ICLR 2019: Consumer interest in regulation

The following content has been provided by the panel presenting on this topic during the afternoon on Day 2 of ICLR 2019.

Synopsis

This workshop will consider the following issues and topics:

  • Consumers v clients
  • Regulation, regulators and the regulated
  • Empowering consumers
  • Ethical questions and challenges for regulators, including NDAs

Presented by:

Michael Clancy OBE, Director Law Reform, Law Society of Scotland

Jolyon Maugham QC, Good Law Project

Sheila Kumar, Chief Exec, CLC

Why is this session of particular interest and to whom?

NDAs are highly topical – use of them by Weinstein/ Labour Party (UK political party) and a proposed crackdown on their misuse (particularly in employment disputes). Challenge for regulators is what to do about them – are the levers at hand sufficient? Should powerful entities use them to intimidate and coerce those less powerful into silence?

What do you hope to achieve with this session?

Lively debate about consumer/client dichotomy; how it all impacts regulation, regulators and the regulated.

 

See the full conference programme

ICLR 2019: Review of the BSB Handbook (Code of Conduct) – Show us how to do it!

The following content has been provided by the panel presenting on this topic during the afternoon on Day 2 of ICLR 2019.

Synopsis

Of interest to everyone who has recently, or who is thinking of, reviewing their code of conduct.  Recent experience: The UK Solicitors Regulation Authority has recently reviewed their rules, as has the Californian Bar.  This is interesting because of the potential tension between the opinions of the profession and the wider public interest including variation of approaches to ‘best regulatory practice’.

Speakers

Dr Vanessa Davies (DG, Bar Standards Board), Ewen MacLeod (Director of Strategy and Policy Bar Standards Board), Dr Michael Jampel (Head of Policy and Research Bar Standards Board), Iain Miller (Kinglsey Napley; Chair of ARDL)

What particularly do you hope to explore in this session? 

What is regulatory best practice with respect to:

1) process of reviewing codes of conduct/introducing change: bringing the profession with you while not allowing their voice to dominate; obtaining the views of the public (workshops, surveys, consultation documents?); hence the legitimacy of the outcome

2) substance: what is the code actually for/who is the audience?  Should it be principles-based/outcome-focused/ detailed rules covering every/all main possibility(ies)

3) accessibility: digital first? What else can we do to make it more accessible?

What do you hope to achieve with this session?

Gain insight; what traps to avoid/ “I wish we had known this when we started”

Useful documents/background reading for context

Our (very high level) Call for Evidence

Our current code of conduct (“Handbook”) (but it’s 250 pages, so we don’t expect you to read it!):

Anything you would like to ask the regulator community in advance of the session to inform the content/preparation?

Have you recently/are you planning to review your code of conduct?

Which of the above questions would be of most interest to you to discuss in the session (process, substance, accessibility)

 

See the full conference programme

International Network for Delivery of Regulation (INDR) Conference

23 Oct 2019, 10:00 – 25 Oct 2019, 16:30

University of Oxford

INDR will host a three day conference covering issues such as the regulation research, the regulatory delivery model, and ethical business practice and ethical business regulation.

The price of the conference is £80 per day (£240 for all three days) for INDR Members and £100 per day (£300 for all three days) for non-Members.

Programme and registration details

Joint CCBE-FBE Conference on Self-Regulation & Quality in the Legal Profession

25 October 2019

Lisbon, Portugal

The conference will be an opportunity to remind participants of the role and importance of self-regulation for the independence of the legal profession and to discuss the interplay between quality and regulation within the profession:

  • How can citizens be guaranteed high quality legal services?
  • How can their interests be protected and best served?
  • How can their legal needs be met while ensuring the application of appropriate rules

Save the date: registration information to follow

More information

FATF guidance for legal professionals

The Financial Action Task Force (FATF) has produced risk-based approach (RBA) guidance to help legal professionals design effective measures to manage money laundering and terrorist financing risks.  The guidance is also aimed at supervisors of legal professionals, highlighting the importance of supervising the RBA.

The FATF developed this non-binding guidance with input from the legal profession, including through a public consultation in March 2019. This guidance replaces the 2008 version.

Download the guidance

The Federation of Law Societies of Canada working with government in the fight against money laundering and terrorist financing

The regulators of the legal profession in Canada and the Canadian government have embarked on a new chapter in the fight against money laundering and the financing of terrorist activities. Late last Spring Canada’s Minister of Finance announced the creation of a joint working group comprised of representatives of the government and the Federation of Law Societies of Canada. The working group, which held its first meeting at the end of June 2019, is intended as forum to explore issues related to money laundering and terrorist financing that may arise in legal practice and to strengthen information sharing between the regulators of the legal profession and the government of Canada. The group, co-chaired by an official of the Department of Finance and the Federation’s Executive Director of Policy and Public Affairs, will meet quarterly.

