New York State Bar Publishes Independent Review of the New York State Court System’s Response to Issues of Institutional Racism

The New York State Bar has published the findings by the special adviser on equal justice, Jeh Charles Johnson. Over the course of the review Mr. Jonson conducted 96 interviews involving 289 individuals from across the state. This included interviews with judges, court clerks a range of practitioners within the system, and others involved in the New York State Courts. The two key findings from the report were that individuals of minority backgrounds were being fundamentally disadvantaged in terms of both the process and outcome of the courts. The report found that under-resourcing was disproportionately affecting minority communities, leading to unfair treatment. The report also found multiple instances of highly racist behaviour, and racist language being used by court employees, a matter of serious concern.

The report then went on to suggest a number of key responses that could be undertaken to improve the situation. These included:

  • Taking a top-down zero-tolerance approach
  • Expanding unconscious bias training
  • Addressing juror bias
  • Strengthening the Inspector General Process for Bias Complaints
  • Improving data collection around bias
  • Addressing diversity and inclusion in HR practices

Mr. Johnson said within the report: “This review comes at a particularly tense moment for race relations in America. Black Americans watch an unrelenting parade of video images of their people’s lives snuffed out like animals at the hunt, at the hands of law enforcement in this jurisdiction and beyond. They conclude, with considerable evidence to support it, that in the eyes of law enforcement their lives do not matter as much as those of whites. The very notion of equality under law is today cast in serious doubt. You are obviously committed to change and the assessment of hard questions, which is why you asked for this review. In my assessment as a lawyer, a student of history, a former public official, and as an African American, this is a moment that demands a strong and pronounced rededication to equal justice under law by the New York State court system. It is also my experience that credibility will only be earned if the public sees both strong commitments to reform at the front end and a sustained effort to follow through on those commitments, during your tenure as Chief Judge and beyond. ”

Read the full report here (PDF). 

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Bar Standards Board of England and Wales Releases Report on Bullying and Harrasment

The Bar Standards Board (BSB) has released a new report commissioned from YouGov, looking at bullying and harassment within the profession. The qualitative study, was commissioned as part of the regulator’s ongoing programme to address the root causes of bullying, discrimination and harassment at the Bar. The report involved 35 telephone interviews with 30 barristers, and five non-barristers, who had directly experienced or observed discrimination and harassment (including workplace bullying) at the Bar.

Key findings from the report suggest that:

  • Participants described a range of experiences, varying from unfair treatment based on protected characteristics, sexual harassment, long term bullying, unreasonable work demands and unfair work allocation. Low to medium level incidents were the most common, especially for those who are from more than one underrepresented group such as Black and female, or Asian and LGBT.
  • The Bar has a unique structure – most barristers are self-employed and reliant on clerks for their caseload, often with little formal management or HR structure uniting the two. Some participants felt this lack of formal management structure allowed harassment and discrimination to ”slip through the net.”
  • Despite an increased focus on equality and diversity at the Bar, most barristers interviewed had not formally reported their experiences. The key reasons were fear of a negative impact on their reputation and, therefore, their earning potential and career progression.
  • The lack of clear, anonymous and supportive formal and informal pathways to reporting incidents was seen as a barrier to addressing bullying, discrimination and harassment. Clearer and more accessible guidance about bullying, discrimination and harassment, its impacts, and when to report it, is needed.
  • The report concludes that for anti-harassment policies and procedures to be effective, there needs to be a shift in culture at the Bar to encourage openness and to discourage inappropriate behaviour, with a role for the BSB, the Bar Council and other stakeholders in driving change and offering support.

Speaking about the research, BSB Head of Equality and Access to Justice, Amit Popat said:

“We are committed to working alongside the profession and other stakeholders to root out bullying, discrimination and harassment at the Bar in all their forms. This targeted study amongst those who have directly experienced or observed bullying, discrimination and harassment at the Bar adds a very useful perspective to our understanding of how and why this behaviour is still occurring. It is plain from the study that there are significant cultural factors, including power imbalances, which inhibit the reporting of bullying and harassment. The Bar Standards Board will therefore be convening a roundtable with key stakeholders in the near future to discuss how, within the framework of chambers, supportive arrangements can be established which enable incidences of bullying and harassment to be reported and properly addressed. This must be a high priority for the profession.”

Read the BSB’s statement here, or view the full report here (PDF).

