[author]Zhou Yipei

[content]

Reform of Lawyers' Professional Regulation under "Regulatory Governance"

——An Example of British Practice

 Zhou Yipei, doctor of Fudan Universitiy Law School

Abstract: By analysing the current system of professional regulation of lawyers in China, it can be found that the self-regulation of China's lawyers association fails to play its due role, the boundaries between self-regulation, administrative regulation and judicial regulation are unclear, and the means of regulation is mostly post-event discipline of behaviour. The self-regulation of professionalism has encountered the crisis of commercialisation and globalisation in western countries, and the new concept of "regulatory governance" has been introduced into the professional regulation of lawyers. In British practice, the overall regulatory framework adopts a "meta-regulation" approach, and the reform of the Solicitors Regulation Authority (SRA) has shifted the scope of professional ethical regulation from rules of behaviour to a combination of principles and professional standards, and has used pre-event and mid-event risk compliance communication to replace post-event disciplinary measures. China should absorb the above transformation of "regulatory governance" concept, combine the professionalism of self-regulation and the original public regulation, improve the scope of regulation of the lawyers association, administrative organs and the court, reform the existing law enforcement special inspections, to achieve the interactive regulation between profession and the state, society and the market.

Keywords: lawyer profession; professionalism; regulation; governance

Introduce:

After more than 30 years of development, lawyers have formed a large group in China, especially since the legal professional qualification examination reform in 2016, which has further relaxed the threshold of lawyers' practice. The Outline of Comprehensively Deepening Judicial Administrative Reform (2018-2022) issued by the Ministry of Justice in 2018 mentions that by 2022, the total number of lawyers nationwide will reach 620,000, while in 2016 the total number of lawyers per 10,000 people only just exceeded 300,000. The total number of lawyers nationwide reached 620,000, with 4.2 lawyers per 10,000 people, while in 2016 the total number of lawyers nationwide only just exceeded 300,000. With the increase in the number of lawyers and the deepening of reforms, the regulation of the legal profession, especially lawyers, is also undergoing a quiet transformation.

Nationalistic scholars dominated the early discourse on the status quo of the regulation of the legal profession in China. Liu Sida, for example, based on his field research, found that China's legal services were highly fragmented, and that this phenomenon was rooted in the fragmentation of the national regulatory system that governed these legal services, which led to competing standards of entry into the profession. As a result of the ongoing reform and opening up and the strong call for professionalism in the legal profession, a legal professional community is gradually taking shape. In recent years, some scholars have begun to study the influence of the external environment of the state, market and society on the professional group of lawyers, as well as the self-management within the professional community; for example, Cheng Jinhua and Li Xueyao believe that the development of lawyers' profession has already formed the structural constraints between the state, the market, the society and the lawyer's prefession, and that the regulations of lawyers' profession have formed the "dual regulation" combining the administrative regulation and the profession's self-regulation, which is also known as "double combination" management system.

Since the 1960s, the lawyers' profession in Western countries has also changed dramatically, with the traditional image of the lawyer as a careful, objective and independent servant of justice with a spirit of public service disappearing, to be replaced by the image of the competitive, adversarial, self-interested lawyer, who now pursues self-interest by any means necessary, and who no longer cares about professional ethics and common law traditions. Many attribute the crisis to the prevalence of legal commercialism, a professional culture guiding an adversarial system of sporting nature and a system of self-regulation that excludes the public regulation, which has led lawyers to serve only the rich and the big corporations and detriment of the majority (the public interest). As economists have pointed out, the commercialisation of the lawyers' profession has created  defects of information asymmetries, free-riding and externalities in the market of legal services, which have made lawyers blamed by consumers, and if regulation is not effective in preventing or remedying lawyers' breaches of the law for their clients and for the legal system, regulation will fail, and the profession is facing a structural crisis that the regulatory system needs to be reformed to ensure a balance between professional independence and accountability.

At the same time, the concept of regulation in Western countries is also quietly changing. A new concept of regulatory governance has been introduced into the regulation lawyers' profession: the state is no longer the single centre of governance, governance includes a network of interactions formed by multiple actors such as governments, non-governmental institutions and even the targets of governance themselves, and thus regulatory governance is regarded as a way of promoting the realisation of regulatory goals through a wider range of regulatory interactions among multiple regulatory actors, in which the law as a means of regulation no longer functions in a direct command-control manner, but rather as an alternative means aimed at constructing and procedurally using extensive consultation and reflection. Traditionally, regulation has generally taken a command-control approach, with the regulator setting a mandatory, deterrent goal of behaviour or outcomes that must be complied with or prohibited by the target of the regulation, and the regulator has tended to be government; whereas in the case of the lawyers' profession, due to the highly specialised nature of the profession, it tends to take the form of self-regulation by itself or by its trade associations, which has a professional ethical core on specific matters. Both models have their own shortcomings, and a kind of co-operative regulation between the two - "meta-regulation" has been applied, the regulator does not directly regulate the behaviour of enterprises or organisations, instead it make them reflect on their own management system to carry out the regulation, and to adopt a more consultative and responsive approach, focusing on the uncertain risks faced by the profession. The UK's 2007 changes to the Legal Services Act significantly reformed the traditional regulatory model and incorporated this concept of regulatory governance, which the author will review later.

This paper attempts to study China's current lawyers industry regulation mode by empirical research, to point out the problems existing in the current lawyers' profession regulation, to combine the innovation of the concept of regulation and draw on the reform of western countries for the regulation of legal services, and to finally put forward the direction and the way forward of China's lawyers professional regulation reform.

1.Analysis of the current status of China’s lawyers’ profession regulation

This part of the empirical research on the regulation of the lawyers' profession mainly examines three aspects: first, the implementation of self-regulation by lawyers associations around the country in recent years, according to The Notice of Strengthening the Handling of Complaints about Lawyers' Illegal and Unlawful Acts issued by the Ministry of Justice in 2017 (hereinafter referred to as Complaints Provisions), the first complaint against law firms and lawyers , in principle, accepted by the lawyers associations. Second, the regulation of the lawyers' profession by the state administrative organs, which is mainly reflected in administrative penalties, mostly by the judicial administrative organs in accordance with the relevant provisions of the Lawyers Law on the management of lawyers and law firms within their jurisdictions. Third, the judicial review of the social complaint decision, that is, the complainant is not satisfied with the judicial and administrative organs' decisions of the lawyers' or law firms' behaviour that they think are illegal and therefore file an administrative lawsuit to request the people's court to review the decision, requesting for judicial and administrative organs re-dealing with the request, this kind of indirect regulation is very characteristic of our country. The above three aspects constitute the main mode of lawyers' professional regulation at this stage in China, this part will analyse the relationship, scope, means and problems of the three types of regulation.

1.1the self-regulation of the lawyers association

The lawyers association is the precondition of legal profession community autonomy, as well as the feature of legal professionalism. To become an effective internal autonomy organization, the lawyers association and so on need to have the ability to formulate profession ethic regulation and the admission standard of new members, to decide issues like the penalty for behaviour against the profession ethic. In accordance with the provisions of Article 45 and Article 46, Paragraph 1, Item 6 of the Lawyers Law, lawyers and law firms shall join the local lawyers association where they are located and be members of the National Lawyers Association at the same time; lawyers associations may reward and punish lawyers and law firms.

In the process of reviewing, the author found that local lawyers associations did not make a complete public announcement of the association's disciplinary information, and most provincial and municipal lawyers associations did not establish a system for publishing disciplinary information. In the context of the construction of the national credit system, many regional lawyers associations have established integrity files for lawyers and law firms, but the China Lawyers Association and local lawyers associations have not yet established a complete integrity platform or can only obtain disciplinary information by inquiring about specific lawyers and law firms. On the whole, the official website of the Zhejiang Provincial Lawyers Association has published relatively complete information on the punishment information at the same level and the districts under its jurisdiction, so the author chose it as the object of self-regulation of the industry association for research.

The official website of the Zhejiang Provincial Lawyers Association published 117 disciplinary decisions made by the lawyers association at the same or lower level from October 19, 2015 to January 3, 2020, of which 15 were sanctioned by the provincial lawyers association and 102 were sanctioned by the lawyers association of districted cities and Yiwu City; 5 were for law firms and 112 were for lawyers.

