CQS, TLS, CC and the SDT – a few thoughts on independence

The Advertising Authority’s decision that the Law Society produced a misleading advert for its Conveyancing Quality Scheme. You can read the decision here (it is short). In sum,

The ad stated “All Law Society Conveyancing Quality Scheme firms go through rigorous examination and testing to demonstrate that they have a high level of knowledge, skills, experience and practice”.  …given the reference to “rigorous examination and testing” and a “high level of knowledge, skills, experience and practice”, we considered that they would understand members of the CQS had met a standard above and beyond basic requirements.

While we acknowledged that firms were granted CQS accreditation on the basis of independently-verified information attesting that they met an adequate standard in terms of their competency, conduct and ability to carry out conveyancing transactions, we considered that this amounted to the minimum level of “knowledge, skills, experience and practice” that consumers would expect from a firm that was licensed to undertake a major legal transaction on their behalf. In that context, and in the absence of any routine, independent checks to assess the relative degree of “knowledge, skills [and] experience” that the firm possessed prior to membership being granted, we considered that the ad exaggerated the level of knowledge, skills and experience possessed by a CQS-accredited firm and its staff, and the extent of the checks that a firm had to undergo to receive its accreditation.

There was other evidence of the weakness of the regime, between 2014 and 2016, 291 out of 293 applications were approved. And the number of site visits is low: “no more than twelve firms had been visited, and two firms had had their membership revoked, between 2012 and 2016.  In the majority of years, no on-site visits had been undertaken.” The origin of the complaint is an interesting further indication of the capacity of the advert to mislead: it came from a solicitor, “who understood that the requirements to join the scheme did not involve any assessment of applicants’ expertise or quality of service.”

You can get a sense of how important the scheme was to the Law Society by a quick google of the Law Society’s Gazette’s stories on the subject. It shows the Law Society regularly exhorting conveyancers to get into the scheme, particularly to protect themselves against expulsion from bank panels. If the Law Society made substantial money from this then there is the smell too of conflict of interest between it and its compelled membership, but I want to emphasise a different point. The scheme, its genesis and execution, will have involved solicitors working for or with the Law Society. Did they knowingly or recklessly mislead would-be clients about the scheme? Did they knowingly or recklessly mislead their members prior to them joining? Unlike the Bar’s code, the Solicitors’ Code does not specifically require that solicitors refrain from misleading anyone other than the court, but most solicitors I speak to when I raise this lacuna point out that knowingly or recklessly misleading anyone in a professional context would be a clear breach of their obligation to behave with integrity.

To be clear on my own position, the ASA decision is one that you could argue with. The Law Society and those involved have a decent case to make that the advert was not misleading, even if the ASA disagrees (the decision itself was a reversal of a previous decision not to uphold the complaint, so one might surmise it was a finely balanced one tipped over by the knowledge about failure and inspection rates). I think they would be wrong on the facts as we know them, but it is not me who judges, and we do not know which individuals were involved in the advert. It is the SRA and ultimately – should it be referred to them – the SDT who adjudicate such things. It is interesting, in that light, that an SRA Board member introduces his SRA biog with the words, “Paul Marsh is a former Law Society President who introduced the Conveyancing Quality Scheme.” He may or may not have had anything to do with how the scheme was advertised. This is something which should be investigated.

Now, putting that to one side, a Law Society President brings with them a certain amount of experience, some of it useful, which one should be respectful of and could be useful to a Board. Others have that experience though. And there is something of a question in the mind of outsiders who wonder about the independence of the SRA and see a Law Society President sitting on their Board. Other appointments would be more appropriate, I would argue. The Legal Services Board need to take a long hard look at this.

The, perhaps whimsical, idea that the SRA might refer the ASA case to the SRA, got me thinking about the SDT (chaired by another Law Society President, just count your lucky stars it’s Ed Nally and not some of the other Presidents of his era), partly because the news broke of Clifford Chance’s travails before the SDT. A partner of theirs is appearing before them for the Excalibur case (see old blogs on this here, here and here). It is not clear to me whether the firm itself is also being prosecuted but the SDT’s order of business implies it is.

Now the point I want to make is not about that case, but about the Leigh Day case. Given the sensitivities around the Leigh Day case it strikes me as surprising that the Tribunal chair in the Leigh Day case should hail from a firm who is themselves likely to be under scrutiny in the not too distant future. I do not doubt the propriety of the Chair in the Leigh Day case for a moment, but one has to wonder at him being put in a position where he tries a leading case, the most sensitive of matters before the Tribunal that most can recall, and where the panel is invited to hear significant criticism of the SRA, whilst his own firm is engaged in what is effectively litigation with that very body. My anxiety would remain even if, as I would expect, he excluded himself from any detailed knowledge of the Excalibur case.

I do not think it is a view too much informed by hindsight that I question the decision to allocate and take the case. This is the kind of decision making which gets the profession into difficulties. It is the reason why greater independence was a feature of the Legal Services Act. And it is a reminder that independence is unfinished business.

 

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