working closely with Trading Standards and other regulatory partners; and co-regulatory with Ofcom on the broadcast side. In 2014, Ofcom announced the renewal of its coregulatory relationship with the ASA for another 10 years.
The extension of our powers over the years, in agreement with government and statutory regulators such as Ofcom, has widened the field of consumer detriment we tackle. In 2015, we resolved over 29,500 complaints relating to 16,000 ads and, in addition, resolved 5,400 own-initiative compliance cases. As a result, 4,584 ads were removed or amended. Ninety-seven per cent of the complaints we receive are from members of the public, and over 70% concern potentially misleading ads. Trading Standards recognise us as the ‘established means’ for resolving these complaints in the first instance – allowing them to focus their limited resources on illegal activity.
We are funded by a voluntary levy applied to the cost of advertising space and airtime. We receive no taxpayer funding. In its 2013 policy paper, Connectivity, content and consumers: Britain’s digital platform for growth, the UK government commented that the ASA was an ‘exemplar of successful self-regulation ’ and that the ‘UK has found self-regulation of (…) emerging advertising practices to be a useful and effective approach’ .
Mr Eaton encourages readers to refer to specific ASA interventions relating to complementary and alternative medicine advertising (for instance, homeopathic advertising), an industry for which he is an advocate. The ASA makes no apology for its efforts to ensure that complementary and alternative health providers are able to substantiate medical claims. These services are marketed to vulnerable people who are battling sometimes very serious medical conditions. Members of the public expect the ASA to ensure that claims made in ads can be backed by evidence and recognised scientific scrutiny.
Mr Eaton made a number of observations about the legal underpinning of the ASA’s regulation. The Advertising Codes sit within the legal framework, which means that, where appropriate, they reflect the standards required in law, for example, misleading advertising. Our processes and decisions are subject to judicial review, and have repeatedly stood up to legal challenge. We have been subject to over 20 judicial review hearings, and have won all but our first judicial review and one point of a more recent judicial review.
Regulatory independence is also discussed. Crucially, our regulation is predicated upon a clear separation of powers between Code writing, Code administration and the funding of the system. Two-thirds of the members of ASA Council are independent of the advertising and media industries. Our funding arrangements operate at arm’s length to guarantee the ASA’s independence. Collected by the Advertising Standards Boards of Finance, the ASA does not know which advertisers choose to fund the system or the amount they contribute. A look at the rulings the ASA publishes each week on its website demonstrates that we apply the Codes without fear or favour. It is common for the ASA to rule publicly against ads by the biggest companies in the UK and the world.
We have consistently stated our commitment to regulation that is transparent, proportionate, targeted, evidence-based , consistent and accountable. In 2015, we published ‘Our Commitment to Good Regulation’ , in which we set out six commitments – modelled on the government’s Regulators’ Code. To check how we embed these values in our day-to-day work, this autumn we will appoint an independent auditor to review us and report their findings. Alongside our published standards, we have a welltested independent review process and our complaint handling systems and processes have been validated as meeting the principles of good practice by the Ombudsman Association, of which we are a long-standing member.
All regulators should be interested in continual improvement. We welcome engagement with all partners, including from the legal community, who have an interest in effective regulation.
Louise Tyrrell, practice and membership support officer at CILEx, writes: A member contacted the editor of the Journal as she considered that there was a misconception among employment lawyers around the rights that Fellows have to advise on settlement agreements. We thought that this would be a good opportunity to clarify the position to our members.
In order for a settlement agreement to be legally binding under the Employment Rights Act (ERA) 1996, a number of criteria need to be satisfied, namely:
A person is a relevant independent adviser if they are a qualified lawyer (ERA s203(3A)( a)) , or if they are a ‘person of a description specified in an order made by the secretary of state’ (ERA s203(3A) (d)) .
Under the latter, the Compromise Agreements (Description of Person) Order 2004 SI No 754 meant that Fellows, who worked in a solicitors’ practice and who were supervised by a solicitor, were relevant independent advisers. However, the requirement to be supervised by a solicitor was removed by the Compromise Agreements (Description of Person) Order 2004 (Amendment) Order 2004 SI No 2515. So, while there is no requirement to be supervised by a solicitor, the requirement to work in a solicitors’ practice remains. This condition was reinforced by Compromise Agreements Order (Description of Person) Order 2005 SI No 2364.