1.1.1 Source of Sanctions

As shown in Fig. 1, from the source of punishment, most of the disciplinary actions of the Lawer's Associations are made in accordance with the provisions of Article 7, paragraph 2 of the "Rules for Punishment of Violations by Members of Lawyers' Associations (for Trial Implementation)" (hereinafter referred to as the "Rules for Punishment"), and the disciplinary decisions of suspending the rights of the members of the Association for a corresponding period of time are made directly according to the administrative punishment of suspending the business for rectification or stopping the practice of law; in the decisions on cancellation of the qualification of the members of the Provincial Lawyers' Associations, all of them are made directly because the disciplined person has had his or her practice certificate revoked by the judicial administrative department. In addition, it can also be found that cases investigated and dealt with by this level of lawyers are less serious, and rarely apply the punishment of suspending the rights of members above, the only exception is the Wenzhou Municipal Lawyers' Association, whose investigation and treatment of this level accounts for a larger proportion of all municipal lawyers' associations, and the source of cases applying the suspension of the rights of members and other association disciplinary actions is often the Discipline Inspection Commission, the court, the Procuratorate and the detention centre and other organs and departments, but this is also a form of self-regulation of the lawyers' associations.

1.1.2. Violations

As shown in Fig. 2, private acceptance of commissions and fees, meeting violations, providing false materials and intentional crimes are the violations that are more numerous in practice; of the 13 disciplinary letters involving intentional crimes, 4 involved professional activity-based crimes, and the largest number of intentional crimes related to non-professional activities was dangerous driving (5), but the Rules for Punishment do not include intentional crimes as a sanctioned act, and therefore this part of the behaviour is disposed of directly on the basis of judicial administration penalties.

1.1.3. Means of Disposition

As shown in Fig. 3, from the point of view of the means of punishment, most of the disciplinary actions of the Lawyers' Associations are focused on the suspension of members' rights, occupying 71 per cent, which is basically the same as that shown in the figure above, where most of the disciplinary decisions of the Lawyers' Associations are made on the basis of administrative penalties imposed by the judicial administrative organs. The public condemnation that can only be made by the Lawyers' Associations only occupies 13%, and according to Article 15 of the Rules for Punishment, the disciplinary actions of the Lawyers' Associations include six kinds of admonition, warning, notification of criticism, public condemnation, suspension of member's rights and disqualification of members, but from the information published on the website, there is no information on the disciplinary actions of the first three kinds that have the nature of admonition, and it may be that the degree of offence of these three types of punishment is relatively minor and does not belong to the items that should be made public, but on the whole, this reflects that the self-regulation of the Law Society has not been well used.

1.2 Regulation of the profession of lawyers by the State administrative organs.

Since the 1980s, although China's lawyers have totally seperated from the state administrative system, that is, transforming from the "state's legal workers" to the full market "practitioners providing legal services for the parties", but the state administrative organs for the regulation of the lawyer profession is still playing an important role in guiding, supervising the lawyer profession, the lawyer profession is greatly influenced by the state policy. According to the provisions of Article 4 of the Lawyers Law, the main administrative organ in China for the regulation of lawyers, law firms and lawyers' associations is the judicial administrative department, so the author mainly examines the administrative penalty decision letters made by the judicial administrative organs, and this paper selects 200 administrative penalty decision letters made by judicial administrative departments at all levels published on the official website of the Ministry of Justice from 18 May 2018 to 9 January 2020 as the object of study, which involves 192 lawyers and 8 firms.

1.2.1 Sources of clues for penalties (see Figure 4)

From the viewpoint of the source of the clues of the judicial administrative organs to make punishment, in addition to directly based on the criminal judgement of intentional crimes to make the decision to revoke the licence of the punishment, some of the decision to make punishment did not record the source of the clues of the case, but only record the process of the investigation, the author also included them in the departmental investigation, so it will result in the departmental investigation of a large number of investigations, but the majority of such investigations for the passive acceptance of the complaint and carried out. In terms of other sources, a large number of penalty leads in practice come from public complaints and reports, i.e., the supervision of lawyers and firms by clients or the public. In addition, lawyers' associations and procuratorates, as legal supervisory authorities, also play a role in the source of penalty leads, but not a large one.

1.2.2 violations (see Figure 5)

From the viewpoint of the main violations involved in the decisions on administrative penalties, the violations regulated by the judicial and administrative authorities mainly include private fee charging, intentional crimes, disrupting the order of litigation, unlawful change of domicile, false materials and evidences, improper means of soliciting business, and conflict of interest. Comparing this table with the above mentioned self-regulatory violations of lawyers' associations, the following conclusions can be drawn: (1) the number of private fees and intentional crimes is the highest, both of which are highly prevalent in practice, but intentional crimes are only regulated by the judicial administrative organs; (2) the scope of regulation by the judicial administrative organs is wider than that of the lawyers' associations, such as the change of domicile, litigation proceedings, improper solicitation of business, and conflict of interest, also belongs to the main scope of regulation; (3) for both parties have jurisdiction over the illegal acts, the judicial administrative organs play a leading role, while the lawyers' association for only their own exclusive regulation of the act, and does not play the ability to regulate.

1.2.3. Penalties (see Figure 6)

In terms of the means of punishment, warning (generally accompanied by the requirement of ordering correction) is the most applicable type of punishment, followed by suspension of practice (cessation of practice and suspension for rectification), and the final means of punishment is the revocation of licence, with fines and the confiscation of unlawful proceeds often serving as a concurrent punishment for the above three types of punishment, which is in line with the provisions of the Lawyers Law on punishment. Overall, warning and suspension of practice type of punishment is not a big difference in the number of exemplary, less punitive means of punishment is not more applied; from the application of hearing procedures, in the more punitive penalties are also applied more, but the overall low, the punished person is generally not willing to apply for a hearing, in the larger amount of fines and suspension of punishment is seldom a hearing.

1.3 Judicial review of decisions on social complaints

In China's judicial practice, lawyers or law firms directly to administrative regulatory organs administrative penalties are less litigation, but instead the complaint processing decision of the litigation has become the mainstream. Complaints, as the behaviour of parties whose legitimate rights and interests have been harmed to the relevant state organs to request them to perform their corresponding duties, are the embodiment of citizens' exercise of the right to supervision. In the 2018 Interpretation of the Supreme People's Court on the Application of the Administrative Litigation Law of the People's Republic of China, Article 12(5) states, "A person who has one of the following circumstances is 'interested in the administrative act' as stipulated in Article 25(1) of the Administrative Litigation Law: ...... (e) Complaining to an administrative organ for the purpose of safeguarding one's lawful rights and interests, and the administrative organ with the duty to deal with the complaint makes or fails to make a disposition." In the process of professional regulation of lawyers, the regulation of lawyers' unlawful behaviour by the parties to the case is mainly realised through complaints to lawyers' associations or administrative organs, which is not a kind of direct regulation. There is a great deal of controversy in both theory and practice as to whether a complainant can bring an administrative lawsuit against an administrative organ for mishandling or failing to respond to a complaint, and in the field of the legal profession, whether the parties are permitted to bring an administrative lawsuit against the Judicial Bureau's handling of the matter of the complaint against the lawyer and the firm, as well; a further question is whether the court in turn should engage in a substantive moderation of the content of his or her violation of the law, and whether the court, in the course of its review Will the court interpret the code of professional ethics in the process of review, and what kind of regulatory model does this kind of judicial review based on complaints belong to, and what are its characteristics?

The author searched the website of WKF (on 1 May 2020), using "Lawyers Law" as the search keyword, with the search scope of "full text", the search mode of "routine", the type of case is "administrative", the cause of the case is "administrative penalty" or "administrative reconsideration", the type of instrument is a judgement and a ruling, with the party being the "Judicial Bureau", yielded a total of 299 judgements and 131 rulings. The vast majority of these judgements were in the category of complaints and reports, as well as in other types of cases such as replies to letters and visits, government information disclosure, and essentially complaints and reports; administrative litigation brought by lawyers and their law firms against administrative penalties accounted for less than 20 per cent of the total; complaints by the parties accounted for the main part of the court's review of the decisions of the Bureau of Justice in respect of the lawyers and law firms involved.

1.3.1. Limitations on the conditions for prosecution (source of the case)

Regarding the determination of the actionability of the reply. First of all, it should be noted that the complaint, reconsideration or review to the judicial administrative department against the handling decision of the self-regulatory organisation of the profession, i.e. the Bar Association, is generally an internal supervisory relationship and is not actionable. A minority of the courts held that the reply letter was merely an informative act, that the reply or notification did not have any practical effect, nor did it confer any duties or obligations, that it was not mandatorily binding under administrative law, that it did not fall within the scope of administrative litigation, and that there was no legal basis for the administrative organ to determine that a particular administrative act was justiciable or non-justiciable; the majority of the courts held that such a reply or processing decision was justiciable, and that it could not be denied by the use of letters of response.

