Event: Kingsley Napley Spotlight Series – Insights into Legal Services Regulation in 2021: promoting professional behaviours

June; 16, 2021

Online

How can firms better identify behaviours amongst lawyers and staff that pose a risk to its culture and its compliance with SRA regulatory obligations?

Can firms learn to recognise antecedents, structures and behaviours that pose a reputational and regulatory risk and take action to eradicate or at least minimise their prevalence?

In our third and final webinar on entity regulation, we take a close look at four key areas that firms need to have on their radar when reviewing their risk outlook:

• Recognising and understanding the phenomenon of “Groupthink” and the particular risks it poses in the context of law firm culture and compliance;
• Preventing and dealing with allegations of bullying and harassment;
• The concept of fractured cultures: the risks of on-shoring, satellite offices and imported practices; and
• Reducing the risk of behaviours tending towards a lack of integrity and dishonesty.

Our expert panel of speakers will explore and debate these issues, following which we will be publishing a toolkit. This will draw together the practical steps taken from our trilogy of webinars that firms might want to take to ensure that their systems, processes and practices reflect a “good” culture and reduce the risks associated with non-compliance with regulatory obligations.

The panel of experts will be chaired by Iain Miller, Regulatory Partner at Kingsley Napley.

The panel of experts will include:

• Julie Norris – Regulatory Partner at Kingsley Napley
• Kieran Pender – Honorary Lecturer, The Australian National University and Consultant, International Bar Association
• David Gamblin – Lecturer, Department of Organisational Psychology, Birkbeck University of London
• Emily Carroll – Senior Lecturer in Law, Senior Tutor & head of Student Development and Support, Birmingham Law School

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Legal Services Board of England and Wales releases diversity dashboard for England and Wales profession

The Legal Services Board of England and Wales (LSB), which acts as the oversight regulator for professional frontline regulators in England and Wales has released a dashboard of diversity statistics collected from each of the frontline regulators it oversees, alongside the publication of an independent report into regulator diversity. The report was produced by the Bridge Group, an independent consultancy focused on diversity and inclusion, and is focused on evaluating the success of regulatory interventions and the success of evaluative indicators used by regulators following diversity and inclusion initiatives.

Findings from the report include:

  • Legal regulators should use the data they collect about the professionals they regulate to inform and evaluate their diversity and inclusion initiatives.
  • Similar challenges face regulators in other sectors, indicating that the legal services sector is no different to other professional sectors in the slow pace of change in improving diversity.
  • To improve the limited evaluation of initiatives the report recommends the use of the theory of change model, or similar, for a more systematic approach.

Based on the findings of the report the LSB has urged legal regulators to do more to understand what is and is not working in terms of diversity initiatives, in order to encourage greater diversity and inclusion in the sector, as well as focusing on what is making a meaningful difference for professionals and consumers.

The diversity dashboard has been produced to facilitate better information sharing and improve transparency between the regulators. It brings together the latest diversity data collected by the regulators on the people they regulate.  It is now easier to compare different parts of the regulated sector. Data includes the proportion of; women employed, age, ethnicity, disability, sexual orientation and attendance at a fee-paying school. The dashboard will be expanded in the coming months to include information on how the diversity of the professions differ at entry and at senior levels over time.

Dr Helen Phillips, Chair of the Legal Services Board, has said: “The LSB and the legal regulators share the statutory objective of encouraging an independent, strong, diverse and effective legal services sector. However, despite the positive intentions over the last few years, there has been little progress on improving diversity of our sector. On the whole, regulators have been successful at collecting diversity data, however, data is not an end in itself. Understanding what initiatives have the greatest impact is essential if we are to see a radical change in the diversity of the legal profession. Evaluation must be a core part of deciding which regulatory interventions to make. The Independent Bridge Group report that we commissioned highlights that there has been little collaboration on diversity and inclusion. We want to help change that and a key part of our approach will be to work with regulators to encourage information sharing and cohesion to address these sector-wide issues. It is clear that the challenges we face are so complex and far-reaching that tackling them requires a concerted effort. By collaborating with others across the sector, we will support a profession that reflects the society it serves and that meets consumers’ differing needs.”

Read the full report here, or view the diversity dashboard here.

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California State Bar Board of Trustees approve updated law school accreditation rules

At its meeting on May 13, 2021, the California State Bar Board of Trustees adopted new accreditation rules for California accredited law schools. The new rules will come into effect on January 1st, 2022, with law schools required to demonstrate compliance by January 1, 2024, and are designed to incorporate best practices and provide a framework to recognise law schools that are accredited by regional or national accreditors. As well as these rules aim to focus accreditation on its essential purpose, rather than creating extraneous requirements.