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Solicitors Regulation Authority of England and Wales Report on Better Information in the Legal Services Market

A new study commissioned by the Solicitors Regulation Authority, has found a number of positive trends in public attitudes towards price transparency in legal services. The report was commissioned by the SRA to look into the impact of the rules, which have now been in place for a year.

The rules included a requirement for regulated firms to publish price and service information for certain legal services, details on the teams/individuals who will provide services in these specified areas and details of their complaint’s procedure, including how and when issues can be referred to the SRA or the Legal Ombudsman.

The key finding of the report as what now only 10% of consumers now say, with access to information on price, that they believe instructing a solicitor may be an unaffordable option for them, compared to 50% in the past. The report also found that 77% of the public find information now available online is useful in helping them find and choose potential legal providers. As well as this 29% of firms say they would recommend publishing extra information online to proactively help prospective clients in making a decision.

Paul Philip, SRA Chief Executive, said: “Currently only one in ten people who have a legal issue are going to professional providers such as solicitors for help. We know that a lack of easy to find information about the services law firms’ offer and the cost of those services is part of the problem. So it is really encouraging to see that, although it is still early days, people and small businesses are looking at the information now available and finding it useful, particularly as they think about the type and costs of the service they need. In these difficult times and with more and more of us relying on shopping around online, it is also welcome that many firms see publishing information as an important part of winning new clients.”

Read the full report here. 

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Law Society of British Columbia to Widen Access to Legal Services

On September the 10th the Law Society of British Columbia elected to make changes suggested by a task force on modernisation established this January.

The task force cited ongoing changes in the legal market, which have been accelerated by the ongoing COVID-19 pandemic, as well as the pace of change in other jurisdictions, as to why change was needed.

Recommendations include:

  • evaluate how existing and emerging technologies can better support legal services and address regulatory impediments that exist in permitting their use
  • move to amend regulatory structures to allow for innovation in legal service delivery and alternative business structures while protecting the public
  • re-evaluate current regulations and restrictions on law firm ownership and investment, as well as multi-disciplinary practice and partnership structures to ensure they are not inhibiting innovation
  • advance its initiative on the regulation of licensed paralegals to improve access to legal services
  • regularly reach out to and develop resources to support in-house counsel and government lawyers
  • continue work on Indigenous legal services by understanding where more support is needed and listen to and work with Indigenous peoples to address that need
  • re-consider the accreditation process for lawyers in British Columbia, with special consideration given to how to incorporate more skills-based training into that process

The task force was set up with the following mandate: “Recognizing that significant change in the legal profession and the delivery of legal services is expected over the next five to 10 years, the Futures Task Force will identify the anticipated changes, consider and evaluate the factors and forces driving those changes, assess the impact on the delivery of legal services to the public, by the profession and on the future regulation of the legal profession in British Columbia, and make recommendations to the Benchers on the implications of the anticipated changes and how the Law Society and the profession might respond to the anticipated changes.”

And began the recommendations by saying: “Change is constant in all aspects of our lives, and this is true in the practice of law as well. Client expectations, competition among lawyers and with other professionals, technology, generational expectations, and societal norms all affect what lawyers do and how they carry out their practice in important ways. Society’s expectations of what lawyers do and how they should do it also change. How lawyers keep up with these changes is very important for the availability of efficient and affordable legal services and for the confidence that the public has in the legal profession as a whole, and equally important for the sustainability of their practices and their personal well-being. A legal profession that is incapable of achieving outcomes that resonate with what society expects is one in which the public will eventually lose confidence. ”

Read the full recommendations here (PDF). 

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Law Society of Saskatchewan Makes COVID-19 Rule Changes Permanent

The Law Society of Saskatechewan has announced that the Government of Saskatchewan has repealed emergency regulations surrounding remote execution and witnessing of documents electronically and replaced them with permanent rule changes, which will extend beyond the period of public emergency. The rule changes come about in the light of the increased efficiency and lower cost created by emergency regulations and the use of video witnessing, with the society saying that they are “a significant development in terms of enhancing access to justice in Saskatchewan and will serve to greatly increase the efficiency of many legal processes for lawyers and clients alike.”

The rule changes relate to the remote witnessing of Land Titles, Powers of Attorney and Wills, as well as various other documents.

Read the Law Soceity’s description of the changes, and view the new regulations.