On the determination of the plaintiff's standing. If a citizen, legal person or other organisation wishes to bring an administrative lawsuit against a judicial or administrative organ's decision to handle a complaint, it must have the appropriate qualifications as a plaintiff, an "interest" as stipulated in Article 25 of the Administrative Procedure Law. In judicial practice, usually, the judgement of whether the plaintiff qualification depends on the following aspects: (a) whether the law, regulations or rules provide for the right to complain or report; (b) whether the purpose of the right to complain or report is to safeguard the lawful rights and interests of the complainant or the reporter. ...... The appellee is in essence Is the result of the arbitral award did not support its civil claims against ...... will not directly affect the legitimate rights and interests of the appellee. That is to say, such complaints and reports can not be public interest, to maintain the public trust and authority of the government, must be directed at the direct impact, substantial infringement of the rights and interests of the parties, but if not their own legitimate rights and interests, based on a specific principal-agent relationship can also be filed a lawsuit, and the plaintiff must provide prima facie evidence to prove that; there are also the court to determine the qualifications of the plaintiff by drawing on the theory of the norms of protection to require the administrative organ Performance of duties in the litigation, the plaintiff's right of action must be based on the corresponding norms of the right to claim, the "right" should be through the legal norms expressly given to the complainant or the plaintiff. There are two controversies in the application of the above criteria, one is whether the complainant can sue the judicial administrative department for the administrative penalty imposed on his complaint, some courts believe that the purpose of the penalty decision is to regulate lawyers' practice and strengthen the supervision and management of lawyers' practice, not to protect the rights and interests of a specific client, and that the decision on the administrative penalty imposed does not create any rights or duties for the plaintiff; Some courts also think that the competent administrative organ to investigate the legal responsibility of the aggrieved person in accordance with the law of the citizens, legal persons or other organisations can bring administrative litigation according to law, or in a particular case affects the victim's expectation of fairness and justice should also be given the right to sue. Secondly, whether the other party on behalf of the lawyer's decision to request a judicial review, some courts believe that the reported person is not commissioned agent, the lawyer and the complaint reported no commission contract relationship, so there is no lawyer in the performance of the commission contract in the process of infringement of the legitimate rights and interests of the client, the rights and duties of the situation is not affected by the actual; and there are also the court that "the plaintiff, if the plaintiff believes that its agent behaviour If the plaintiff believes that its agent behaviour there are violations of the law, and thus affect the case, has as the case of interested parties to the judicial administrative department, and the complaint results of the right to file a review lawsuit, can not be denied the plaintiff's subjective qualification of the lawsuit".

1.3.2 Content moderation

From the viewpoint of content moderation, most of the reviews are conducted along the four perspectives of whether it belongs to the scope of administrative competence, whether there is a factual finding of a violation of the law, the legal application of the decision, and the legality of the procedure, or focusing on some of these controversies. In judicial practice, the controversy over content moderation mainly focuses on the review of the terms of reference and factual findings of the subject of the regulation.

For the administrative terms of reference, that is, the professional regulation of lawyers' competence, such as criminal acts, the commission of disputes over the contract of agency, etc. obviously does not belong to the judicial administrative organs, need to pay attention to is the division of labour between the different regulatory organs, such as not wearing the robe, not wearing the emblem of the law, and agency of the general negligence belongs to the scope of the regulation of the lawyers' association; For the bankruptcy case of the judicial administrative organs and the people's court regulation of the scope, some courts think that "the scope of the judicial administrative organs and the people's court". As for the scope of regulation by judicial administrative organs and people's courts in bankruptcy cases, some courts held that "whether staying as a member of the liquidation team of a boutique exhibition company constitutes 'inter-firm practice' and whether there is any unlawful behaviour during the period ...... can be reflected to the relevant people's courts rather than directly by way of complaint or report. requesting the administrative organs to perform their regulatory duties to investigate and deal with"; however, some courts have rejected this view: "The issue of violating the Enterprise Bankruptcy Law has also been reflected in the violation of professional ethics and practice discipline by Mingquan Firm and its lawyers. The Response to Complaints of ......, however, states that 'we will deal with the matter according to the conclusions of the People's Court and then according to the relevant provisions', clearly confusing the fulfilment of the statutory duty of the judicial administrative organ to investigate and deal with complaints with the People's Court's guidance and supervision of the administrators' operations in the adjudication of bankruptcy cases. guidance and supervision."

With respect to the review of factual elements, most courts conducted a strict review of whether the Respondent had acted in violation of the law and provided explanations, with only a few judgements adopting a formal review. As far as the substantive review is concerned, firstly, the act complained of must be in the course of the lawyer's practice, not other practices such as acting as an arbitrator; secondly, the court examines whether the specific act is unlawful and gives an explanation of the professional norms, and some typical examples are selected in the table below.

In addition, in the process of determining the fact of false evidence in the course of litigation and disruption of litigation, court order and other acts within the scope of the regulation, the court will often think that "the arbitrator and the judge in the relevant litigation case shall have the right to judge whether or not the statements made by the lawyer in arbitration, litigation and the evidence submitted are false, the authority of the lawyer shall be determined by the arbitrator and the judge in the relevant litigation case. The question of the competence of lawyers to represent them shall also be examined by the arbitrators and judges in the relevant litigation cases" and "Whether or not there is any interference with the conduct of the litigation or disruption of the order of the court shall, in accordance with the law, be determined by the people's court, which shall take the appropriate coercive measures, and it is not within the competence of the defendant. In their replies to a number of cases, the judicial administrative organs also directly relied on the judgement of the case in question as the basis for their findings of fact.

1.4 Existing problems of professional regulation of lawyers

From the above chart and analysis can be concluded, China's current lawyer professional regulation system still exists a big problem.

First of all, in the professionalism as the core of the lawyers association self-regulation practice, this self-regulation does not play a good role, especially in zhejiang province as a more economically developed provinces. This is manifested in: in the disciplinary source of lawyers associations around the disciplinary action most are directly based on the judicial administrative department of the administrative punishment and make; In the violation of the act, the private fee, provide false material and intentional crime also belongs to the judicial administrative department to deal with the illegal matters occupies most of the, and intentional crime is not at all the law association of the regulation of the object, the "disciplinary rules" stipulated in the rules of the lawyers associations by the regulation of the specific Behaviour but not get due regulation; In the disciplinary means according to the administrative punishment and make the suspension of the rights of members and cancellation of membership qualification of this disciplinary measures occupies the main part, and the professional community within the admonition and reprimand measures and does not get due attention.

Secondly, compared with the self-regulation of trade associations, the state administrative organs still play a major role in the field of regulation. Relative to the self-regulation of the bar association, in the process of its practice to regulate the more diverse violations, but there are also the following problems: one is the source of punishment clues, in addition to according to the judgement of intentional crimes, mainly to accept the citizen's complaint, which need to sort out its relationship with the bar association, because according to the requirements of the aforementioned "complaint regulations", the first complaint in principle by the bar association for acceptance, which is exactly Verify the weak self-regulation of the lawyers association, a large number of complaints processing is still made by the administrative organs, and the lawyers association is only according to the administrative punishment has been made to make the corresponding processing; Secondly, in the scope of regulation, the judicial administrative organs of the practice of the scope of regulation compared to the lawyers association of the scope of self-regulation is greater, but obviously in the specification of the "punishment regulation" than the judicial administrative organs of the "lawyers and law firms" (hereinafter referred to as the "punishment measures for illegal acts"). Punishment measures" (hereinafter referred to as "punishment measures") is broader, even in part of the scope of regulation overlap in the field, the judicial administrative organs of the administrative regulation also played a leading role; Third, from the point of view of the punishment means, ex post facto punishment based on the number of warnings and suspension of punishment applicable to the number of relatively comparable, warnings are generally accompanied by the order to correct the behaviour of the overall more ex post facto behavioural penalties, which needs to be Sort out the relationship between the warning penalty and the behavioural penalty as a means of regulation, and in the more punitive penalties the parties are often reluctant to apply for a hearing to communicate with the administrative authorities.

