The dual role: before and after

As many readers will be aware, there have been murmurings in recent years regarding the ability of the Law Society of Scotland to retain its dual purpose regulatory and representative role. This was discussed during the 2010 Scottish legislative changes; however, despite some consumer lobby pressure, the Scottish Government decided at that time that it would be too bureaucratic and expensive to replicate the English Legal Services Board structure.

Furthermore, it was deemed unnecessary to divide the Society’s regulatory and representative functions provided they were more clearly separated from one another (as has been implemented via the semi-autonomous Regulatory Committee). There was also a referendum of Society members which, despite a vocal minority for change, resulted in an 80%+ vote for the status quo.

That all said, another review of legal regulation in Scotland (report due next year) is underway. This, coupled with a desire for other changes in the role of the Society, makes it an opportune time to consider the issue of the Society’s dual function once again and to take a look at how a broadly similar, yet unrelated, body of professionals is regulated.

Patent and trade mark attorneys follow a very different route to qualification and are also regulated very differently than lawyers. Whilst this has always been the case, the particular regulating bodies governing the work carried out by patent and trade mark attorneys have undergone some relatively seismic changes over the last few years. These changes have primarily been focused on a public/governmental desire to move the legal, and other sectors, away from the old somewhat “self-regulating” bodies to more modern, “independent” regulating bodies.

These changes took place seven years ago for patent and trade mark attorneys regardless of practising jurisdiction within the UK; however, if similar changes were to transpire in the wider Scottish legal sector, some of the knock-on effects which patent and trade mark attorneys have already experienced over the last seven years might be of interest in the discussions surrounding regulatory change.

The changes

Prior to 2010 patent attorneys were regulated by the Chartered Institute of Patent Attorneys (CIPA), and registered trade mark attorneys were regulated by the Institute of Trade Mark Attorneys (ITMA). The boards of those bodies mainly constituted patent or trade mark attorneys. Those bodies also represented patent and trade mark attorneys. Hence, they constituted “dual-purpose” (or more loosely “self-regulating”) bodies. However, following the 2004 Clementi Review, in order to separate their regulatory functions from their representational functions (as the Legal Services Act 2007 required them to do), in 2010 they each set up a regulation board (a Patent Attorney Regulation Board and a Trade Mark Attorney Regulation Board) which, as far as possible, acts and takes decisions together as the Intellectual Property Regulation Board (IPREG). The majority of IPREG’s members are not patent or trade mark attorneys and furthermore, since IPREG is separated from the representational parts of CIPA/ITMA and is part of the wider Legal Services Board, it is (rightly or wrongly) considered to be more independent than the old guard.

Practical effect of the changes

As one might expect, in the initial days and months of the switchover from CIPA regulation to IPREG regulation, little changed from the practising attorney’s perspective. Indeed, for many it was mainly a case of changing email footers, websites, terms of business etc to replace “CIPA” or “ITMA” with “IPREG” when referring to the respective regulators. However, gradually some more significant changes subtly began to surface.

For instance, initially there was a lack of clarity (at both sides) for the practitioner with regard to whom queries on conduct, regulation, ethics etc should be directed. Over time it became clear that all such queries would be handled by IPREG rather than by CIPA. Unsurprisingly, this then gradually led to a need for CIPA to redefine itself, since its previous core raison d’être had apparently been removed. Indeed, this has seen CIPA move towards being more of a training and education provider, and representative body which campaigns and lobbies on behalf of its members.

Perhaps predictably, some patent attorneys have therefore queried the ongoing and future value in continuing as members of CIPA under this modern regulatory framework. This is something which the Law Society of Scotland might also expect if any equivalent changes were to occur. Personally, this author attributes a lot of value to being part of such a historic, well run and well respected organisation as CIPA and expects no difference for Law Society of Scotland members. However, there is no doubt that some members do see CIPA as being less important and valued than it used to be in view of the fact that its regulatory role has been removed – a point which is typically aired when it comes to paying each annual member's subscription fee!

Could the Society be in for similar challenges?

Of course, there may be no change to the Society’s dual role at all in the near future; however, that may be dependent on various stakeholder views, and those views should be formed with some understanding of the repercussions of such changes. One might expect many lawyers to take a sceptical and concerned view about any such changes to regulation (and indeed I question whether the public is any better served by the patent and trade mark attorney profession as a result of the shift from CIPA to IPREG regulation); however, from my experience, that may not be wholly justified.

Turning to the nature of the regulating function itself, one point which many patent and trade mark attorneys feared during the proposed shift from self-regulation to independent regulation was the perceived higher risk that “lay people” outside of the profession might not be so knowledgeable and understanding of “why patent and trade mark attorneys do things the way they do” and, as a result, might administer harsher criticism or penalties following any complaints by those referring matters to IPREG as regulators. However, anecdotally at least, this does not appear to have been an issue at all. Indeed, to the contrary, these changes have seen an increase in the quantity and clarity of guidance on certain practice points, e.g. by way of IPREG’s code of conduct. Furthermore, there have been beneficial practical improvements in, for example an improved website for patent and trade mark attorney CPD reporting requirements etc.

End result

There is no doubt that the changes in regulation for patent and trade mark attorneys over the last seven years have been significant and have required CIPA and ITMA to redefine their roles comprehensively. This is something which the Law Society of Scotland might therefore expect if any such regulatory changes were to arise in the wider Scottish legal sector; however, in that event, some comfort could perhaps be taken from the fact that the changes do not seem to have caused significant operational issues for the practitioner or for the end client, and might be limited to such redefinition of roles for the Society per se rather than constituting a seismic shift in the degree and extent of overall regulation for its members or end clients.