In her recent blog, the Chair of the Legal Services Board, said that the regulatory bodies in England and Wales should do more to get a grasp on diversity data. The blog was published after the latest Board meeting and notes that in January the Board agreed with regulators to assess their performance on gathering diversity data about their regulated community. The blog notes that the results were disappointing with only three of the regulatory bodies (SRA, BSB and ICAEW) able to demonstrate a comprehensive understanding of the composition of their regulated community, and no regulators being able to demonstrate that they currently have a comprehensive understanding of whether their disciplinary/enforcement procedures disproportionately impact certain groups.
The Board has said that there are shortcomings in the collection of diversity data across the sector and there is also no consensus on what types of interventions have been successful to meaningfully improve diversity across all the protected characteristics and is calling for better data collection across all regulators.
Dr Helen Phillips, chair of the board has said the LSB will help regulatory bodies collect and evaluate the right data to show which interventions have worked. Her organisation will also review the performance framework next year to best measure how regulators are faring.
Read the full blog.
A study carried out by the ABA in collaboration with the Burton Blatt Institute at Syracuse University has found that lawyers who either identify as having disabilities or who identify as LGBTQ+ commonly report experiencing both subtle and overt forms of discrimination at their workplaces.
The study surveyed 3,590 lawyers, including individuals from every state and the District of Columbia, and was conducted over the course of 2018 to 2019. The study examines individuals with multiple identities that intersect, such as people of differing sexual orientations and gender identities who also have disabilities.
ABA President Judy Perry Martinez has said that the“study is an important first step in working towards a more inclusive and better legal profession by identifying bias and stigmas against LGBTQ+ lawyers as well as lawyers with disabilities. The ABA remains committed to its core goal of eliminating bias and enhancing diversity. Discrimination against people with disabilities and LGBTQ+ individuals, whether structural or unintentional, needs to be eradicated.”
Among the key findings of the study were:
4 of 10 respondents reported perceptions or experiences of subtle but unintentional biases. 1 in 5 respondents noted the experience of subtle and intentional biases.
Approximately 16.6% of the lawyers responding identified as lesbian, gay or bisexual, and 0.4% identified their sexual orientation as open. Of 67 lawyers who were women and identified as LGB with a health condition, slightly more than half reported they had experienced discrimination in their workplaces.
Read the full ABA report.
On the 15th July, the American Bar Association Standing Committee on Ethics and Professional Responsibility released guidance that expands on a model rule that covers a lawyer’s conduct related to harassment and discrimination.
ABA Formal Ethics Opinion 493 outlines how ABA Model Rule of Professional Conduct 8.4(g) addresses actions by a lawyer beyond the courtroom and the context of client representation. This could include operating an office or behaviour at bar association or other business and social events when they are related to the practice of law.
The rule makes it professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination based on various categories, including sex, race, religion, sexual orientation and gender identity. The rule is broader than federal anti-discrimination laws because it also covers conduct that is not severe or pervasive, a standard often utilized for employment discrimination.
The formal opinion notes that most free speech is protected, but the rule is violated by harmful conduct, which “will often be intentional and typically targeted at a particular individual or group of individuals, such as directing a racist or sexist epithet towards others or engaging in unwelcome, nonconsensual physical conduct of a sexual nature.” It said the rule is “critical to maintaining the public’s confidence in the impartiality of the legal system and its trust in the legal profession as a whole.”
Read the formal opinion and the model rule, or read the ABA’s statement on the new guidance.
The Legal Services Consumer Panel has published a report on consumer decision making. The research shows that consumers indicators such as length of practice and website design when making their decisions.
The Panel has called for independent information to be provided to consumers, with information including transparent costs and previous client reviews and testimonials.
Sarah Chambers, Chair of the Legal Services Consumer Panel, said:
“There has been a patent lack of strategic direction and a sluggish pace in addressing consumers’ need for reliable, comparable quality indicators, almost four years after the Competition and Markets Authority’s findings that lack of information on price and quality hampered competition.