Finally, the judiciary often conducts a substantive review of the decision to file a social complaint, analysing whether the behaviour complained of violates professional ethics, and in such cases, lawyers and law firms are required to participate in the litigation as a third party, examining and explaining the relevant violations of professional ethics in the course of public judicial activities, with a result that is more just and in line with the norms of the professional community. However, the judicial system in the court practice there are also the following problems: First, in the prosecution conditions (source of the case), the court of different regions for the degree of protection of the parties vary, often specifically analyse whether they have an interest, which may be due to the existence of a certain cost of litigation, in order to litigation economy and give priority to the protection of rights of the parties to be infringed upon, the court from their own ability to the degree of judicial system to make a lot of restrictions on the degree of the law. The degree of regulation made a number of limitations. Secondly, the court in the content moderation also distinguishes between the scope of regulation of different regulatory bodies for different behaviours, the priority of the scope of overlap, which involves the court and the judicial administrative organs of the scope of regulation of the problem. In addition, in terms of the means of regulation, the court's decision to revoke and require a new decision on the handling of the complaint is an indirect means of regulation.

All in all, here involves three core issues: first, in the regulatory framework, practice has proved the failure of the direct provision of the first complaint received by the bar association, how can the self-regulation of the bar association can be constructed, the professional association of self-regulation and the judicial administrative organs of the external regulation and the court's judicial review of the relationship between the three? Secondly, in the scope of regulation, on the one hand, the "disciplinary rules" did not play an effective role, the bar association in the application of the "disciplinary rules" in fact and the application of the "punishment rules" is no difference, and even the "disciplinary rules" just play the role of administrative punishment into the association of disciplinary action; on the other hand, the system of judicial law in the prosecution conditions and content moderation moderation on the scope of the regulations; then what should be used? On the other hand, the judicial system has limited the scope of regulation in terms of prosecution conditions and review contents; then what criteria should be used to divide the scope and focus of regulation of lawyers' associations, judicial administrative organs and courts? Third, in the means of regulation on the use of ex post facto behavioural discipline way, admonition, warning and other means of reprimand nature, the degree of punishment is relatively low means has not been more applicable, then its and the behaviour of the restriction of the more serious degree of punishment means of regulation of the relationship between the application of the means?

2. The crisis of professionalism and the renewal of regulatory governance

2.1 The crisis of professionalism

In sociology, self-regulation has traditionally been a key component of professionalism, where the goal of specialisation is the monopoly of opportunity in the service or labour market, and the inalienable monopoly of status and work privileges in the occupational hierarchy. Thus legal careerists argue that for the legal profession to be a true community, it must achieve a system of self-regulation - the autonomous management of the profession's internal affairs by its own internal bodies (often bar associations, but also law schools), including the control of the number and quality of members of the profession, the determination of the quality of professional training, and the control of the number of members of the profession.4 This is a key component of legal careerism. This includes controlling the number and quality of members of the profession, determining the content of professional training, promulgating professional ethics, and disciplining offenders. Professionalism lies primarily in the following ideas: first, only lawyers can understand the legal complexities involved in regulation; because non-lawyers do not have the basis for understanding the relevant issues or the context in which lawyers' behaviour is understood; second, lawyers, through their training and professional socialisation, are equipped with both the professional skills and the appropriate ethical orientations for self-regulation; and, finally, the profession adheres to a duty of self-regulation, which should justify its continued control of the disciplinary process; moreover, the self-regulation of the legal profession avoids unfavourable state intervention, and the legal profession serves as an intermediary between the state and its citizens. However, criticism of self-regulation of the legal profession has risen in recent decades, with many critics arguing that self-regulation contributes to the high cost of legal services, stifles innovation and fails to achieve its goal of protecting the public interest, and a number of countries have begun to reform the regulatory model of the legal profession, such as the UK, which, in the aftermath of the Legal Services Act 2007, has abandoned its traditional model of self-regulation in favour of a co-operative model of regulation. For example, the UK has abandoned the traditional self-regulation model after the Legal Services Act 2007 and adopted a co-operative regulation (coregulation) model, i.e. introducing public regulation under the premise of retaining the traditional self-regulation; on the other hand, even though the practice of self-regulation has been retained, it has been far different from the traditional model of regulation centred on the ex post facto discipline by rules of professional ethics. This shift stems mainly from the following two aspects:

On the one hand, there are changes in the institutions and practice areas of law firms. The formation of global professional services firms has led to law firms playing an increasing role in regulating, shaping and even generating the professional identities of the practitioners they employ, as well as attempting to inculcate appropriate skills and mindsets in their employees. These corporate forms of law firms have adopted a range of increasingly sophisticated approaches to HR practices such as selective recruitment, internal training, performance appraisal and mentoring, moulding new employees into highly effective corporate professionals with a greater focus on client focus, commercial awareness, teamwork and efficiency. Lawyers' areas of practice have also changed, with many in-house legal departments expanding, which has led to a greater tendency for companies to shop around before deciding to hire an external lawyer, which has led to looser employment relationships and greater mobility of lawyers between firms due to the rise of the large, corporatised firms mentioned above, and a tendency for client needs to be personalised to the lawyer. The traditional theory is that, given the uncertainty and asymmetry of information, the market is sufficiently "soft" that client needs will be met by professionally regulated services, including ethical compliance with the law, and that lawyers will act as "watchdogs" of client compliance; while the alternative theory is that, in certain corporate legal services, lawyers will act as "watchdogs" of client compliance. Another theory suggests that in some markets for corporate legal services, where clients can easily change lawyers and where information asymmetry is unlikely to exist because the client is a sophisticated repeat participant, clients will choose lawyers who will provide the services they require, including services aimed at avoiding or resisting the law. In practice, clients usually choose lawyers who are consistent with their clients' commitments, but there are some lawyers who influence their clients to take a gaming approach to the law. In particular, after the Enron bankruptcy, it became clear that lawyers, both in-house and outside, were involved in many of the core transactions that ultimately led to the company's bankruptcy.

On the other hand, this change in the institution of the firm and the field of the profession has also affected professional ethics. The emergence of legal commercialism has had a tremendous impact on the traditional concept of professionalism. The basic idea of legal commercialism is to understand the activities of lawyers in providing legal services to their clients as commercial activities, to define the field of supply and consumption of legal services as the legal market, and its basic concepts include the assumption of the economic man, the concept of the legal market, the concept of free competition, and the concept of entrepreneurial business. This conception is further combined with free-willism, a client-centred ideology that denies any public duty other than to serve the client, and culminates in an overzealous and uncontrolled instrumentalism that requires lawyers to do everything legally permissible to achieve their clients' goals, including the use of any legal or procedural mechanism regardless of its purpose. These kinds of perceptions create tensions among corporate lawyers and further exacerbate the crisis of legal professionalism. Many critics have argued that neither role morality nor client free will, as traditionally theorised, apply to corporate lawyers, as role morality applies more to the litigation sphere, particularly criminal proceedings, as it relates to limiting the power of the state over its citizens, and that the principle of respect for individual autonomy does not require respect for the autonomy of corporations: it is questionable whether it is even legitimate to characterise corporations as self-governing. The principles of moral independence and loyalty also do not apply to the practice of corporate lawyers, with some scholars proposing theories of moral dependence within the corporate sphere, where the behaviour of lawyers and clients is not always easily distinguishable, where lawyers and clients work together to accomplish goals rather than separately; where, although they both exercise some independent judgement, they work together, and do not always take on different moral roles; and where lawyers do not merely provide independent legal advice or defence, so lawyers cannot always deny ethical responsibility for their clients' actions.

Due to the changes in the business model of legal services, the modern legal professional ethics presents a kind of "non-moral", that is, the specific ethical code of conduct, lawyers only need to be loyal to the client, and the treatment of justice and the public interest, do not need to assume any moral duties, and this kind of ethics is based on the behaviour, and the rules as a direction, which makes the professional ethics norms now often appear as part of the legal rules. has led to the emergence of professional ethical norms that now often appear as part of the rules of law. Although some scholars believe that the professional ethics of lawyers should be responsible for the moral attractiveness of legal practice as a whole, in practice, due to the rule-based nature of ethics, the so-called "creative compliance" will inevitably arise through the interpretation of non-determinative and uncertain rules to satisfy the needs of the parties without regard to the realisation of the public interest. compliance". Consequently, traditional rule-based command and control professional ethics do not meet the needs of the legal service, and are often criticised for unclear objectives, rigid rules, insufficient or excessive ex post enforcement, and unintended consequences.

