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Sending the Message: Using Technology to Support Judicial Reporting of Lawyer Misconduct to State Disciplinary Agencies

Despite the strong public interest in effectively regulating lawyers, neither state nor federal courts have developed adequate policies and practices to ensure that lawyers’ misconduct during litigation proceedings is consistently reported to state disciplinary agencies. The reasons for this inconsistency—and the extent to which it should be considered an actual inadequacy and a problem calling for a rule-based solution—have been the subject of active scholarly discussion and debate. In practical terms, however, one contributing factor may be the inherent inefficiencies involved with the current reporting system. These inefficiencies in the judicial reporting process can be substantially mitigated—and regular reporting thereby supported—through the effective use of electronic database technology. For many years now, courts throughout the United States have been using computer and electronic technology, with its continually accelerating capabilities, to improve their processes for receiving, storing and transmitting judicial filings and records. This so-far successful experience with electronic filing and records creates an opportunity for courts to extend these technological breakthroughs to provide logistical support to a much improved system for judicial reporting of lawyermisconduct.

To accomplish this objective, this Article proposes that state and federal court systems create electronic databases, accompanied and supported by uniform court procedural rules and policies, to receive and store judicial reports of litigation-related lawyer misconduct. These databases should be accessible to and searchable by state disciplinary agencies using universal licensing numbers assigned to individual lawyers. To set the stage for this proposal, Part I will examine the history and scope of the ethical code of conduct obligations of state and federal judges to report lawyer misconduct to an appropriate disciplinary authority, as well as reporting pursuant to procedural rules governing civil litigation. Part II will critique the adequacy of the judicial response to these existing reporting provisions, and consider the adverse potential consequences that underreporting may pose to the public interest and to the traditional judicial prerogatives in regulating the practice of law.

Turning to the specifics of the proposed reforms, Part III will recommend how state and federal electronic databases accessible to and searchable by state disciplinary agencies should be organized and structured, and explain the criteria courts should use in deciding when a report is appropriate and how it should be categorized within the databases. Finally, Part IV will offer responses to several procedural questions relating to the implementation of these new reporting systems and databases.

Read the Full Article Here

Michael S. McGinniss, University of North Dakota School of Law

 

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An Australian Study on Lawyer Vulnerability & Legal Misconduct

Vulnerability to Legal Misconduct: Qualitative Study of Regulatory Decisions Involving Problem Lawyers and Their Clients

An emerging body of scholarship discusses ‘vulnerability’ as an antecedent of legal misconduct. One conceptualization of vulnerability indicates that an individual has greater susceptibility to risk of harm, and safeguards may protect against that risk of harm. This empirical study adds to the normative research with a qualitative analysis of 72 lawyers with multiple complaints and at least one hearing, paid financial misconduct claim, or striking from the roll (“problem lawyers”) in Victoria, Australia, between 2005 and 2015 through 311 regulatory decisions. We found that problem lawyers were disproportionately likely to be male, over age 45, and work in a sole or small practice. A quarter of these lawyers suffered from health impairments and among the clients harmed, half had cognitive impairments, were older age, or non-native English speakers. These findings underscore the need to better understand vulnerabilities to promote lawyer well-being, protect exposed clients, and reduce lapses in professionalism.

Access Full Report Here

Authors: 

  • Tara Sklar, University of Arizona – James E. Rogers College of Law
  • Jennifer Schulz Moore, University of New South Wales (UNSW) – Faculty of Law
  • Yamna Taouk, Melbourne School of Population and Global Health
  • Marie M Bismark, University of Melbourne
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40 Percent of APAC in-house legal, compliance professionals find regulations a challenge

Some 40 percent of in-house legal and compliance professionals in the Asia-Pacific region find changing local and global regulatory requirements a major challenge, a new report has found.

The report, titled “Facing the future: Developing a response to regulatory change” was released jointly by TMF Group and Asia Risk. It found that an alarming 57 percent of respondents did not take any action in 2018 to react to regulatory changes, and some 62 percent had no any actions planned for 2019.

The report surveyed more than 100 seniors across the region. It also found that businesses are continuing to struggle with both the amount, as well as the pace of change. On being asked to rate on a scale of 1-10 their confidence in their firm’s ability to remain compliant in 2019, over one-fifth of the respondents valued their confidence at five or less.