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Arizona to Allow Non-Lawyer Ownership

The Arizona Supreme Court has approved rule changes allowing for non-lawyer ownership of law firms in the state. The rule change comes in the wake of the two-year sandbox announced in Utah, however, the Arizona courts went one step further, opting to make the changes permanent.

The recommendations for the rule change were first proposed by the court’s Task Force on the Delivery of Legal Services, have focused around improving public access to affordable legal services and promoting legal innovation. The changes in state’s rules are set to become effective as of January 1st 2021. The changes include the removal of ER 5.4 the rule barring nonlawyers from fee sharing and barring nonlawyers from having an economic interest in a law firm. As well as this the changes also allowed for the licensing of legal paraprofessionals, as well as changes to lawyer advertising rules.

Arizona Supreme Court Chief Justice Robert Brutinel said of the development, “The Court’s goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices. I thank and commend the Task Force and its chair, Vice Chief Justice Timmer for their groundbreaking work.

Read the full report from the Arizona Supreme Court. 

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Law Society of Singapore Releases First Report on Gender Diversity in the Profession

The Law Society of Singapore has announced the release of “Levelling the Playing Field”, its first-ever report into gender diversity and inclusion in the Singapore legal profession.

The data for the report has been gathered over the course of the past two years and examines the experience of female practitioners across the profession,

The data involved was collected from over 500 female members of the Singapore legal profession, as well as a series of roundtable sessions with participation from (i) female lawyers across all seniority levels; (ii) managing partners, hiring managers, and recruiting partners (both male and female); and (iii) male lawyers.

The report also includes recommendations from the Women in Practice (WIP) Committee on mentorship and sponsorship; flexible work arrangements; training and awareness of unconscious bias; and addressing sexual harassment and bullying.

WIP Committee Co-Chairperson, Simran Toor, says: “More can be done for women lawyers in Singapore, at all levels of seniority and experience. While the data did not reveal any prevalent problems with harassment or bullying, which is encouraging, it did reveal that unconscious bias remains a deeply rooted issue within the legal practice. There are still strong misperceptions that an equal playing field is available to both genders, that progression is purely a function of merit, and that the larger number of male lawyers at senior levels is due to independent choice-making by female lawyers to leave the profession, rather than any form of unconscious bias or inequality.”

Felicia Tan, Co-Chairperson of the WIP Committee, adds: “There is also a lack of understanding on how diversity in the workplace and embracing flexible working arrangements could translate to commercial benefit; with many still believing that diversity initiatives are rooted only in altruism or inconsistent with the ideals of meritocracy. This pandemic has also shown how flexible working arrangements need not undercut productivity. We hope that the contents of this Report will raise awareness of the issues amongst members of the legal profession so that the Singapore legal profession can attract and retain the best talent, both male and female.”

Read the full report here. 

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SRA Review on Cybersecurity

The Solicitors Regulation Authority of England and Wales have published a review of cybersecurity and its relevance to law firms. Looking at how firms handle sensitive client data, and what risks are presented in the forms of cyberattacks. As well as the general ongoing importance of awareness of digital security in the industry, the report is particularly timely and relevant due to the rapid increase in lawyers working from home, as a result of the COVID-19 pandemic.

The report has shown that whilst the vast majority of firms are aware of many of the risks presented by cybercriminals, however, the value of the data they hold means that they are extremely attractive targets to cybercriminals. Similarly, the report suggests that whilst many firms have extremely high levels of technological defence, one of the greatest vulnerabilities can be individual practice and staff awareness.

The report breaks down its findings into five key areas:

• cyberattacks – type, volume and impact – the report found that 3/4 firms had been the target of a cyberattack, with £4million of client money stolen.

• people – what support was provided to staff? – the report found that 60% of firms felt that their biggest vulnerability was the knowledge and behaviour of their staff.

• technology – what controls did firms have in place? – the report found some confusion around technology, however, 93% of firms confirmed they had a firewall in place, and all required all devices to be password protected.

• support – what support did firms use? – the report found that 3/4 of firms relied on commercial IT specialists, the report suggested that more awareness was needed to guarantee quality when engaging third party contractors.

• reporting – did firms meet their reporting requirements? – the report found that 73% of firms who suffered an attack had reported the incident, however, seven significant incidents had not been reported.

The full report and the SRA’s ongoing recommendations around cybersecurity are available here.