These reasons have led to a breakdown in the self-regulatory "negotiation" between the legal profession and the state, and to the heterogeneity and fragmentation of the legal profession. Commercialism has led to the inability of traditional self-regulation to place the public interest or the consumer interest (which do not exist at the same time) at the centre of regulation, on the one hand, the risk of induced demand arising from the problem of principal-agent representation, and on the other hand the risk that lawyers' professional practice in relation to their clients may add to the external costs of legal services to third parties and to society as a whole, which requires the application of new modes of regulation, often representing intervention of the state, i.e. a statist tendency. The question is whether there is a way beyond statism, commercialism and professionalism?

2.2 Innovation in regulatory governance

The shift in regulatory governance in many countries in recent years has made this path possible, i.e. from a traditionally understood model of regulation to a "post-regulatory", "deregulatory" or polycentric model, also known as "regulatory governance" (or "governance of regulation"), to a "post-regulatory", "deregulatory" or polycentric model. This change stems first and foremost from a shift in the functions of the State towards a "regulatory governance". This change stems first and foremost from a shift in the functioning of the State towards governance: out of a reflection on the aftermath of the crisis of the welfare state, a change from domination to governance has been initiated in public management and economics, whereby governments should not provide services directly through directives (rowing the oars), but should govern more through markets, competition and performance (steering the ship). In this process, there has been an explosive growth in the use of the term governance, with terms such as corporate governance, hierarchical governance, good governance, global governance, and new public management proliferating. Despite the diversity of usage, the underlying assumption of the concept of governance is the importance of non-government actors in the management process, which is based on interaction rather than directives, and is continuous and ambiguous, and that governments must work with non-government actors in complex organisations to manage public affairs, thus going beyond the dichotomy between economic governance structures - the market and the hierarchy. -market versus sectional dichotomy, but rather as a network structure of interdependence and reciprocity. Professor Rhodes, a leading figure in governance theory, outlined six uses of governance in his famous paper "The New Governance: Rule without Government", and combined this with the theory of autopoiesis to propose a definition of governance as a self-organising inter-organisational network comprising interdependence between organisations, continuous interaction between network members in the exchange of resources and negotiation, which is characterised by gaming and rooted in trust, and a high degree of autonomy from state regulation. A high degree of autonomy from state regulation. In this process, self-organisation uses institutionalised negotiation to reach consensus and build mutual trust, thus complementing market exchange and top-down government regulation, and thus requires continuous and persistent dialogue to generate and exchange more information in order to reduce, but not eliminate, the problems posed by limited rationality, which is the reflexive rationality that characterises governance. Although the government is no longer the centre of governance, it still plays an important role, and there is a possibility of coordination failure in the governance model, which requires further learning and reflection, and "meta-governance" has been proposed as "governance of governance": meta-governance is a response to the complexity, plurality, and diversity of issues found in the universal coordination model. Meta-governance is the management of the complexity, plurality and intricate hierarchies found in universal coordination models, through the intelligent organisation of markets, hierarchies and networks to achieve the best possible outcomes; government plays an increasingly important role in all aspects of meta-governance: it is involved in the re-design of markets, the change of constitutional structures, the re-regulation of organisational forms and laws, the provision of organisational conditions for self-organisation, and above all its involvement in collaborations, which provide a basis for dialogue and regulatory order of governance and assume political responsibility in case of governance failure.

This shift in the function of the State from "rule" to "governance" has in turn had a significant impact on regulation, which in the governance era has shown that control through formal law is limited and the State is no longer at the centre of the regulatory body, but rather that regulation occurs within and between a wide range of social actors, including a combination of hard and soft law and a variety of normative governance, such as contracts. actors, both within and between them, and includes a combination of hard and soft law as well as various norms of governance such as contracts. But the question remains: how should law function as a means of regulation?

"Regulatory governance" combines Foucault's "governability", Toibner's "theory of legal autopoiesis" and Braithwaite's "responsive regulation". theory of responsive regulation". First, in his genealogical analysis of governance, Foucault argues that the governance strategies of eighteenth-century agrarianism suggest that the ultimate purpose of governance exists in the refinement and reinforcement of the processes it directs, and that the instrument of governance is no longer law but a series of multiple forms of manipulation. Secondly, Toibner's 'theory of legal autopoiesis' incorporates Luhmann's view of systems theory, whereby regulation finds ways to reduce or minimise differences between different fields of action by ensuring structural coupling, prompting reflexive mechanisms within subsystems, whereby the law plays a proportionate role in directing or proceduralising those activities that seek control, and thus indirectly seeks control. In this model, the subjects of regulation are either required or incentivised to make their own rules, creating a kind of "reflexive law" that programs the self-regulatory system; a reasonable conception of regulation has five core concepts: complexity, fragmentation, interdependence, ungovernability, and denial. A clear distinction is made between public and private regulation, with overtones of procedural law and democratic consultation. Finally, responsive regulation envisages that regulatory activity takes place in a dialogical environment, where the government, as regulator, interacts with firms, progressively applying stricter punitive enforcement measures in the form of fines or licence revocations if less intrusive advice and persuasion measures fail, and encouraging voluntary compliance through repeated interactions with the "carrot and stick" approach. This kind of regulation is further developed into the interaction of multiple regulators, emphasising the interaction of multiple regulators using complementary combinations of policy tools, while the role of the state is not to intervene directly, but to provide the prerequisites, co-ordination and supplementation for other regulators. In short, the state and the law no longer regulate by direct order, but rather aim to construct and program a process of dialogue and reflection among multiple regulators. "Regulatory governance" represents a broader regulatory interaction between the state and multiple social actors to achieve regulatory goals, in which the law as a means of regulation is no longer only a direct command-and-control approach, but aims to construct and process a wide range of consultative, reflective, and alternative means. This also provides a new way of thinking about regulation that combines the interaction between the three systems of State, market and society, and has been adopted by many countries.

3. The Shift in Regulation of the Legal Profession: The UK Practice

The above model of regulatory governance has been gradually adopted in the UK following the enactment of the Legal Services Act 2007, and this article analyses its application to the regulation of the legal profession in the context of UK practice. Professionalism has a long history in the UK, with the independent professions in England and Wales considered part of a "balanced constitution", and the Glorious Revolution of 1688 recognising the autonomy of a number of professions, charters and local bodies known as "little republics". The Glorious Revolution of 1688 recognised the autonomy of many professional, chartered and local bodies, known as "small republics", including the Bar. This self-regulatory professionalism has been increasingly challenged in recent decades, and in 2004 Sir Clementi's Report on the Review of the Regulatory Framework for Legal Services in England and Wales identified problems with the existing regulatory framework, the complaints system, and commercial structures. The ultimate aim of the report was to examine what regulatory framework would best promote competition, innovation and the interests of the public and consumers within an efficient, effective and independent legal profession, and to establish a structure that was independently representative of the public and consumer interests, comprehensive, accountable, consistent, flexible and transparent, and which would not be more restrictive or burdensome than was reasonable. This culminated in the adoption of a co-operative regulatory model combining (external) managerialism with (internal) professionalism in the Legal Services Act 2007, through the creation of the Legal Services Board (LSC) as a classic second-tier independent regulator responsible for controlling cartelisation, setting minimum quality standards for frontline regulators, and acting as the The LSC acts as an agent for the "ill-informed consumer". This approach does a good job of incorporating professional ambitions and principles into legislation, while at the same time strengthening control over professional groups, influencing professional agendas and shaping the market through competition, rather than rationalising such professional groups or abolishing their organisational and normative structures: while preserving professionalism, reforming the full range of existing professionalism's regulatory models and instruments to meet the challenges of commercialism. Because solicitors have a much wider scope of representation than barristers and limited rights of audience, they have been challenged more intensely in terms of their regulatory framework and consumer protection. As a result, the Solicitors Regulation Authority (SRA), as its regulatory body, has to constantly strike a balance between statism, commercialism and professionalism. The Solicitors Regulation Authority, as the regulatory body of the Solicitors Association, is itself a representative of professionalism. In response to the onslaught of commercialism, the Solicitors Regulation Authority is accountable to the Legal Services Board (LSC) for assessing its regulatory performance, while at the same time achieving the LSC's regulatory objectives through more flexible regulation of solicitors and their firms.