The Legal Services Act 2007 (Consequential Amendments) Order 2009 SI No 3348 provided that ‘employed by a solicitors’ practice’ was substituted with ‘practising in a solicitor’s practice (including a body recognised under section 9 of the Administration of Justice Act 1985)’. This, in practical terms, means that those Fellows who become managers in such legal practices (and so technically are not ‘employees’ ), for example, in alternative business structures, are able to continue advising on settlement agreements.
The Enterprise and Regulatory Reform Act 2013 substitutes ‘compromise’ agreements with ‘settlement’ agreements. No other changes were made to the rules relating to who can give advice on settlement agreements.
For the purposes of ERA s203(3A)( a), ‘qualified lawyer’ refers only to someone who is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation within the meaning of the Legal Services Act 2007 (ERA s203(4)( a)) . Therefore, Chartered Legal Executive Advocates and Fellows who successfully obtain litigation rights would be a ‘relevant independent adviser’ for the purposes of the ERA.
The final exception to the requirement to be employed in a solicitor’s practice, applies when settlement agreements are made under section 58(5)( c) of the Pensions Act 2008 (by virtue of the Compromise Agreements (Automatic Enrolment) (Description of Person) Order 2012 SI No 212).
This new column features the reflections of an anonymous Chartered Legal Executive working in a large, busy practice.
One of my greatest regrets is that I did not take advantage of more opportunities to learn different skills when I was younger and there were so many free options available, and I don’t mean just law-related stuff either.
One of the greatest skills that any good lawyer needs is the ability to network well. This can be daunting for some, and yes the idea is to talk business. But in my experience I find that ‘business’ is usually only a small part of the conversation that you find yourself having at networking events. After you’ve talked ‘business’ : what next? What is there left to say? What do you say when asked that horrible question ‘What do you do in your spare time’ ?
Yes, it is important to work hard. But when building relationships with work referrers, they are just normal people carrying out a different job, and there is only so much ‘business’ to talk about. After the initial discussion, they want to get to know you. You can, of course, win new work by doing a great job (which is possibly the best marketing there is), but often - in order to get that first piece of work - you need to create opportunities and to stay in people’s minds in the first place.
I wish that I had known this 10 years ago. Back then, I suppose my hobby was ILEX. That is a great hobby to have by the way, but in my opinion it is important to have more to say about yourself: find fulfilment in other things too. I reckon that this will make you an even better lawyer than you are already or become the lawyer you aspire to be.
My most recent adventure involved attending a chalk paint furniture workshop. I met interesting, lovely people and guess what: it led to me winning new work referrals from my new-found connections. My point is that we are actually always, even unintentionally, networking.
I started a new job before Christmas last year. In my interview, I was asked what I like to do outside of work. Woohoo, hallelujah! I had a great answer: ‘I love sourcing dated furniture and revamping it to give it a new life.’
Kirsty Hier, CILEx centre and membership support officer , writes:
On 2 July 2016, the South West Wales branch held its summer event at the Stradey Park Hotel in Llanelli. The evening began at 6.30 pm when attendees were welcomed with complimentary bubbly, wine and soft drinks followed by a freshly cooked buffet, including lasagne, curry and nachos. The branch members, including Sian James, the chairperson, Sian Turvey, treasurer, and Sarah Lowe, the newly appointed secretary, were also joined by Adrian Morley, vice president of the Swansea and District Law Society and Martin Callan CILEx President. The summer social marked one year
to the day since the branch launched in 2015. The event was organised to give thanks to local CILEx members, and other legal professionals, who had supported the branch through its first year. Since its launch, the branch has supported local CILEx centres with open days and careers fairs, and has held CPD events, including a work based learning workshop and a CPD compliance workshop. There have also been Christmas and summer social events. Thanks to the hard work of branch members, local CILEx centres and the support staff at CILEx, the branch now has a dedicated and enthusiastic committee and a growing membership.
Martin Callan, said: ‘The new South West Wales Branch was a pleasure to visit, and it was good to see some old faces as well as lots of new faces. The branch has the benefit of a number of CILEx-accredited centres surrounding it, and I wish the branch all the best in achieving its goals and growing its membership. I’m very much looking forward to an opportunity to return over the next year.’
Elizabeth Rimmer, director of LawCare, writes:
‘Technostress’ is the term to describe what happens to us when we experience information overload brought about by all the technical wizardry designed to make our lives easier. Authors Dr Larry Rosen and Michelle Weil, in their book Technostress: Coping with Technology@ Work@Home@Play, describe technostress as ‘multitasking madness’ . It results when we attempt to cope with several tasks at the same time.
