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

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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