3.1 Regulatory framework: meta-regulation versus physical regulation

The application of the concept of meta-regulation has initially focused on the area of corporate social responsibility, whereby regulation is set up to encourage or compel enterprises to establish internal governance structures, management practices and corporate cultures that hold them accountable for conscientious fulfilment of their duties in order to achieve accountability for the results of social governance. In this approach, the government regulates the regulator, and the particular rules and processes imposed on the target are set by what may be a privately owned or multiple third-party regulators. These regulators are in turn regulated by the state, and this approach tends to apply where the regulating entity is able to achieve better results than government regulation in terms of regulatory design through specialised regulatory tools and techniques. Meta-regulation also represents a form of "reflective governance", an approach that encourages regulators to be willing not only to modify their views, but also the way they think about these key issues in the context of the actors involved. Meta-regulation takes advantage of the capacity for interactive learning within and between organisations, and this reflexive process is iterative and allows the outcomes of decisions to be re-examined and modified in the light of experience, based on more or less explicit procedures, but with open-ended and uncertain outcomes. That is, rather than forcing the regulated to achieve regulatory objectives through direct command and control, the government as regulator or the independent regulator uses a form of 'legal stimulus' to induce the regulated to engage in 'self-reflection' in order to achieve the objectives desired by the government or the independent regulator. It is a "legal stimulus" that prompts the regulated to engage in "self-reflection" in order to achieve the goals desired by the government or independent regulator. Meta-regulation is a good combination of state regulation and self-regulation in two dimensions:

The first is between first- and second-line regulators. The Legal Services Board (LSC), as the second tier regulator, regulates the first tier of 'accredited regulators' (i.e. the nine legal professional bodies that exist in the UK) in relation to monopolies, consumer representation and internal governance rules, and can set standards for the first tier of regulators to achieve in accordance with the objectives and principles set out in the Legal Services Act. Frontline Regulators are required to fulfil the objectives that the Legal Services Board requires them to fulfil and are subject to regular performance assessments by the Legal Services Board. For example, in June 2019 the Solicitors Regulation Authority underwent the Legal Services Council's Regulatory Performance Assessment, which rated its regulatory model, delegation, supervision, enforcement and good leadership, and which documented in detail the achievement of the objectives set by the Legal Services Council for it. Only when a frontline regulator refuses to meet its objectives does the LSC direct, intervene, publicly reprimand, fine or even disqualify it from being an accredited regulator.

The second is between the frontline regulator and the regulated law firm. The Firms Code of Conduct requires firms to maintain trust and act fairly, to have effective compliance and operational systems in place, to report promptly when there is a risk to the firm or a solicitor or when a breach has occurred, and to be required to submit compliance reports within fixed deadlines. The Solicitors Regulation Authority (SRA) has also introduced the Compliance Officer for Legal Practice (COLP) to strengthen the accountability of law firms' internal governance by identifying a compliance officer to be responsible for the firm's compliance practices to ensure compliance with the terms and conditions of the SRA's licence authorisation, and the COLP is obliged to report any such breaches of professional ethics to the COLP when they occur. The Legal Practice Compliance Officer is required to report any such risk of ethical breaches and is subject to investigation by the Solicitors Regulation Authority (SRA). The creation of the Legal Practice Compliance Officer reinforces the accountability of the Firm's power structure for compliance decisions and places additional responsibility on the Compliance Officer. By asking questions and engaging in dialogue with others within the firm, the Law Practice Compliance Officer reminds other attorneys of their compliance responsibilities and the fact that they may personally be held accountable externally, promoting accountability throughout the firm. Internal dialogue may be more reflective and defensive than dialogue with external regulators, which may reduce the risk of lawyers' mindsets becoming entrenched.

3.2 Scope of regulation: centred on principles, outcomes and standards

In order to avoid the pitfalls of a traditional professional ethic centred on rules of conduct, which in practice has been subjected to commercialism and has led to rigid 'creative compliance', the Legal Services Act 2007 sets out five principles of professionalism, which set standards of conduct and standards of behaviour by means of principles-based regulation, as opposed to rules of conduct with clear prescriptive duties. as a regulatory technique reduces the ability of the regulated party to exploit loopholes and engage in minimal technological competition. However, the practice of the financial crisis has shown that principles-based regulation alone does not lead to good regulatory outcomes; it fails to provide certainty and predictability, and it fails to create a regulatory system in which regulators can act retrospectively. For principles-based regulation to be effective, the regulator and the regulated must be in close contact on the basis of mutual trust, firms need to be concerned with more than just minimum compliance with regulatory requirements, and the regulator must clearly communicate results and objectives, otherwise many conflicts may arise. The Solicitors Regulation Authority (SRA) therefore introduced outcome-focused regulation by amending the Code of Conduct to consist of Principles, Themes, Outcomes, Indicative Behaviours and Record of Guidance, where the Principles, Themes and Outcomes are mandatory, and the Indicative Behaviours and the Record of Guidance are non-mandatory. However, this mix of principles, outcomes and instructive behaviour rules created new problems, with the overly complex design raising costs for firms and shifting costs to users of legal services rather than promoting good practice and consumer protection. The Solicitors Regulation Authority (SRA) has subsequently adopted two reforms to achieve these objectives: the new Solicitors' Code of Conduct (SOC) adopts high professional standards of control, which apply to all practices relating to solicitors' conduct and form a framework for ethics and competence, and solicitors must use their own judgement to apply these standards to the situation they find themselves in and decide what to do. The lawyer must use his or her judgement to apply these standards to the situation in which he or she finds himself or herself and to decide on a course of action, bearing in mind his or her roles and responsibilities, the area of practice and the nature of the client, and his or her duty to comply with this Code and with other regulatory requirements, and must always be prepared to defend decisions and actions. Similarly, the Corporate Code of Conduct enables the creation and maintenance of the right culture and environment through standards and operational controls, and it includes standards for legal practice compliance officers.

The difference between "professional standards" and a focus on specific outcomes is that they draw more on the performance standards that have been adopted in recent years in the areas of product quality and food and drug standards, which require performance of an activity (rather than the quality of the product of a particular action), and judge the ethicality of a professional's behaviour by its general performance. This flexibility greatly enhances the scope of regulation of professional ethics. But such general standards also have the obvious disadvantage that they require further interpretation to clarify their requirements, which also depends on dialogue, trust and accountability between the regulator and the regulated.

3.3 Regulatory instruments: the use of risk-based regulation

Compared to the traditional ex post "command and control" regulation based on rules of conduct, ex ante compliance based on communication of uncertainty risks has the following advantages: firstly, it is more oriented towards ex ante prevention of risks to avoid ex post remediation of harms to consumers or the public interest that have already been caused by rules of conduct; secondly, traditional ethical rules are centred on ex post punishment, which often relies on passive, public complaint-based regulation; and secondly, traditional ethical rules are centred on ex post punishment, which often relies on reactive, public complaint-based regulation. Secondly, traditional ethics rules are centred on ex-post disciplinary action, which often relies on passive, public complaint-based regulation, whereas risk-based regulation emphasises the proactive role of the regulator in conducting targeted assessments and addressing risks through ex-ante and ex-ante warnings; and lastly, traditional ethics rules often rely on the regulator's interpretation of the rules of conduct, making it difficult to assess all "risks". Finally, traditional ethical rules often rely on the regulator's interpretation of the rules of conduct, and it is difficult to effectively regulate all "creative compliance" behaviours, while risk regulation emphasises the assessment, guidance and resolution of risks, which is conducive to negotiation and dialogue between the subject of regulation and the regulator to deal with the risks together, as the risks are also, to a certain extent, the object of their business governance. After the implementation of the Legal Services Act in 2007, the Solicitors Regulation Authority has been experimenting with risk-based regulation, having set up a Risk Assessment and Designation Centre at the beginning of 2008 and adopting a risk-based approach to regulation as its principle of regulation. Regulators must design operational procedures to meet their stated objectives of reducing risk; ideally, more targeted regulation will also contribute to cost savings as resources are used more efficiently.

