Should Will writing be regulated?
The vexed question of whether or not Will drafting should be regulated has dogged the legal world for years. However, as we await deliberations on the regulation of solicitors by Lord Hunt on behalf of the Law Society and the decision of the newly created Legal Services Board on which legal services should be regulated and which need not, it seems timely to re-visit this question. The overwhelming majority of those responding to the poll survey on this website were in favour of regulation.
Solicitors as Will draftsmen
We must distinguish between a solicitor’s duty of care owed to his client (and, in Will making, to those for whom an act of negligence will also result in a foreseeable loss) and client care. A breach of the duty of care will result in an action for negligence which is “overseen” by the Courts. Client care is partly good practice and also compliance with the profession’s practice rules. Any breach of our client care rules is “policed” by the Solicitors Regulation Authority and the Legal Complaints Service and can result in reduced fees, orders to pay compensation and even removal from the roll for unprofessional conduct.
Thus, whilst we can as a self-regulating profession choose to alter our practice rules and how they are implemented, we cannot alter our duty of care imposed under the law. This would probably require now an Act of Parliament.
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To compete with the untrained and unregulated offerings lawyers have been told to commoditise their practices; engage in the use of technology; write Wills over the internet and generally lower the cost of providing Wills. Can we do this?
The non-regulated sector
The untrained and unregulated Will writers operate in a diverse and fragmented low-cost market. If a claim is made for negligent service this type of business is probably uninsured and can be closed down without any impact on the service provider. Without the service being regulated there is no regulatory body whose code of conduct applies and which could be withdrawn from the provider making it impossible for them to continue to work in this field.
Regulation for all!
A regulated Will drafting service will presumably require, as now, its service providers to be insured and properly trained. It would have some kind of complaints handing service and regulatory code by which members could be disciplined and ultimately have their livelihood removed for serious breaches. This would give recognition to those providers with whom solicitors compete who are willing to meet the same standards. Can the standard be lowered from that which applies to solicitors without damaging the product?
Solicitors know from experience that the negligence tail on incorrectly drafted Wills is long – some 20 years – so the potential costs of providing a regulated service is well known to lawyers. It has to be admitted that the cost of regulation is off putting to new entrants to any business but sometimes the public interest is more important than consumerism.
Protecting the unwary and the vulnerable
It is not protectionism to want to see all providers having to meet some basic standards and to enable the currently heavily regulated solicitor to have the opportunity to offer to some clients an ‘opt out’ of the traditional duty of care so that the sophisticated could purchase a legal service which is not covered by the current requirements of the Solicitor’s Code of Conduct.
Questions for the Legal Services Board
One software firm in offering their system to solicitors makes a distinction between customers and clients and only regards solicitors as having to comply with client care rules at the point the person seeks advice. Will the Board be willing to make this distinction if the “customer” buys the form from a regulated practice even without any further input from the firm?
How can the Legal Services Board address the duty of care in Will drafting to enable all service providers to offer a Will service over the web or remotely or in a more commoditised fashion? A large disclaimer indicating that the Will drafting service would not cover certain situations such as overseas assets or inadequate information might be effective, but surely you cannot disclaim a failure to ascertain undue influence or fraud. Would it be possible for the Legal Services Board in regulating Will drafting to confirm which disclaimers or restricted retainers work?
The danger is that the difficulty of preparing a suitable regulatory framework for all providers and protection for the vulnerable and unsophisticated may result in a decision not to regulate and therefore leave the solicitor in a non-competitive position. We all need to think of ways in which a suitable balance can be achieved to make it possible to regulate fairly.
© Gill Steel, LawSkills Ltd. 2009
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