Unreflective consumer fundamentalism
In 2010 Lord Neuberger delivered a speech to the 25th Annual Bar Conference entitled ‘The tyranny of the consumer or the rule of law’. The speech heralded the alleged birth of a new breed, that of the “unreflective consumer fundamentalists”.
This phrase resonated with the Consumer Panel at the time and has stayed with me ever since. And now it’s back. Speaking to the Association of Liberal Lawyers in recent weeks Lord Neuberger warns that the “the legal profession must also remain independent of, let alone transform into, a system of unreflective consumer fundamentalism”. In warning about the risks of the introduction of ABSs he continues “any future developments …must be shaped by strict adherence to high professional and ethical standards” and “the public interest must always take precedence over, and indeed must remain beyond the reach of, the unyielding tentacles of self interest”.
Exactly who are these unreflective consumer fundamentalists and do they really pose such a risk to the future of legal services?
Lord Neuberger is right to highlight that changes to the legal landscape pose risks as well as opportunities. He notes the risks around profit being put before need, the importance of the quality of advocacy and the opportunities around greater use of technology. These are precisely the risks that regulation needs to address and the opportunities that regulation needs to enable. Nobody is disagreeing with this. But what I’m less clear about is how the law must not transform into a “system of unreflective consumer fundamentalism”.
The Panel for one thinks about a wide range of issues when trying to interpret where the consumer interest lies on any issue. This includes core issues such as access to justice and fairness, as well as service features that lie at the heart of the client-professional relationship: ensuring consumers receive clear and accurate information, clear pricing structures, access to high quality services delivered by trained professionals, access to redress if something goes wrong. Doing these things well is core to professionalism. It also goes to the heart of restoring confidence in a profession which only 43% of the public trusts to tell the truth.
I would argue that the clash of values which seem to lie at the heart of his concerns are more perceived than real. The standard portrayal of the risks of consumers being driven by price above all else is not a picture reinforced by the Panel’s research. Of course, getting a good price is important to consumers, but our data shows that reputation, specialism and location are just as important factors influencing choice of lawyer. In our recent consumer research on risk, people rejected outright the suggestion that some existing protections could be removed in return for lower fees. People feel very vulnerable when using legal services and are acutely conscious of the consequences of making mistakes, so they select lawyers very differently to how they would choose, for example, an energy tariff.
The role of the consumer in regulation across all sectors has changed and there is no going back from this. This is also true of legal services. Some commentators may argue that legal services are a unique market and there is no doubt that consumers also see legal services as a special case. Other commentators might resist the labelling of legal services as a market at all. But what’s clear is that consumers will not become more deferential to professionals, as they were in the past, and there is no point in hankering after a return to some golden age. In reality we are still a long way off having the empowered and well informed consumers that are becoming a key feature of other professional services markets. The consumers who are able to shop around, who are able to easily compare providers, and who have confidence in making a complaint.
We have to avoid creating an artificial conflict between the consumer interest and the public interest. There is no irreconcilable tension between consumerism and professionalism and there is no risk of the legal market being transformed into a mythical and non-existent system of unreflective consumer fundamentalism. What there is, and what there must be, is a shared interest in ensuring consumers can access ethical and high quality advice from across a diverse legal services market.