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Enforcing legal conduct to protect quality of legal services

Enforcement of professional codes and laws of conduct is a critical facet of legal regulation. Lawyer misconduct can have severe ramifications for consumers and the wider legal services market, eroding the reputation of the industry and jurisdiction. However, the processes and protocols for reporting misconduct by a legal service provider is often difficult or lengthy leading many to abandon the process.

The various reasons for inconsistency in reporting lawyers’ misconduct during litigation proceedings—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. One contributing factor may be the inherent inefficiencies involved with the current reporting system, which can be substantially mitigated through the effective use of electronic database technology. The successful experience with electronic filing and records in some United States court systems creates an opportunity for courts to extend these technological breakthroughs to provide logistical support to a much improved system for judicial reporting of lawyer misconduct. The creation of state and federal electronic databases accessible to and searchable by state disciplinary agencies would undoubtedly enrich the quality of enforcement in contributing jurisdictions, but expanding such a system to become accessible and searchable for the public would contribute to broader transparency and accountability. We have seen broader integration of technologies in other areas of legal services provision and regulation worldwide, so integrating such technologies into how consumers or other legal professions report misconduct seems a logical next step.

There is another component to enforcement of standards: the people who come forward and report misconduct. The Solicitors Regulation Authority (SRA) has updated its Enforcement Strategy, which explains when and how it would take action against a law firm or solicitor. Within this strategy, the regulator has published proposed changes to the wording of its rules regarding when firms should report cases of potential misconduct to the regulator, as it became apparent that law firms were interpreting the existing rules in different ways. The updated rules emphasise that nobody should face detrimental treatment for making, or proposing to make, a report, following from feedback around concerns that individuals reporting potential misconduct may be victimised. Similar steps have been taken in the Australian system, which has recently taken a tougher stand in relation to reporting misconduct and the #MeToo movement. Such a proactive approach to regulating attorneys in Australia is used as a springboard to discussing the role of proactive regulation of lawyers in advancing public protection.

Of equal importance is that regulators and enforcement bodies remain open to circumstance. In Hong Kong, the Bar recently completed a ruling on aspects of the meaning of “fit and proper”. The case of Re A is a rare example of a barrister’s contested application for admission to the Bar pursuant to s. 27(1) of the Legal Practitioners Ordinance (Cap. 159). The application was dismissed at first instance due to a ruling that the applicant did not meet with standards of “fit and proper” due to a conviction of a criminal offence resulting in a custodial sentence. However, following an appeal, the Court of Appeal taking a more holistic “multi-faceted” approach, allowed the application for admission. In the process, the Court gave general guidance for determining whether (among other things) an applicant with a criminal conviction can demonstrate on the facts that he or she is fit and proper to be admitted to the Bar.

 

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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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Australian Legal Profession and the #MeToo Movement

Following the spread of the #MeToo movement to every industry around the globe, the Australian legal profession is taking a particular strong stand. The country’s defamation laws are notoriously difficult to pursue and are poorly equipped to handle a digital landscape. Solicitors and commentators alike have been quick to comment that these defamation laws are failing women who want to come forward.

Young lawyers have also been quick to point out that sexual harassment is prevalent in their own profession. In 2013, the Law Council of Australia’s National Attrition and Re-Engagement Survey found almost one in four female lawyers experienced sexual harassment. It has been working with the International Bar Association on a global survey of the legal profession to uncover the extent of sexual harassment. “We take it very, very seriously indeed. We are by no means in no state of denial. We recognise that we have a problem and there are many of us determined to stamp it out,” said Morry Bailes, the president of the council.

Asia Pacific lawyers could benefit from no-deal Brexit

If the UK exits the EU without a deal, there would be an end to the current preferential treatment of EU lawyers wishing to practise in England & Wales.

The Solicitors Regulation Authority says that the UK Government has made clear that this would be the case if the UK moves to WTO rules, ending the current legislation which exempts EU lawyers from having to sit the QLTS exam for qualification.

But the SRA is now consulting on a change that would benefit lawyers from outside the EU, by allowing lawyers worldwide to apply for exemption from the QLTS. Exemptions would continue to be granted on a case-by-case basis.

“Whatever the outcome of the negotiations it is important that we are prepared to make sure the transition to any new arrangements takes place seamlessly, with as little disruption as possible to the profession or public. Addressing how non-UK solicitors will qualify in England and Wales in the event a no-deal Brexit is part of that,” said Paul Philip, SRA Chief Executive.

The proposals are only relevant in the event of a no-deal Brexit.

Dentons makes pledge to lawyer wellbeing initiative
Dentons has joined an initiative aimed at driving better mental health and wellbeing in the legal profession.

The global firm has signed up to a pledge designed to address the profession’s troubling rates of alcohol and other substance-use disorders, as well as mental health issues. It’s been created by a working group of the American Bar Association.

“We applaud the ABA for taking this important step to address the challenges of the profession,” said Mike McNamara, Dentons US CEO. “We all know a lawyer or professional who has battled either substance abuse or mental health issues. As legal employers we have an obligation to take concrete steps to improve support for those who are struggling and to foster a healthy work environment.”

Last year, Dentons began offering information and webinars to help lawyers with topics including work-life balance and managing holiday stress; and the firm is currently running a pilot program offering an onsite wellness coach to help address professional or personal issues.