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ICLR Annual Conference: Day 4: 29 October

Day 4: 29 October

Sign up here… 

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The final technology breakout for EMEA/APAC, will be called: A Growing Toolbelt: Investigators and technology. (CDT 06:00-07:00 / GMT 11:00-12:00 / KST 20:00-21:00)

Session description:

Given the growing reliance on technology in the legal industry, command of technology has become a requirement of ethical practice, often through explicit incorporation into ethics rules. This session will survey some of the tools at an investigator’s disposal for collecting and examining evidence. Discussion will include: 1) How these tools can be effectively employed; 2) Practical challenges in use (such as lack of experience and budgetary concerns); and 3) Tactical and legal considerations when presenting evidence before the adjudicatory bodies. Participants are encouraged to discuss tools and methods of which other jurisdictions may not be aware.

Speakers:
Co-ModeratorAzadeh Matinpour, Investigative Attorney, Office of Disciplinary Counsel (United States)
Co-ModeratorJoseph Perry, Assistant Disciplinary Counsel, D.C. Office of Disciplinary Counsel (United States)
Prof. Sara Rayment LLB, LLM, BBus, Founder, Inkling Legal Design (United Kingdom)
Iain Miller, Partner, Kingsley Napley, LLP (United Kingdom)

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The conference will then move onto its final theme on putting the public in public interest, the first plenary of the topic will be on: Checks on entry, then what? Assuring ongoing competence throughout legal professionals’ careers. (CDT 08:00-09:00 / GMT 13:00-14:00 / KST 22:00-23:00)

Session description:

Consumers should be able to trust that legal professionals have the necessary skills and knowledge to provide good quality legal services and that these are kept up to date and relevant over time. But do legal regulators currently have the right frameworks in place to ensure those professionals remain competent throughout their careers? This session will explore whether self-assessed, light-touch CPD models need to make way for a more robust approach, such as those used in other sectors like healthcare, aviation or teaching. The panel will discuss:

Understanding consumer expectations of lawyers’ competence and how they can identify good quality services
The ‘lifecycle of competence’
Different approaches used to assure ongoing competence in the legal services sector – CPD, peer reviews, quality audits and more
Comparisons with approaches used in other sectors – how effective are methods such as revalidation or observation and what are the benefits and costs?
What evidence there is to justify a new approach – quality concerns and risks to vulnerable consumers

Speakers:
ModeratorSteve Brooker, Head, Policy Development and Research, Legal Services Board, (United Kingdom)
Margie McCrone, Legal Services Board (United Kingdom)
Kerri-anne Millard, Director, Policy and Outreach, Victorian Legal Services Board (Australia)
Niels Hupkes, Netherlands Bar (Netherlands)
Cori Ghitter, Deputy Executive Director, Professionalism and Policy, Law Society of Alberta (Canada)
Kellie Hamilton, General Manager, Member Knowledge and Learning, Law Institute of Victoria (Canada)

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This will lead into the final Americas/EMEA breakout: Adopting a Restorative Approach to Complaints – the North American Perspective.(CDT 11:00-12:00 / GMT 16:00-17:00 / KST 01:00-02:00)

Session description:

With recidivism rates high, and increased litigiousness on the part of lawyers and the public, is our current system of ‘discipline’ demonstrably providing reliable public protection? Might there be better ways to fulfill our mandate while reducing rather than increasing harm?

This breakout session will explore the concepts, principles, opportunities and challenges of adopting a restorative approach to managing complaints from intake to adjudication, as a building block for proactive regulation, based on the panelists’ experiences with this approach. Participants will be provided a comprehensive and informative paper as well as simple tips to introduce this approach in your own jurisdiction.

Speakers:
Victoria Rees, QC – Professional Regulation Counsel, Pink Larkin (Canada)
Jerry Larkin – Administrator, Attorney Registration and Disciplinary Commission (United States)
Jessica Yates, Attorney Regulation Counsel, Colorado Supreme Court (United States)

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This will then be followed by a second putting the public in public interest plenary session: What do Consumers Want? (CDT 15:00-16:00 / GMT 20:00-21:00 / KST 05:00-06:00)

Session description:

One of the main justifications for regulation is consumer protection, but how can we as legal regulators know if our decisions reflect what consumers want, or best meet their interests? Effective consideration of consumer interests by regulators demands that they engage directly with the public, expert consumer representatives and use creative techniques to investigate consumer needs. These activities should improve the quality of decision-making, help balance competing interests and increase the legitimacy of the regulatory system. This session will explore a range of mechanisms and techniques that can be used to put consumers at the heart of regulation. This panel will discuss: 1) Hearing the consumer voice – consumer panels and more 2) Using consumer principles to develop policy responses through a consumer lens 3) Working effectively with consumer organisations and undertaking community outreach.