“In recent years APAC businesses have had to deal with a huge array of new regulations. Most firms are only now becoming aware of the size of the challenge they pose – but not all have yet managed to adapt. This is a crucial issue for the region’s companies, as failure to comply can have seriously detrimental consequences,” said Leila Szwarc, global head of compliance and strategic regulatory services at TMF Group.

Download the white paper from Risk Library

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Findings From the IBA’s Directory of Regulators of the Legal Profession

IBA’s Directory of Regulators of the Legal Profession

In 2016 the International Bar Association’s Bar Issues Commission published a directory of legal regulators as a resource for the profession. The intention was to identify those who regulate the major stages in the ‘life cycle’ of a lawyer, from qualification/entry to the profession, through ethics and conduct rules to disciplinary matters. The resulting directory indicates those organisations that regulate these different facets of legal practice, with contact information and embedded links to further information.

Which countries does the Directory cover?

The objective of this project was to create a directory/mapping of how legal regulation is conducted around the world. The directory aims to cover the widest range of countries possible and the 163 countries of the WTO were selected as the starting point. However, where the opportunity arose during the compilation of the directory to add additional countries (e.g. Sudan) or sub-national jurisdictions with special status (e.g. Guam and US Virgin Islands), regulatory information on these jurisdictions was incorporated.

Who regulates?

The model of lawyer regulation is set out in legislation in 63% of jurisdictions. Although there are many differences in the way in which regulation of lawyers is carried out in practice in different jurisdictions around the world, there are perhaps five distinct models which are observable:

  • Largely court regulated professions
  • The exclusively bar regulated professions
  • The predominantly or exclusively government regulated professions
  • Legal professions predominantly regulated by independent or delegated authorities
  • Legal professions predominantly regulated on a mixed or shared basis

Table 1: Regulators of Admission

Table 2: Regulators of Practice

Table 3: Lawyer Disciplinary Authorities

Download the Full Report Here

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SRA Report: Technology and Legal Services

Artificial intelligence (AI) will free up solicitors from lower-level work to carry out more complex tasks, a new report concludes.

We have published a paper  which looks at innovations in technology affecting the legal service sector. The report shows that rapid developments in AI will mostly be focused on back-office functions, addressing out the less complex work.

This will allow solicitors to focus on more complex parts of a case or increase their capacity to engage with clients and potential clients.

Using AI for legal services could also see firms reduce their costs as overheads for ‘virtual’ parts of a business are lower. And attitudes about using new technology will change as it becomes more commonplace.

Our paper also outlines the quality of legal work carried out by computers. While it is not 100 percent accurate in various tests, it has never proven any less accurate than work carried out by humans. In some cases, it is more so. However, while in one test it took real-life lawyers 92 minutes to complete a task, AI finished the job in 26 seconds.

Paul Philip, SRA Chief Executive, said: “There is no doubt that new technology has already improved the way legal services work. Latest surveys show that 30 percent of legal work is now delivered online and the business use of emails has speeded up many tasks.

“Our report highlights the potential for technology to add further value in the workplace and we are looking further at how AI can enable the provision of high-quality legal services through the government Pioneer Fund award. Many firms are already exploring the possibilities and I would urge all law firms to consider how technology can help you and your business.”

Various reports have been published elsewhere on the attitudes of the profession towards the use of technology, and other areas of innovation, and the progress that is being made.

We have dedicated pages for those looking to find new ways of working, with the aim of increasing access to justice, competition and choice for clients.

Read the Full Report Here

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The Relevance of FATF’s Recommendations and Fourth Round of Mutual Evaluations to the Legal Profession

More than two hundred countries in the world have agreed to abide by the anti-money laundering (“AML”) recommendations developed by the Financial Action Task Force (“FATF”), which is an intergovernmental organization.

This Article focuses on the potential impact on the legal profession of FATF’s fourth round of mutual evaluations. During these mutual evaluations, which currently are underway, FATF-affiliated countries examine each other’s compliance with the FATF Recommendations and recommend follow-up action. This Article first presents the legal profession-related results from the completed Mutual Evaluation Reports, including case studies from Australia, Canada, and the United States regarding legal profession preparation for their response Mutual Evaluation Reports. As the article documents, many of the completed FATF Mutual Evaluation Reports recommend changes that include requiring lawyers to report suspicious client transactions, greater enforcement of existing lawyer AML rules, and changing the entities that supervise lawyer AML efforts.