Donna Hershkowitz, Interim Executive Director of the State Bar has said.“This effort is the latest example in the State Bar’s many efforts to broaden access to quality legal education in our diverse state. The new accreditation rules will ensure that law schools and the State Bar are focusing on what matters most to ensure positive student outcomes and ultimately support our efforts to protect the public.”

California is one of the few states in the USA that permits accreditation other than by the American Bar Association (ABA), and offers more separate pathways into qualification as a lawyer than any other state. Currently, nearly two dozen law schools are directly accredited by  the California Bar, with the goal of offering accessible, affordable, and flexible options for law students.

The revised rules further four key purposes for accreditation of California law schools:

  1. Consumer protection and transparency;
  2. Student success;
  3. Diversity, equity, and inclusion; and
  4. Preparation for licensure and professionalism.

The approval of the rules, which comes as a culmination of two years of work by the Committee of Bar Examiners and the Committee of State Bar Accredited and Registered Schools. The aim of the reforms is to create a clear, understandable public protection framework for accreditation in keeping with the State Bar’s mission. Each provision in the revamped rules describes a specific, measurable action designed to fulfill one or more of these purposes. Prior accreditation requirements that did not further any of these specific purposes were eliminated, and new requirements were added to ensure that schools are meeting these goals.

Read more about the Board of Trustees meeting here, or read the new rules here.

 

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American Bar Association releases new report on the challenges faced by female lawyers

A newly released American Bar Association (ABA) report entitled, “In Their Own Words: Experienced Women Lawyers Explain Why They Are Leaving Their Law Firms and the Profession,” aims to shed light on factors that affect career decision making amongst experienced female lawyers.  This includes information on why practitioners choose to remain in practice, move to a different job within the law or step out of the profession altogether after 15 or more years of practice.

The report was written by Joyce Sterling, a professor at the Sturm College of Law in Denver, and Linda Chanow, executive director of the Center for Women in Law at the University of Texas. The report includes analysis on the components that advance or impede long-term careers for female lawyers. The research was carried out via focus groups in six cities across the USA, as well as through individual interviews, with comments made during the interviews including:

“You give me the hardest problems to solve, but you tell me I am less important with the compensation you give me.”

“I don’t feel like I have anyone in a position of power who can personally relate to me.”

“[T]he power dynamic is very real. . . [P]eople are very uncomfortable when women lean into their power.”

The report includes recommendations designed to increase retention of female attorneys which include:

  • Assess the impact of firm policies and practices on female lawyers.
  • Take steps to ensure there is a critical mass of female partners on key firm committees.
  • Increase lateral hiring of female partners.
  • Provide resources to relieve pressures from family obligations.
  • Be flexible to support changing practices.

ABA President Patricia Lee Refo has said.“This report highlights the ongoing systemic barriers women still face in the legal profession. These women’s personal stories are eye-opening, and the recommendations illustrate the changes we need to make to support and advance all female lawyers.”

Read the full report here, or read more here.

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State Bar of California provides grants to twenty legal services organizations to hire provisionally licensed lawyers

The State Bar of California has selected the first 20 legal services organizations which will receive grants to hire provisionally licensed lawyers (PLLs) in 2021–2022. The grant-giving programme is designed to allow legal aid organisations to augment their staff, and is part of the Bar’s ongoing effort to address unmet legal need amongst low-income Californians, improving access to justice. The grant is funded by legislation that added an optional $5 donation, as part of the annual California attorney licensing fees.

Contributions are currently projected to total about $1.4 million in 2021–2022, and the awardees were selected by the Legal Services Trust Fund Commission as part of a competitive selection process. The average award is for 12 to 13 months. Of the PLLs to be hired, 17 will collectively serve 43 California counties, at least 30 of which are rural or have relatively few legal aid resources. Three PLLs will support services offered statewide. The majority are expected to help meet legal needs in rural areas and provide legal services related to COVID-19 or natural disasters.

The PLL programme was approved by the California Supreme Court in July 2020 in response to the pandemic, the provisional licensure program provides a limited license to practice law under the supervision of a licensed attorney. The program enabled recent law graduates to begin practice without taking a bar exam. To date, nearly 850 provisionally licensed lawyers have been approved for the program, which will terminate June 1, 2022, unless extended by the Court.

Donna Hershkowitz, Interim Executive Director of the State Bar has said.“These grants provide a powerful dual benefit: expanding the reach of these legal aid organizations when the needs are greater than ever and offering meaningful public interest jobs to new provisionally licensed lawyers. We are grateful to the thousands of licensees whose contributions made these grants possible.”