Speakers:
Anna Bradley, Chair, Solicitors Regulation Authority, England and Wales (United States)
Catherine Wolthuizen, Victoria Legal Services Commissioner and Board (Australia)
Arthur Lachman, Co-Chair, Future of Lawyering Committee (United States)

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The day will then close off with the final APAC/Americas breakout: In Search of Solutions, not Sanctions: A Look at How Australia Applies Restorative Justice Principles to Legal Regulation. (CDT 21:00-22:00 / GMT 11:00-12:00 / KST 20:00-21:00).

Session description:

Consumers should expect that legal regulation will take a flexible and proactive approach in identifying and dealing with the core issue behind complaints of inadequate or poor service. Regulators should have access to methodologies which engage problem-solving, mediation and the informal resolution of complaints and that have the capacity to re-build the relationship between consumer and practitioner. These same principles can also be found in Restorative Justice techniques, which are commonly used in some jurisdictions in relation to criminal matters.

The objective of legal regulator complaint handling is to try and resolve the dispute in such a way as to assist the parties to understand each other’s perspective and for both to learn something useful as a result of engaging in mediation. Can the principles of restorative justice be applied to legal regulation? Are elements of this approach “hiding in plain sight” in existing regulatory frameworks, or is specific enabling legislation required? What are the risks of such an approach and what are the benefits? The panel will:

Discuss restorative approaches, including exploring the principles of restorative justice
Examine the experience of one legal regulator over 10 years of exploring more restorative ways of responding to consumer complaints
Consider how these principles can be applied to legal regulation and consumer complaint handling, including the skills and processes that are needed to support this approach.

Speakers:
ModeratorFiona McLeay – Victorian Legal Services Commissioner (Australia)
Tina Stagliano, Director Enquiries and Complaints, Victorian Legal Services Board + Commissioner (Australia)
Stan Winford, Associate Director of Research, Innovation and Reform, Centre for Innovative Justice, RMIT University (Australia)

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ICLR Annual Conference: Day 5: 30 October

Day 5: 30 October

Sign up here… 

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Day 5 will include our final consumer-focused breakout for EMEA and the APAC entitled: In Search of Solutions, not Sanctions: The Different European and African Approaches to Applying Restorative Justice Principles to Legal Regulation.  (CDT 06:00-07:00 / GMT 11:00-12:00 / KST 20:00-21:00)

Session description:

Consumers should be able to expect that legal regulation will take a flexible and proactive approach in identifying and dealing with the core issue behind complaints of inadequate or poor service. Regulators should have access to methodologies which engage problem solving, mediation and the informal resolution of complaints and that have the capacity to re-build the relationship between consumer and practitioner. These same principles can also be found in Restorative Justice techniques which are commonly used in some jurisdictions in relation to criminal matters.

The panel will discuss:

The principles of restorative justice and their application to resolving complaints against legal practitioners.
The tools available to regulators to employ restorative justice principles.
Comparative approaches in other professions.
Measuring the success of a restorative justice approach in terms of consumer confidence in the legal profession and regulation.

Speakers:
Dr. Brian Doherty, Chief Executive Officer, Legal Services Regulatory Authority (Ireland)
Dr. Ian Marder, Lecturer in Criminology, Maynooth University (Ireland)
Ger Deering, Financial and Pension Services Ombudsman, FSPO (Ireland)

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The day will then be closed off with the final plenary session, aimed to be timed for maximum global attendance, which will be entitled: Navigating the New Normal. (CDT 08:00-09:00 / GMT 13:00-14:00 / KST 22:00-23:00)

Session description:

Using what we learned from the opening plenary and the breakout sessions, attendees and panelists will distill what the Pandemic has taught them about crisis management, disaster planning and business continuity, and how regulators can plot a better course for the future in our new normal. In this context, how can greater clarity be provided to regulators and those who are regulated, and what cross collaborations are most important in times of crisis, prolonged like this one, or of shorter duration (e.g. with governments and other entities).

Speakers:
Frederica Wilson, Executive Director, Policy and Public Affairs and Deputy CEO, Federation of Law Societies of Canada

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