The next Part of this Article examines the legal profession AML situation in the Authors’ home countries of the United States and Peru, noting the current or potential impact in these countries of the FATF Recommendations, the FATF Mutual Evaluation process, and lawyer-related money laundering scandals. The final Part of this Article suggests an alternative, education-focused, peer-review approach to the legal profession portions of the FATF Mutual Evaluations that arguably would decrease lawyer facilitation of criminal money laundering activities while better protecting traditional lawyer values that are globally recognized as important components of administration of justice and rule of law systems. Because the regulatory impact of FATF’s mutual evaluations may be much broader than anti-money laundering issues, everyone interested in the topic of lawyer regulation should be aware of the FATF Recommendations and the ongoing mutual evaluation process.

Laurel S. Terry & José Carlos Llerena Robles

Download the Full Paper Here

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Technology and Innovation in Legal Services

This research provides a detailed picture of levels of innovation and use of technology by legal services providers. By focusing on technology as well as innovation, we are able to build our understanding further, following on from our landmark study of innovation undertaken in 2015. 1 The survey captures the attitudes of legal services providers, the benefits providers are seeing from innovation and their perceptions of the main enablers and barriers, including the impact of regulation. Our analysis also uses statistical techniques to identify factors which drive the use of technology and innovation (‘predictors’).

The Legal Services Board (UK)

Full Report Available Here

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Ex Ante Regulation? The Legal Nature of the Regulatory Sandboxes or How to Regulate before Regulation even Exists

Prior to the Global Financial Crisis, financial innovation was driven by so many factors, but the Global Financial Crisis changed the regulatory pendulum, which has swung to deeper regulation and also changed the way we thinking about financial innovation. The financial innovation – with its bright and destructive outcomes – is an integral part of the competition in the financial market. But the race is such that the regulatory authorities are in a rather disadvantaged position if we just thinking of the old fashion regulatory paradigm. In this context, the question is what – new – legal institutions – such as regulatory sandbox – could provide financial stability and a proper legal regulation to unregulated financial products and services.

János Kálmán – Széchenyi István University, Faculty of Law and Political Sciences

Full Paper Available Here

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Legal Profession of China in a Globalized World: Innovations and New Challenges

Legal profession is undergoing fundamental changes; and this is the case not just in established legalmarkets. Based on a state-of-the-art sketch, this paper identifies and analyzes the latest innovation initiatives and alternative business models in China’s legal profession. It finds that, propelled by the market demands and benefiting from technological advancements, the provision of legal services has become highly versatile today, giving rise to various alternative service providers, especially the rapidly rising online legal service portals. Because they are technically not law firms, the exclusivity requirements on lawyer ownership and legalservice provision are not applicable to them. In the meantime, the competition for large corporate clients and lucrative business transactions is fierce and will continue to be so, not only within the club of big Chinese corporate law firms, but also between Chinese law firms and international law firms globally. In this course, some leading big corporate law firms in China are observed to have creatively incorporated key corporate features in running their business and compensating their partners, effectively deviating from the partnership pure legal services regulation. Such market realities question the necessity and effect of the regulatory restrictions on law firm legal form and ownership structure, and calls for an agenda for related research in the future.

Jing Li – Tilburg University, Department of Business Law

Full Paper Available Here

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Developments in the Legal Profession: Lizotte, Alberta and Green and the Growing Power of Privilege and Professional Regulators

This article discusses the implications of three decisions of the Supreme Court of Canada in its 2016-2017 term that touch directly upon the “law of lawyers”, that is, privilege issues and legal professional regulation. Lizotte v. Aviva Insurance Company of Canada and Alberta (Information and Privacy Commissioner) v. University of Calgary reaffirm the significant protection our courts accord to both solicitor-client and litigation privilege, such that a legislative provision will not abrogate the privilege unless it is “clear, explicit and unequivocal” in its intention to do so. In Green v. Law Society of Manitoba, the Court confirmed that, in light of its statutory mandate to protect the public interest in the provision of legal services, a law society has authority to mandate licensees to complete continuing professional development activities, and to enforce this requirement by suspending lawyers who fail to comply. While all three decisions clarify the law, they also raise interesting questions about where the law of privilege is headed, and how professional regulators may respond to this affirmation of their authority.

Brooke MacKenzie – MacKenzie Barristers P.C. | University of Toronto – Faculty of Law

Full Paper Available Here