Although from the outside we may appear to be dealing with one issue, our brains are performing a juggling act to keep all those other issues which require our attention active in our consciousness. The harder this juggling act becomes, the more our performance levels decline. The more we get interrupted in the execution of one task, the harder it can be to pick up where we left off.
Multitasking can lead to people feeling as though they are no longer in control, which is a major symptom of stress. Other signs are difficulty in concentrating; inability to remember things; and difficulty getting to sleep or relaxing due to the unwelcome presence of too many thoughts running through your head.
E-mail appears to be responsible for a specific group of problems. The process of forwarding e-mail documents is so simple that it is very common now to distribute vast quantities of information to many people within an organisation; in the past, the time involved in duplicating the same data on paper would have made this impracticable. Hence, people are bombarded with information in the workplace, much of which is not really necessary.
Another form of technostress is struggling to come to terms with the rash of new technologies. When changes are imposed without consultation or adequate training to adapt, this can contribute to feelings of stress. Thus, it is vital that firms ensure that their staff have an input in the decision-making process before any new technology is introduced, and receive appropriate training for its operation.
There are several simple measures that can be taken to minimise technostress, including the following: •
In this new column, Katy Ferris, a year-one law lecturer at Huddersfield University, will provide practical study and revision hints, tips and strategies.
It is an indispensable truth that most areas of law are not ‘black and white’ , where the answer is guaranteed to be right or wrong. However, by ‘grounding’ your answer with statutory materials or case-law , you will be helping to ensure that your answer is based on doctrine or legal principle and the lecturer can identify how you have arrived at your conclusion. The textbooks will include the most important case-law and statutory materials that are necessary for your understanding of the topics included. When you are studying, you
should make sure that you are able to give a description of the law, and then undertake an attempt to place this into context and explain how the law is used and why it is important to be aware of it.
Identify which area(s) of law is being examined
This will ensure that you focus on the specific aspect of the topic. For example, there is unlikely to be a question on ‘employment law’ , but rather a question focusing on employment status; discrimination; health and safety of workers; dismissal, and so on within the broad topic of employment law.
It is most important that you understand not only what the court has decided, but also on what grounds the decision was made. Knowing ‘the rules’ is not enough: it is essential to study the judgments and understand the reasoning which led the court, in a particular case, to uphold the arguments of the successful party and reject the contentions put forward – no doubt persuasively – on behalf of the unsuccessful party.
It is also important to be critical when studying the cases. Ask yourself:
- whether the result produces injustice or inconvenience; and
- whether there are any situations in which you would not want the result to apply and, if so, how they could be distinguished?
If it is an older case, you should also ask yourself whether the reasoning has been overtaken, in general, by changes in social life and/or commercial life.
Describe the law and those statutes and cases that are the most relevant to the answer
This does not mean that you should simply repeat every aspect of the statute or a case of which you are aware, but rather describe those areas of the law that are pertinent to the question.
Apply the law (in problem questions) or analyse the law (in essay questions)
It is this aspect of the question that will, in general, separate students who obtain first-class grades from those who obtain lower marks (assuming that the law has been identified and described in a similar manner). It is the quality of the application/analysis that demonstrates understanding and increases the persuasiveness of the answer provided.
BENEFIT OF STRATEGY 3
The three-step approach helps you - in your study and revision - to get into the habit of making sure that you have learnt sufficient material, and know how to present it clearly. By following this approach, you will pick up marks in a logical fashion for the knowledge you have.
Nick Hanning, chairperson of the CILEx Pro Bono Trust, writes:
Last month, Peter Farr a trustee of the CILEx Pro Bono Trust, looked at recent research in meeting legal needs. As he reported, the figures are alarming and show that getting affordable legal advice is a very real problem for a high number of people.
Pro bono can never and should never be seen as the panacea to meeting unmet need but helping those in need is certainly one of the reasons people choose to do pro bono work. Doing pro bono does not have to be an exclusively selfless exercise. While it inevitably involves a degree of sacrifice of time, there are considerable benefits which can accrue.
Doing pro bono work can broaden your experience, help you move into a different area of legal practice and, thanks to the new contacts you will make, serve as a valuable marketing tool for both you and your employer.
So, if pro bono work is such a win-win activity, why are more people not doing it? According to our last piece of research, about 25% of the CILEx membership is doing some sort of pro bono work. That is a good number, but it means that about 75% are doing none.
From past experience, we know what some of the barriers have been and the good news is most of those can be overcome. Here are what has previously been identified as hindering members’ involvement in pro bono work and what you may be able to do about it.