The creation of the joint working group follows a decade-long legal battle in which the Federation argued that attempts to subject members of the legal profession to the government’s AML regime interfered with solicitor-client privilege and the duties owed by legal counsel to their clients. A February 2015 decision from the Supreme Court of Canada upheld the Federation’s arguments finding that as applied to members of the legal profession, the AML regime was unconstitutional.

Canada’s legal regulators have engaged for many years in regulating the risks of money laundering and terrorism financing in the practice of law. Two model rules, aimed at limiting the handling of cash by members of the legal profession and ensuring legal counsel engage in due diligence in identifying their clients, have been the cornerstone of the regulators’ anti-money laundering and anti-terrorism financing initiatives. The Cash Transactions Rule was adopted in 2004, and the Client Identification and Verification Model Rule was adopted in 2008. Both were implemented by all Canadian law societies. Those rules were updated with amendments adopted by the Federation in late 2018. A new Model Trust Accounting Rule that restricts the use of the trust accounts of members of the legal profession as part of the law society regulations aimed at fighting money laundering and terrorist financing was adopted at the same time.

In the years following the court victory, the Federation encouraged the government to recognize the regulatory initiatives of the Law Societies and to see the regulators as partners in the fight against money laundering in Canada. Faced with criticism from the Financial Action Task Force over the exclusion of legal counsel from the legislative AML regime, the government was initially focused on the suggestion in the Supreme Court’s decision that it might be possible to develop constitutionally-compliant AML regulations governing members of the legal profession. The new joint working group and the discussions leading to its creation mark a significant shift in the government’s approach to this issue. The government has made it clear that it is interested in working closely with the Federation and the law societies on the anti-money laundering file indicating an understanding of the unique position of the legal profession and the duties that members of the profession owe to their clients.

It is expected that officials from Canada’s financial intelligence agency (FINTRAC) and federal law enforcement agencies will join representatives of the Federation and the Canadian departments of Finance and Justice on the joint working group. The next meeting of the working group is scheduled for November 2019.

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

State Bar of California seeking public comments on regulatory reforms

The State Bar of California is seeking public comment on proposals for regulatory reform put forward by the Task Force on Access Through Innovation of Legal Services. The task force was set up to improve access to justice through regulatory reform, following a report in 2018 that suggested that regulation was limiting innovations which could improve the public availability of legal services (report available here). The task-force has unveiled sixteen concepts for regulatory reform, including allowing non-lawyers to hold financial interests in a  legal practice, and permitting fee-sharing between lawyers and non-lawyers. The Bar has now opened the options up to comment and they would appreciate the views of foreign regulators on their proposals.

The consultation closes on the 23rd September 2019. Full details of the consultation are available here.

LSB updates governance rules to “enhance regulatory independence”

A new set of rules have been released by the Legal Services Board (LSB), which aim to clarify the separation between representative bodies and their regulators. The internal governance rules (IGRs) have been published following a series of public consultations that first began in November 2017. The rules which were released by the oversight regulator provide and define the relationship between the approved regulator and the regulatory body can be viewed here. Legal regulators now have one year to implement changes to bring themselves in line with the new rules.

ICLR 2019: Regulating in Uncomfortable Spaces

The following content has been provided by the panel presenting on this topic during the afternoon on Day 1 of ICLR 2019.

Synopsis

As recent events have shown, regulating the conduct of lawyers who serve as elected politicians or in public office, as well as those who provide legal services to others in public office, is a minefield. It is a challenge to properly balance the interests of the public, lawyers and the administration of justice when potential ethical violations occur.

This workshop will be of interest to those involved in the regulation of lawyer conduct, those who help develop Law Society policy and rules, and those who prosecute or defend lawyers who are the subject of investigations who serve in public office or provide advice to those in public office.

The workshop will highlight a number of cases in various jurisdictions where such lawyers have been the subject of complaints, and how these jurisdictions have balanced the various interests to determine an appropriate outcome.

Speakers

Moderator: Victoria Rees, Director of Professional Responsibility, Nova Scotia Barristers’ Society

Panelist: Ellyn Rosen, Regulation and Global Initiatives Counsel, ABA Center for Professional Responsibility

Panelist: Rebecca Magorokosho-Musimwa, Regulatory Services Manager, Law Society of Zimbabwe

Panelist: Ian Miller, Partner, Kingsley Napley LLP, London, UK

 

What particularly do you hope to explore in this session?  Any specific questions you hope to answer?

This workshop will provide practical case-based guidance (including a take-away you help develop) on:

  1. What factors should regulators consider when assessing risk and determining when/ whether to take action in these circumstances?
  2. How can regulators effectively balance all relevant interests when engaged in these assessments/investigations?

 

What do you hope to achieve with this session?

This session will be conducted in workshop fashion, with significant engagement and input from the audience to create, during the session, a useful tool/checklist of factors to consider when dealing with similar complaints and the conduct of lawyers in public office or providing advice to those in public office.

See the full conference programme