Read more about the programme and view all the organisations who received an award here. 

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Nederlandse Orde van Advocaten unveils website to allow consumers to easily access disciplinary rulings

The Nederlandse Orde van Advocaten (NOvA)  has created a website designed to allow consumers to easily access disciplinary rulings. The new feature has been launched as part of the ‘Find a lawyer’ search engine, which allows a litigant to better identify legal counsel. The website had previously shown indicative information about lawyers possibly facing a disciplinary decision, however, the website now includes a feature that allows users to click directly from a lawyer’s profile to access the full ruling of the court and or disciplinary board in relation to a lawyer.

The  zoekeenadvocaat.nl (find a lawyer) which was launched in 2019, provides consumers with the basic information on all lawyers in the Netherlands including contact and address details in registered jurisdictions, membership of specialist associations and whether the lawyer hears cases on the basis of legal aid. If a lawyer is suspended at that time, this is also clearly indicated. Lawyers who have been disbarred are completely removed from the search results.

The results previously contained a short description of any disciplinary decisions where a suspension or cancellation measure has been pronounced. However, it is now also possible to click on the relevant disciplinary decision and read the full decision directly on tuchtrecht.overheid.nl . This provides the litigant with easier access to disciplinary information, giving consumers better access to information when making a decision.

View the find a lawyer search engine here, or read more about the changes here. (Both resources in Dutch, but available via Google Translate)

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Illinois Supreme Court Commission on Professionalism: five ways to improve well-being in the legal profession

Stephanie Villinski, Deputy Director of the Illinois Supreme Court Commission on Professionalism, has released her take on improving lawyer well-being, based on ‘The Future Is Now: Legal Services conference’, which is the Commission on Professionalism’s annual future law event.

Ms. Villinski reflects on the fact that many of the changes that can have the greatest impact are in fact simple and easily implementable. With not all changes requiring a major change.

Her recommendations include:

  • Improving practitioner awareness around legal assistance programmes
  • creating clear KPIs and success measure
  • creating cultural shifts, and
  • encouraging professionals to lead by example

Read more about the conclusions and the conference here. 

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Bar Standards Board publishes independent review of 2020 qualifying exams

The Bar Standards Board (BSB) has published the results of an independent review of the August 2020 Bar Professional Training Course (BPTC) exams, the exams used by the Board as part of the qualification process for barristers. The review was commissioned by the BSB in November 2020 and was conducted by Professor Rebecca Huxley-Binns, the Pro-Vice-Chancellor (Education) of the University of Hull and Dr Sarabajaya Kumar, an interdisciplinary social scientist based at University College London, who is also an equalities consultant and a disability activist.

The Review found that candidates experienced a number of different challenges, including difficulty in changing to computer-based assessments and challenges related to online proctoring,  when sitting the examination remotely in August 2020, due to a variety of different factors. Based on these the review makes a number of recommendations, which have been collated by the BSB into an examination action plan, designed to ensure that changes are actioned.  The Action Plan is grouped into five main themes and includes measures to:

  • improve the BSB’s communication and engagement with students and training providers;
  • make the centralised assessments more accessible and inclusive, particularly when candidates require reasonable adjustments;
  • make the BSB’s approach to policy and process development in this area more inclusive by improving the regulator’s engagement with key stakeholders;
  • introduce a critical incidents policy and improve data protection and project management;
  • clarify the roles and responsibilities of the BSB and training providers in the management of the centralised.

Responding to the Review, the Chair of the BSB, Baroness Tessa Blackstone, said

“First and foremost, I should like to apologise again to all those students who faced difficulties completing their exams last August. The BSB had to move from pen and paper based assessments delivered by training providers to arrange computer based assessments in a very short period of time in the middle of a global pandemic. Ordinarily, such a change would have taken at least 12 months to plan and to pilot. I am pleased that the report finds that the BSB was right to seek to offer computer based assessments and right to contract with Pearson VUE to deliver the exams, including to run remote proctoring for the students sitting the exams online and to book testing centre spaces for students unable to take the exams remotely. Around 75% of BPTC exams were completed but far too many students faced difficulties which should never have occurred. The BSB’s staff worked very hard to implement the new arrangements for the exams but we very much regret that many students had a difficult experience both in booking and sitting the exams. The Board has welcomed the Review by Professor Huxley-Binns and Dr Kumar. It has approved the Executive’s proposed Action Plan and will ensure that the Review’s recommendations are put into effect. The Board has discussed the Action Plan with Professor Huxley-Binns and Dr Kumar and they fully endorse the Plan as meeting the recommendations in their Review. I am pleased that the Review found no failure of governance. The Board is determined to ensure that the BSB learns the lessons for the future. Those lessons will be of great help to the BSB and to future students. We are very grateful to all those who have contributed to this Review and I should like once again to repeat my apology to those who had difficulties last August.”