I don’t know where to do pro bono
Much as there are lots of opportunities, it is not always easy to find them as the advice sector is very disparate, with a large number of organisations delivering advice in many different ways. Some obvious ports of call are within your own firm as many larger firms have dedicated pro bono programmes. A local college or university may also have a pro bono programme though these may limit involvement to their own students.
If you are lucky enough to have a Law Centre® near you, they will nearly always be glad to have new volunteers as too may be your local citizens advice bureau (CAB). There may also be local community projects which would welcome some help.
LawWorks supports a large number of advice clinics across the country, and may be able to refer you to your closest.
The Free Representation Unit (FRU) provides representation in employment and benefit cases and, while there is an assessment process, FRU may offer valuable opportunities for in-depth work.
Last, but hopefully not least, CILEx Pro Bono Trust has its own pro bono project through which CILEx members support barristers who are giving pro bono help in deserving cases. There will be an article about this in the next edition of the
Journal, but more details are available on our website. There is also more information there about how to get involved in pro bono.
I’m not qualified to advise
This a familiar and legitimate concern for CILEx lawyers who have qualified in one area of work (for example, conveyancing) and worry about advising clients on, say, family law or employment problems. It is also a problem for those yet to qualify.
The answer here lies in what work is being done and the provision of training. Law Centres, CABx and other advice centres will always provide training in the area(s) of law in which they want help to ensure that you can give the help they need.
All our members have or are learning important legal skills which apply across all legal work. The ability to analyse problems and understand and explain rules and procedures becomes second nature to us, but are valuable skills that can be deployed even in areas in which we may not be legal experts. For example, helping to complete social security benefits forms is of immeasurable importance to applicants, but they often lack the skills to do so alone.
While it would be professional misconduct to give advice without being competent to do so, the nature of the work in the advice sector is such that there is a wide variety of work which is badly needed but does not require expertise in a new area of law.
It is a feature of our own pro bono project that you are working alongside a barrister, who is the lead adviser, so you need not be concerned about having expertise in the area in question: it is your other skills which matter.
I’m not insured to advise
It is, of course, essential that before assuming responsibility for advice you have adequate professional indemnity insurance: it protects you and ensures that the client is compensated in the unlikely event something goes wrong.
When doing pro bono through your firm, or through a Law Centre, CAB or other advice centre (search Advice UK for an advice agency near you), you should be covered by their policy. The same should be true wherever you work within a scheme or project run by another organisation (but always ask if you are in any doubt).
If you set up or run your own pro bono project, you will need to put your own insurance in place. This may not always be easy, but there are specialist insurance providers. If you need help with this, then get in touch with us as we may be able to help.
For the record, the CILEx Pro Bono Trust has the benefit of a bespoke indemnity policy, so all our volunteers are fully insured for each piece of work they do.
And finally ...
Those are just some of barriers, but we know there others. Lack of support from an employer is difficult to overcome, but not impossible. Sheer exhaustion from working, studying and bringing up a family is not a barrier at all: it is goldplated exemption - you have already earned your medal.
While we have some knowledge, we would like to have a lot more. We would like to understand what is happening now and how we can overcome the above and any other barriers. So, we have launched a survey which aims to find out how many members are doing pro bono and what pro bono they are doing. If they are not doing pro bono, we would like to know why they are not: is it out of choice or because they believe that there is no opportunity for them to do pro bono work. Please visit our website, give details to complete survey and help us learn. (Did I mention you might also win a prize? No? Well, best check the website then!)
Learn more and do CPD!
CILEx Pro Bono Trust has a training module which provides valuable information about the pro bono sector and why and how to get involved in pro bono work. Besides offering guidance about the hugely varied ways of doing pro bono work, the module also meets your annual professionalism CPD requirement. The Trust would be happy to attend a branch or other members’ meeting to deliver the module and answer any questions.
National Pro Bono Week is coming soon!
From 7 to 11 November 2016, CILEx will be promoting events throughout the week, so why don’t you get involved now.
Consultation on moving Land Registry operations to the private sector: an update
Since the consultation closed formally on 26 May, the new ministerial team in the Department for Business, Energy and Industrial Strategy has been reviewing and considering the responses about the proposed move.
CILEx is pleased to see that the government is taking the time to consider all of the issues involved fully. We look forward to working with Land Registry and the government, and other stakeholders, on this vital subject. CILEx would like to thank members for their helpful and interesting contributions to the consultation.