In accordance with the Solicitors Regulation Authority's (SRA) risk regulation framework, at the risk identification stage, the SRA identifies the targets for risk regulation in accordance with the objectives and professional principles set out in the Legal Services Act, taking into account the significant risks arising from the achievement of the various objectives and principles. The risk assessment stage involves two main requirements: firstly, the collection of risk information, which relies not only on traditional complaint handling, but also on proactive reporting by compliance officers of the internal legal practice of legal service entities such as firms, which makes the collection of information comprehensive and adequate; and secondly, the introduction of risk matrices, a tool commonly used in the field of risk assessment, at the stage of specific analyses and assessments. The second is the introduction of risk matrices (commonly used in the field of risk assessment) in the specific analysis and assessment phase, such as the criteria for determining the risk of different firms in its assessment framework (as shown in the figure on the right), so that measures can be taken to target firms or legal services companies with different levels of risk. The next stage is risk management, where the Solicitors Regulation Authority (SRA) adopts a formal risk management approach, taking action commensurate with the risk, weighing the public interest against the interests of the individuals or firms involved, and considering the available sanctions and controls in turn, starting with the least restrictive, and making greater use of ex-ante counselling, and in some cases settlement agreements, to achieve its regulatory objectives. Finally, risk communication is integrated into every aspect of risk regulation, with the Solicitors Regulation Authority using a combination of proactive collection and reactive regulation, as well as formal disciplinary action and co-operative negotiation, highlighting the interaction between the regulator and the regulated.

4. Rethinking and learning from the regulatory system:

Improvement of the existing regulatory system in China

At present, China's lawyers' professional regulatory framework still adopts a "two-combination" model, that is, a management system with the macro-management of the judicial administrative organs as the core, the industrial management of the lawyers' association as the main body, the self-regulatory management of the law firms as the basis, and the control and management of the government's macro-control department as the guarantee. Specifically, in accordance with article 4 of the Lawyers Law, the judicial administrative department supervises and guides lawyers, law firms and lawyers' associations, and this supervision and guidance includes both macro-level industry development planning and administrative regulations, as well as micro-level inspections and interviews of lawyers and law firms and licensing and disciplinary actions (manifested as administrative penalties). From the Lawyer Law, Article 46 of the duties of the Bar Association, the Bar Association also lawyers and law firms also enjoy a wide range of regulatory power, which shows that the administrative regulation of the judicial administrative department and the self-regulation of the Bar Association in the scope of regulation of the boundaries are not clear. Although there is some overlap in the scope of regulation, the judicial administrative organs have the power to regulate serious violations of professional ethics and more macroscopic or fundamental matters than the lawyers' associations, i.e., administrative regulation and professional self-regulation are divided according to the importance of the matters: major matters involving lawyers and law firms are regulated by the judicial administrative organs, while the lawyers' associations are regulated by the lawyers' associations for non-diligence in their representations, with a common regulation in between. Regulation, the middle belongs to the scope of the two common regulation. And by the above empirical analysis can be concluded, the current China's industry association self-regulation does not play a due role, professional autonomy is weak, the rules of professional ethics in practice can not assume the role of regulating behaviour. At the present stage of the regulatory system still has a strong colour of statism, the two in the field of regulatory authority still need to further clarify the boundaries, give full play to the state and the professional community of their respective advantages, to truly realize the ideal of legal professionalism in China's germination and combination. In addition, also need to pay attention to the special role of the judicial organs (courts) in the lawyer's professional regulation. The court plays the following threefold role in the regulation of lawyers' profession: firstly, the court itself is the main body exercising the right to regulate under certain circumstances, for example, the court regulates the law firms acting as bankruptcy administrators in the Enterprise Bankruptcy Law; secondly, the judicial documents made by the court may become the main basis for regulation, and the judicial administrative organs should rely on the judgement of the judicial organs to make the decision of punishment for violating the professional ethics in the course of the lawsuit when making decisions. Should be based on the judiciary's judgement, such as false evidence in the litigation process and disturbing the court order, etc.; Finally, the court's judicial review of the decision to deal with social complaints also constitutes an indirect regulation to a certain extent, which is equivalent to the second review of complaints about the violation of professional ethical behaviour on the basis of the judicial administrative department, compared with the judicial administrative organs and the lawyers' associations' self-regulation, the procedures are More fair, open and confrontational, in the content of the court for professional ethics judgement will often use a variety of interpretation methods for full reasoning, but this form of indirect regulation is easy to cause a waste of judicial resources, and the realization of the disciplinary organs need to judicial administrative organs to make a new decision, so many courts have set a high threshold for this social complaint decision, but the specific limitations are still in practice more confusing, and the review method also has a certain degree of However, the specific restrictions remain confusing in practice, and there is some ambiguity in the way they are reviewed. As a result, the above three modes of regulation constitute the main form of professional regulation of lawyers in China.

The crisis of legal professionalism is a common problem faced by western countries under the trend of globalisation and commercialisation, and most countries have begun to reform the traditional legal professionalism, introducing public regulation under the premise of retaining the self-regulation of traditional legal professionalism, and attempting the practice of cooperation between the state and the profession. In our country, the legal professional community has always been the goal of our theory and practice, and is also the expected direction of reform, but complete legal professionalism in our country neither the soil of traditional culture, but also by the transition period of the moral vacuum of the challenge to become a "scapegoat" of social injustice. For the practice of the legal profession in China, while law firms continue to move towards marketisation and scale, how to shape the spirit of professionalism in public regulation, so that the profession of lawyers can truly become the cornerstone of the rule of law and the guardian of citizens' rights, and at the same time to make it respond positively to the expectations of the state and the public, the practice of the Western countries is precisely from the opposite direction towards the same destination. This paper will combine the innovation of regulatory governance and the practice of British regulation to put forward the reform of China's lawyers' professional regulatory system, clarify the relationship and positioning between administrative regulation, lawyers' association regulation and judicial regulation, and reflect on the existing regulatory system.

4.1 National and professional co-operation regulation

For the judicial administrative department and the bar association, although in the "complaint regulations" in the provisions of the law firms and lawyers of the first complaint in principle by the lawyers association, this provision reflects a certain colour of professionalism, but this self-regulation does not play a good role in practice. The reason for this is that some areas of the lawyers' associations objectively have insufficient resources and capacity; there are also problems in the design of the system, that is, most of the citizens complained about the violation of professional ethics, the judicial administrative department and the lawyers' associations have the power to regulate, although the lawyers' associations for the first time to accept the complaint authority, but does not provide for a certain public accountability mechanism, which may lead to the lawyers' association's Slack so as to fail to play the professional community should be self-regulation ability; On the other hand is to suspend the rights of the members of the industry discipline is still a large number of according to the judicial administrative punishment, shows that the lawyers association still has a strong dependence on the administrative organs, the professional community of judgement has not become the main basis for regulation. Therefore, this paper believes that should absorb the above "meta-regulation" concept, respect the professional community's judgement, and will be combined with the administrative organs on behalf of the public public regulation, that is, in the lawyers' association to accept the first complaint on the basis of the increase of the judicial administrative department to the lawyers' association of the public accountability mechanism, this kind of accountability is not based on individual cases of regulation, but a way to achieve social effect. Regulation, but a kind of regulation to achieve social effect, such as the number of complaints, the public for the law association to deal with the degree of satisfaction and the law association's ability to investigate, etc., through regular performance evaluation and accountability interaction to prompt the lawyers association self-regulation; And administrative organs of the regulation of the case of the function of the lawyers association only in the self-regulation of the failure to protect the public interest, can only be as a spokesman of the public interest to carry out the complaint of the second review. Review.

From the viewpoint of the existing regulatory framework, the handling of citizens' complaints has formed a progressive relationship among these three types of regulation, i.e. the system of "self-regulation by trade associations" - "regulation by judicial and administrative organs" - "regulation by judicial organs". -The system of "regulation by judicial organ". This kind of indirect regulation by the judiciary has received little attention from scholars, so what is the role of judicial regulation? In addition to the role of the judiciary as a regulator of the previous regulator and as a source of reflection for the latter, i.e., as a "regulator of regulation", the judicial system, which is often overlooked in practice, also plays a significant role: the judiciary regulates professional ethics violations through neutral, legalised trials, which place citizens, state authorities and professional groups in an open debate. The judicial system also plays a major role: the judiciary regulates violations of professional ethics through a neutral legalised trial that places citizens, state authorities and professional bodies in a public debate. Although the aforementioned restriction of the conditions for prosecution is to some extent a consideration by the court to prevent the waste of judicial resources, it is precisely when the judge limits the scope of prosecution to acts that directly affect and materially infringe on the rights and interests of the parties by interpreting the conditions for prosecution in the Administrative Procedure Law, that is to say, only the parties whose rights and interests have been harmed can act as a party to the lawsuit, which in fact represents the safeguarding of the interests of the parties under commercialism. The other side of the lawsuit is the judicial and administrative organs as the guardian of the public interest, representing the protection of the public interest under the nationalism; and as the legal professional community of the judge and the complained lawyer represents the use of legal technology under the professionalism. Thus, only in the judicial field, these three kinds of doctrine represented by the subject can be negotiation, game, reflection and interaction, and ultimately make beyond the statism, commercialism and professionalism of the judgement; This is why the court in the content moderation stage will be used in the interpretation of the text, the purpose of the interpretation of the system interpretation of the administrative organs of the basis of the punishment of the substance of the reasons for the judgement. With regard to the role of the courts in the other two types of regulation, the disturbance of the order of the proceedings itself took place in the context of the proceedings; although it was debatable whether insolvency proceedings were proceedings, they were still judicial proceedings. Finally, because of this and the court's judgement and decision is final, whether it is the lawyers association or the judicial administrative organs in the intentional crime, disturbing the order of the court and false litigation and other cases that have been dealt with by the judicial organs, should be based on the court's judgement or decision directly to make the corresponding regulatory measures.

