'A discourse on the first principle of regulation for lawyers'

An interview with

Iain Miller

Commercial Dispute Resolution Partner

Iain Miller is at the height of his profession. He was recognised by The Lawyer magazine in its 'Hot 100 list for 2013'. He has been ranked as a Star Individual in the 'Chambers & Partners Guide to the UK' in the field of professional discipline and as a leading individual in the Legal 500 in the field of professional discipline. He has acted for the Solicitors Regulation Authority and its predecessors since 1994, and had also acted for the Bar Standard Board, the Architects Registration Board, the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman. His publications include the Alternative Business Structures, A Compliance Guide.   

TheLawMap: What are the required qualities to be a successful commercial dispute resolution lawyer?

The great thing about litigation is that it requires so many different skill sets.  Technical knowledge of the law and procedure is a given.  I think what distinguishes those that are really good is the ability to think creatively about how best to solve the dispute in their client's best interest.  That normally does not involve attempting to pummel the other side into submission by taking every point.  The best cases are those where all the parties work together to narrow the issues and try to find a satisfactory outcome.  However, those cases are depressingly rare and there is therefore  clearly a need to be level headed as adversarial litigation does involve some annoying and difficult moments.  Finally, as with everything else in life a sense of humour is invaluable.

TheLawMap: Lumsdon & Ors [2014] EWHC 28, unsuccessfully challenged Quality Assurance Scheme for Advocates (‘QASA’). What are the main challenges to QASA?

QASA seeks to address the quality of advocacy in the criminal courts.  Whilst most advocates are of a high quality there seems to be a widespread concern that some are not.  Few things are more important than ensuring competent representation in a criminal trial.  The scheme of QASA is to assess advocates as competent at 4 different levels which reflect the complexity of the trial.  To be assessed as competent at a particular level an advocate needs to nominate up to 3 hearings and the judge will complete an assessment form which will be sent to the advocate's regulator.  The scheme was developed jointly by the Solicitors Regulation Authority, Bar Standards Board and Ilex Professional Services and approved by the overarching regulator, the Legal Services Board.   The judicial review challenge raised a number of grounds.  These primarily centred on whether the role of the judge in completing the assessment affected the fairness of the trial process because, for example, the advocate may be inhibited in taking points on behalf of his or her client that offended the judge.  Issues were also raised as to whether the scheme complied with the Provision of Services Regulations and whether the appeal process from an assessment was fair.  The application was dismissed in both the Divisional Court and the Court of Appeal.  The Claimants have now sought permission to appeal to the Supreme Court.  My firm acts for the Bar Standards Board in the case.

TheLawMap: Legal Services Act 2007 created Legal Service Board (LSB) an independent body responsible for overseeing the regulation of lawyers in England and Wales. You have represented regulatory bodies SRA, BSB and others, do you think LSB is breaking down regulatory barriers to competition?
The biggest impact of the LSB is that it started from an assumption that legal regulation was no different from other areas of regulation and that many of the principles of market regulation could be equally applied in the context of law.  The main strand of work by the LSB has been directed at removing barriers to competition.  This is based on the principal that if competition increases then the accessibility of legal services will increase and their cost will go down.  It has been fascinating to witness this thinking becoming reflected in the approach of the front line regulators.  However, the changes driven by the LSB have also exposed the structural limitations of the statutory scheme set up by the Legal Services Act.  The general consensus is that the scheme needs to be amended but this will involve primary legislation which may be difficult in the near future.
TheLawMap: You are the coauthor of the Alternative Business Structures published by the Law Society publications. Since October 2011, 350+ licences have been issued by the SRA and the CLC. Early this month EY (the third of the ‘big four’ accountancy firms) was granted an ABS licence by the SRA. In your opinion, what would be the principal benefit of ABS to the legal profession in the long term?

The introduction of external legal ownership of those who provided regulated legal services will radically change the market.  It means that it is no longer necessary to go to a law firm to get legal services.  The big 4 accountancy firms understand this and although they seem to have different approaches, they realise that legal services can be bolted onto the business services they already provide.  Similar things are happening in the personal injury market where insurers are integrating legal services with their other businesses.  My view is that within 10 years most legal services will be delivered as part of another service.  For law firms this means that they need to think about how they need to adapt to this change.  There will always be a place for specialist legal advice by law firms or by the bar but the remaining firms are likely to be less highly leveraged and more specialist.

TheLawMap: Who or what inspired you to be a lawyer?

I would like to say that I was inspired by a particular episode of Petrocelli (if you are under 45 you may need to look it up!) but the sad reality is that doing a law degree seemed a useful thing to do and that just led me on to becoming a solicitor.  However, I have been very lucky to work with a number of brilliant people during my career who have inspired me and shown me what excellence looks like.  These include John Fordham at Stephenson Harwood, Geoff Prevett at Eversheds, Nick Wright at Wright Son & Pepper and Tim Dutton QC at Fountain Court.  I am also very fortunate that I now work with a team of solicitors who are way more talented than I am.  It is always better to be lucky than good.

TheLawMap: If you could change something within the legal profession, what would it be?

I think we confuse words for value.  Skeleton arguments, witness statements and pleading seem to be getting longer and longer.  The ability to make the complicated simple is what every lawyer should aspire to.

With special thanks to Iain Miller for his valuable time. He can be followed on Twitter and interacted with via Linkedin.