Legal service regulators must now respond by doing two things. Firstly, they must work towards a clear strategic goal of establishing a sector-wide framework for quality indicators. This framework should be rooted in an articulation of what good looks like for consumers. Secondly, regulators must accelerate their pace in this area. The CMA is scheduled to reassess the sector at the end of the year. If they find that little to no progress has been made on this issue, this could create a reputational risk for regulators as it might suggest that consumers are not at the heart of regulation. And of course, consumers will continue to be left without the basic information they need to choose a lawyer.”
Read the full LSCP report
Recently the LSCP has also joined calls for ongoing competence assessments of legal professionals, writing to the LSB to advocate for the move.
Read the LSCP’s letter.
At its July 16 meeting, the State Bar Board of Trustees approved a plan aimed at improving equity in the attorney discipline system, following up on the bar’s first-ever study on racial disparities in the disciplinary system. The first group of reforms aim to expand representation by counsel when an attorney faces a disciplinary investigation.
“The State Bar is moving forward with concrete, specific actions that we believe will not only target the disparities noted in Professor Farkas’s research, but also make the discipline system work better for everyone.” said Donna S. Hershkowitz, Interim Executive Director.
The study found that lack of representation by counsel during an investigation into an attorney by the State Bar was a statistically significant predictor of later discipline, the report also revealed that African American respondents were represented by counsel about half as frequently as other groups in the study.
The State Bar has said that they will:
- Measure and report data on representation for attorneys in the discipline system;
- Pilot-test messages informing respondent attorneys of the value of representation by counsel in disciplinary proceedings to evaluate the most effective method of encouraging representation; and
- Work with the Association of Discipline Defense Counsel to develop and distribute a roster of attorneys who could provide low-cost and pro bono case evaluations to respondent attorneys.
Read the full report, or read the State Bar Association’s announcement about the changes.
In February 2016 the Victorian Legal Service Board and Commissioner entered into a research partnership with the University of Melbourne. The project was designed to help identify risk patterns and predict areas of concern within the Victorian profession. The study focused on 10 years of regulatory data on complaints (2005 to 2015) and looked at lawyer vulnerabilities and misconduct.
In April this year, lead researcher Dr Marie Bismark, published the results of that study in the International Journal of the Legal Profession.
The research paper ‘Vulnerability to legal misconduct: a profile of problem lawyers’ is now available.
Read the Board’s statement.
The Institute for the Advancement of the American Legal System (IAALS) has released the findings of its new report into public confidence in the courts. The report comes as the culmination of an ongoing project which has had the following objectives:
- Conduct exploratory research to facilitate a deeper understanding of how the public views the justice system and what drives public perceptions and attitudes.
- Identify opportunities for additional research and advocacy that can help legal system stakeholders re-earn the trust and confidence of the public.
- Curate outside perspectives from legal system experts to explore unique facets of the issue of public trust and confidence in the system.
- Inform other IAALS’ user-focused research and projects.
The report has suggested that public confidence and trust in the courts is currently low, with the suggestion that many participants saw the value of the court system, but felt they had limited access, and little understanding, effectively shutting them out.
Read the full report.
2Civility, the communications arm of the Illinois Supreme Court Commission on Professionalism, has released a new video in its series on reimagining the law. The video features an interview with Catherine Marienau, Professor Emerita at DePaul University, discussing experiential learning and its use in CLE, particularly with regard to online learning.
Watch the video.
The Law Society of Saskatchewan has released a new episode of its Legal Skies podcast, outlining the ongoing changes to legal education in Canada, as well as the impact that the COVID-19 pandemic has had and will have on education and training. The podcast features Dr. Kara Mitchelmore of the Canadian Centre for Professional Legal Education (CPLED), and features discussion about the new practice readiness education programme, as well as ongoing issues around remote learning and assessment.
Listen to the podcast.
The Candian Bar Association has launched a survey to gather information about the impact of the COVID-19 pandemic on young lawyers and students. Anecdotal evidence gathered by the association has suggested that early-career lawyers have been disproportionately adversely affected by the pandemic, finding it difficult to get work experience, find first jobs or articling positions. Many have also raised the issue that they are losing access to valuable learning opportunities through remote working.
The survey has been set up to gather further data around the issue, to allow the association to begin to address the issue.
View the Bar associations comments about the survey.