In addition, in China's lawyers professional regulation practice, the relevant regulations are mostly for lawyers, and little attention to the role of law firms. This may be related to the development scale of China's law firm industry: according to the Ministry of Justice's public data, as of the end of 2020, the number of law firms with more than 51 lawyers is only more than 1,040, accounting for about 3.07 per cent; that is to say, most of the law firms are fewer in number, and it is very difficult for them to play the role of internal self-regulation of compliance. However, at the same time, in the mid- to high-end legal services market, large-scale law firms are also emerging. In the 2018 Global Law Firms Ranking published by American Lawyer, a total of 16 Chinese law firms are on the list, and the number of law firms with more than 1,000 people has increased by 3 compared with the previous year. For this type of large-scale law firms, which have stronger resources and internal governance capabilities, and are more likely to avoid regulation, it may be more realistic to adopt the "entity regulation" approach, which strengthens the firm's responsibility and requires it to set up a certain compliance system and a commissioner.

4.2 Defining the scope of regulation

Another reason why the self-regulation of the Bar Association fails to work is that the Disciplinary Rules, as a "rule-based" professional ethic, leads to "creative compliance" by interpreting uncertain rules to satisfy the needs of the clients without regard to the public interest, which is why the Bar Association has the broadest scope of regulation in terms of norms, but the actual scope of regulation in practice is very narrow and almost becomes the basis for the judicial and administrative organs to make administrative sanctions according to the Punishment Measures. This is also the reason why lawyers' associations have the broadest scope of regulation in norms, but the actual scope of regulation in practice is very narrow and almost becomes an appendage of the administrative penalty decisions made by judicial administrative organs according to the "Punishment Measures". Therefore, the principle judgement or professional standard of professional ethics should be introduced to achieve greater certainty and interpretability of the Disciplinary Rules, and in the absence of rules of conduct, the violation of professional principles and professional standards should also be regulated by the corresponding bar association, so as to prompt lawyers and firms to reflect on the principles and professional standards. In other words, the principles and professional standards are used as a guide to reshape the professional ethics of lawyers compared to non-moral rules of ethical conduct, because the principles and standards are not confined to specific forms of conduct, but rather compel lawyers to analyse, judge and reflect on their own relationship with professional ethics in the course of their practice.

In the level of judicial and administrative organs, the legitimacy of the administrative organs to enforce the law lies in the protection of the public interest, so it is not responsible for the relationship between lawyers and their clients, and there is no "creative compliance" concerns; and in accordance with the basic principles of administration by law, the administrative organs to enforce the law based on the basis of the law must be clear and explicit, even if there is room for discretion, it should also be clear. Even if there is discretionary space should also be within the scope of the law, and can not just use broad principles, standards as the basis, this is the "punishment method" compared to the professional ethics of the "disciplinary rules" the biggest difference, the real need to pay attention to is the abuse of administrative discretion on the professional community of excessive intervention. Precisely because it is not responsible for the relationship between the lawyer and the client, the administrative organs to protect the public interest rather than personal interest, but we see the practice of the administrative organs out of the transitional period of the "dynamic state" impulse to the only belong to the legal relationship between the client and the lawyer to carry on the excessive regulation, similar to the "punishment method In the "disclosure of commercial secrets or personal privacy", "non-performance of contractual agreements" and "individual cases of private fees" and other illegal acts should not be regulated by the administrative organs, only It is only when such acts endanger the public interest, especially when market behaviour leads to unfair competition, that the administrative authorities need to intervene.

At the level of the court's regulatory object, the court's judicial review of the decision to handle a social complaint follows this line of thought in practice: in terms of the conditions for prosecution, the party concerned must be the one whose rights and interests have been directly and practically harmed; and in terms of substantive review, it is necessary to judge whether or not the administrative organ has the authority to regulate. Needless to say, the court at this time to assume the party's interests and the public interest in conflict with the adjudicator, and its judgement through the standards of the legal professional community. Through the court's full debate, the court can through the method of legal interpretation of the above lawyers' associations to develop the professional community of ethical principles, standards and administrative penalties based on the combination of the judicial system of law is very well coordinated between the two kinds of professional ethics of the conflict between the judicial resources to the most in need of its solution to the place to avoid the waste of regulatory resources.

4.3 Interactive regulation by means of risk compliance

Risk compliance as a means of regulation helps to make up for the inadequacy of the existing ex post facto behavioural penalties and punishments, shifting the ex post facto behavioural punishment and regulation to ex ante and ex post facto communication of risk compliance, so as to avoid the occurrence of violations of professional ethics. In China's long-term law enforcement practice, in fact, there has been such a mode of regulation - special law enforcement inspection, such as in the recent Bao Yuming incident, in response to the public's "public outrage" against his long-term employment in the enterprise, the acquisition of U.S. citizenship and concealment of his practice in the capacity of a full-time lawyer. "special clean-up activities, and the scope of the special clean-up, steps and time limit; prior to the judicial administrative departments around the key risks of the relevant lawyer's profession has also carried out special law enforcement inspections. Therefore, it is necessary to optimise this kind of special inspection activities, the "campaign" special law enforcement inspection normalisation, standardisation, by the judicial administrative departments or lawyers' associations within the scope of its regulation of a certain period of time on the key areas of risk of the profession to regulate, at the same time will be proactive in the collection of risk information and the combination of passive investigations, the law enforcement process focuses on the law enforcement firms and lawyers communication, in the disciplinary process. and lawyers' communication, in the way of disciplinary action, more use of warnings, notification of criticism and other reprimands, in the case of the subject of regulation is still disobedient to the application of behavioural penalties, focusing on the supervision of its mitigation of risk.

Conclusion

The application of the "regulatory governance" model makes the professional regulation of lawyers, while retaining the original premise of self-regulation of professionalism, the introduction of external public regulation on behalf of the state and society, the reform of the "non-moral" ethical rules of conduct, with a pluralistic negotiation, The reform of "non-moral" ethical rules of behaviour, in a multi-negotiated and reflexive way, overcomes the crisis of legal professionalism under the influence of commercialism, represented by the modern market. From a broader perspective of the regulatory space, regulation involves complex negotiations and games between different subjects of power, and the market environment, organisational structure and resources of professional groups all affect their interaction with other subjects, so it is necessary to pay attention to all the resources and subjects of regulation in the regulatory space from a macro perspective, and to discuss their interdependence, while the market structure itself is one of the most important regulations affecting the legal profession, typical of the previous case of the legal profession. The market structure itself is one of the most important regulators affecting the legal profession, typically as described above, in the increasingly competitive market for legal services, where powerful legal service providers impose regulation on lawyers through their own resources, wealth, organisational capacity and even litigation, whether through formal market competition laws, contracts or other informal means. The resulting professionalism of lawyers is further eroded by the commercial structure, and faced with public expectations of dissatisfaction and external regulation represented by the intervention of State authorities, the legal profession gradually becomes regulated by the State, the public, and the interaction of the market and the profession.

China's legal profession is still in a stage of rapid development, the original state administrative regulation is still in a dominant position, with the market environment continues to change with the call for professionalism, the legal profession is more and more subject to the structural competitive pressure from the market and from the public in the form of litigation to regulate. Against this background, the legal profession has little possibility of pursuing a traditional, non-competitive self-regulation under professionalism, and it may even lead to the further destruction of the spirit of the rule of law represented by the legal profession by the state, society and the market. On this basis, absorbing the concept of "regulatory governance" mentioned above, and realising the interactive regulation of the state, the market, and society and the profession, may be a possible way forward for the legal profession to move towards professionalism in the future.