I don’t really do cutting edge when it comes to reporting legal developments. Sometimes there is a story worth running on the day – one software supplier buys another, or an important judgment comes out. Occasionally I get a tip-off and have the story ready to publish as it happens, like the Ofsted one a few days ago. For the most part, however, I am content to let things happen, assimilate the comments of others, dig out some original sources, and try and fit it all into a context relevant to case management or e-discovery.
One development which has been on my To Do list for a while is the growing possibility that barristers might overhaul solicitors in getting on top of electronic disclosure. It has long been foreseeable that clients would begin to challenge the historic model for handling litigation documents; that model involves the solicitors requiring that the clients hand over their documents, which the solicitors then search through both for evidence relevant to the issues and for disclosure purposes. The conventional solicitor approach to this is to throw waves of assistants at the problem, like Douglas Haig at the Somme, whilst lobbing bills at the client. That approach is dying, mown down by the twin enfilade of client resistance and the growing realisation (elegantly expressed by Lord Justice Jackson) that “proportionate” and “necessary” do not mean the same thing when you come to consider questions of costs.
I have suggested more than once that the most efficient model places the search function with specialists in search, with lawyers contributing to the search parameters and reviewing the results rather than running the whole show. You do not need to be a big firm with rows of assistants on hand: a small firm might ally with a litigation search provider, dividing the elements of the disclosure function where they can be done most efficiently; a team of barristers might do it just as well – or even better.
The brake on this has been partly one of attitude and partly the result of formal restraints on what barristers are allowed to do in terms of business relationships. Barristers have felt themselves rather above managing disclosure (which is why we have benches full of judges who have not a clue what is involved in it) and have thought of it as mere paper-shuffling – solicitors’ work, allowing the soi-disant senior branch of the profession to think elevated thoughts and argue them eloquently in court in wig and gown.
That is changing. Barristers have turned into businesses and it would not be long, I thought, before we would see them setting up businesses with niche skills beyond the traditional subject-matter divisions. One final set of constraints lay in some of the formal restrictions imposed on barristers which simultaneously made them a closed shop and prevented them from treading too closely on solicitors’ patches. There has been enough happening on my own patch recently, and I thought a quiet Saturday night would be a good time to catch up with what both sides of the profession have been doing.
The result is my headline. The LSB is the Legal Services Board and the BSB is the Bar Standards Board. An ABS is an Alternative Business Structure and an LDP is a Legal Disciplinary Practice. The LSA is the Legal Services Act 2007. The headline therefore means that the Legal Services Board has approved the Bar Standards Board’s recommendations for Alternative Business Structures and Legal Disciplinary Practices under the Legal Services Act. Missing from this acronym hell is the SRA (Solicitors Regulation Authority). One article I read said that “The regulatory structure will see the LSB act as an overarching watchdog for the Solicitors Regulation Authority (SRA) and the Bar Standards Board. While the SRA is likely to take responsibility for ABSs it is possible that further regulators could be introduced”, a situation which the Master of the Rolls described as a “regulatory maze”, adding: “We’ve moved from simple self-regulation by representative bodies to a more detailed, more complex, and rather more expensive system”. Meanwhile, in Scotland, the LSS (Law Society of Scotland) has held an SGM (Special General Meeting) to vote on ABSs after the SLAS (Scottish Law Agents Society) tried to force the LSS to reverse its policy of support for ABSs. The proposed further vote has been likened to the way that Florida elects the President or the EU gets its referenda through – if at first you don’t succeed, keep trying till you get the right answer. I suspect that this is unfair but, frankly, who cares after all that?
I have decided on your behalf and mine that any further attempt to understand all this is a waste of our valuable time. Multiple tiers of regulation is the curse of so many organisations – in English education and child protection, for example, regulation seems to have become an alternative to the primary objective rather than a means of achieving it, and every profession has people who seem better at (or, at least, more interested in) telling others what to do than they ever were at just doing the job. I had hoped that the 300 or more vacancies in Parliament might mop up some of them so that the rest could get on with their work.
When the dust has settled, we will find that, notwithstanding all the new multiple tiers of regulatory authorities, barristers will be more free than they have been to compete with solicitors. There will be e-Disclosure specialists, happy to work with solicitors and with search providers – and probably directly with clients. They will not be stuck with the solicitors’ historic idea that you send for all the documents and proceed with the procedures, but will recognise two things – that the clients know more about their documents than anyone else, and that disclosure is a search function with legal input not a legal-procedural function with computer add-ons. Gradually (or perhaps not so gradually), the law firm behemoth will become a bit-player in this part of the litigation process, kept in the loop because they can win clients, manage the third-party contracts, fill in the court forms and handle the invoicing. But since the proposed new powers of barristers include investigating and collecting evidence and witness statements, disclosure is not the only part of the process which solicitors stand to lose.
There is room here for the smaller, more agile firm of solicitors of the kind referred to above, happy to be a part of a distributed process, or perhaps (the better ones) to manage it. They will be on top of the rules and the case law, able to distinguish between the process and its objectives and between what matters and what does not, and authoritative in argument with opponents and the court as to what is the right course.
Key to all this is the role of the litigation support businesses – the software companies, general support providers and consultants who will just get on with the data collection, the filtering and the hosting at the direction of the lawyers. The ability to give that direction and to manage the projects is the skill which will identify the survivors. They all, solicitors and barristers, start on a level pitch as at now. We may not yet have come to the fusion of the professions which Lord Neuberger anticipates (I would guess with some dismay), but the traditional division of roles is about to become irrelevant in respect of disclosure.