Read the BSB’s comments here, or read the full review here.

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Law Society of Scotland survey finds support for increased use of remote civil hearings

A newly released survey of Scottish solicitors, by the Law Society of Scotland, has found that more than three-quarters of respondent think that aspects of remote civil court work should continue post-pandemic. The results found that the majority of civil court practitioners have indicated that they think remote hearings work well for procedural and uncontentious matters, however far fewer of the survey respondents thought that more complex hearings should be carried out remotely.

The survey found that:

  • 78.5% of respondents said they would like remote court hearings to continue after the pandemic. Of those, 91% said they thought procedural hearings worked particularly well, and almost all, at 99%, saying they would like to see them continue remotely.
  • However 5% thought proofs, a civil court hearing which is determined by a judge or sheriff, and 3% thought evidential hearings, such as a tribunal, worked well remotely. A quarter of respondents thought first instance debates worked well.
  • 32%, stated that they had no practical difficulties when participating in remote hearings, however 45% found it challenging to obtain clients’ instructions during remote proceedings. 41% of respondents thought that their clients struggled to either understand or participate and almost a quarter of solicitors, at 23%, found it more difficult to articulate their position.
  • The vast majority of respondents at 91% indicating that it saved travel time, 75% that it saved waiting time, 69% that it reduced costs and over half, at 55%, said it was more efficient than being personally present in court.
  • Concerns were raised in relation to the difficulties in assessing witness credibility and reliability remotely and respondents also said the lack of opportunity for proper face-to-face interaction with other agents, witnesses, and with sheriffs and judges, hindered effective participation. There were also issues with clients feeling disengaged from proceedings and problems with technology, including access to suitable devices and connectivity issues.

Amanda Millar, President of the Law Society of Scotland, said: “Covid-19 has instigated enormous change in the way we all work over the past year. The legal profession has adapted to this rapid change, however examining what has and has not worked well in relation to online proceedings will be essential as we begin to look at how civil courts should operate post-pandemic. We can draw useful insights from the survey findings and they will be helpful in considering what aspects, if any, of remote hearings could or should be incorporated into the civil court procedure longer term. While many of our members have indicated that remote hearings should continue in some form, there should be provision for in-person hearings, particularly in relation to more complex cases, but also for procedural hearings when required.”

Read more about the survey and the results. 

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Institute for the Advancement of the American Legal System releases guides to cut through bias in legal hiring and improve legal education outcomes

The Institute for the Advancement of the American Legal System (IAALS), has released two new guides designed to explain innovative ways for legal educators and legal employers to implement data-driven, outcomes-based standards underpinned by IAALS’ Foundations for Practice research. The guides are based on  a survey of 24,000 lawyers and working sessions with 36 employers and 4 law schools and aim to provide law schools with a path to train better lawyers and employers a path to hire and retain the best lawyers.

Logan Cornett, IAALS Director of Research has said “The Foundations guides are a natural continuation of Foundations for Practice, launched in 2014. We conducted the largest study of its kind to identify the characteristics, competencies, and skills—what we call foundations—that new lawyers need to be successful. Now, as our country reckons with systemic racism, implicit bias, a shifting economy, and lack of access to justice, the Foundations data and tools provide new ways for the legal profession to rise to the occasion.”

By targeting both legal education and legal employment, Foundations aims to implement wholesale reform. The IAALS has identified what it sees as a cycle of tradition: teaching classes the way they always have been taught and hiring lawyers based on where they went to law school and their class rank. The empirical research of Foundations provides pathways for schools and law firms to evolve and better ensure the success for all new lawyers, but especially for those who are less advantaged because of race, gender, or socioeconomic background.

The Foundations Instructional Design Guide is for educators who want to improve their curriculum by designing and implementing learning outcomes and standards-based assessments. Through close review of course objectives, defining desired learning outcomes from students, and assessments.

The Foundations Hiring Guide is for employers who want to improve their hiring practices—to improve quality, retention, and diversity. Through close review of hiring criteria, designing objective ways to assess candidates for hire, and creating accountability measures.

Read more about the guides here, or access the instructional design guide, or the hiring guide.

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