RPC eyes Asia Pacific growth with new HK office
International firm RPC is moving its Hong Kong office to larger premises as it looks to future growth in the region.

The move to one of the city’s most impressive new business hubs – Taikoo Place – gives the firm 50% more space than its current Hong Kong location.

“We have taken a space that will support our plans for further expansion and development in Hong Kong in the coming years. We are excited to be a part of this new development and to be at the heart of a rapidly developing business community. We see this move as integral to achieving our projected growth plans,” commented Antony Sassi, RPC Managing Partner Asia

This article first appeared on Australasian Lawyer. 

New Skills for New Lawyers: Responding to Technology and Practice Developments

The legal profession is facing a convergence of forces, most notably significant advances in the capabilities of technology, economic pressures challenging existing business models and globalisation, that herald momentous change to the practice of law. In Australia the lead in seeking to understand these developments and formulate responses has been taken by the Law Society of New South Wales and its report on the Future of Law and Innovation in the Profession (FLIP). The Law Society conducted a commission of inquiry which culminated in the recognition of skills or areas of knowledge that were identified as essential for the successful future practice of law. In short, this involves two main inter-related streams of knowledge: first, the ability to understand and employ technology, and second a collection of skills that result in a “practice-ready” graduate, namely: • Practice Skills (both interpersonal skills and professional skills) • Business Skills • Project Management • Internationalisation and Cross-Border Practice of Law • Inter-disciplinary experience • Resilience While technology is in many ways the ‘headline act’ there are also a range of other skills that are required because of the changes technology is facilitating and the need for lawyers to focus on what is central to their role or truly provides value to the client. This article discusses and elaborates on the findings of the FLIP inquiry in relation to legal education.

Paper Available Here

Michael Legg, University of New South Wales (UNSW) – Faculty of Law

Governance Gone Wrong: Examining Self-Regulation of the Legal Profession

England and Australia have abandoned self-regulation of the legal profession yet Canadian law societies continue to function on this basis. This article argues that the self-regulatory model on which the Law Society of Ontario (the “LSO”) operates represents an inadequate form of governance in terms of the accountability it yields. When compared to other organizations, including law societies in other common law jurisdictions as well as corporations, the weaknesses in the LSO’s governance model are conspicuous. This article advocates replacing self-regulation in Ontario’s legal profession with a co-regulatory regime. In the absence of such an extensive reform, this article puts forward recommendations for changes to the current bencher model of governance on which the LSO is based including the implementation of bencher expertise requirements and a duty of loyalty and a duty of care to the public.

Paper Available Here

Anita Anand, University of Toronto – Faculty of Law

ICLR 2017 – Panel: “Risk Based Approach to Regulation”

A synopsis of panel session 8, which takes place on 6 October at ICLR Singapore, kindly provided by the session’s  moderator, Victoria Rees.  Conference materials will be made available to ICLR.net members after the conference.

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

Panelists:

  • Scott MacLean, Acting Executive Director, Investigations, Office of Health Ombudsmen, Queensland, Australia
  • Paul Philip, CEO, Solicitors’ Regulatory Authority, United Kingdom
  • Kolantha Sarogenei, CEO, Lockton Companies (Singapore) Pte Ltd., Singapore

With increasing demands and expectations of regulators in an increasingly complex legal services environment, risks to the public, to the profession and to regulators are greater than ever:  For example, we’ve seen the impact of technology on the provision of and access to legal services; the rise in cybercrime; growth in global legal service providers and multi-disciplinary practices; economic downturns; changes in lawyer demographics including an aging population and rural depopulation; etc.  A competent and relevant regulator must stay abreast and, where possible, ahead of these trends in order to prepare the legal profession for changes impacting it, clients and the public.

Those who regulate lawyers and the legal profession have a shared mandate to protect the public and users of the legal services we regulate. It is essential for effective public protection to understand and manage the risks to achieving that mandate, otherwise we are ourselves at risk of losing our respective roles in the regulation of lawyers. Further, by operating in a risk-focused manner, we are better able to target our limited financial and human resources where they will best protect the public, and enhance the trusted reputation of the regulator.

This session is designed to engage the audience in an interactive discussion facilitated by panelists with experience in various forms of risk assessment and management, and risk-based regulation of lawyers. Through our experiential-based stories, we will highlight the benefits, strengths, opportunities and challenges with this approach to legal services regulation, which can take many different forms.

Through this session, participants will learn about the Nova Scotia experience launching its new Triple P (proactive, principled and proportionate) and risk-focused approach to legal services regulation. You will hear about the successes and challenges faced by the Solicitors’ Regulatory Authority as they have led the way in outcomes and risk-focused regulation; you will learn more about the current status of the Appropriate Management Systems approach and risk-based regulation in Australia, within both the legal and medical professional context; and you will hear stories and lessons learned from the perspective of the professional liability insurer for lawyers in Singapore.

To provide more detailed background and resources from these perspectives in advance, each panelist will prepare a paper citing practical and relevant articles, resources and tools. Important take-aways from this session will include: understanding how to identify risks which are impacting and may impact the provision of legal services, and regulation of lawyers/firms/ABS/MDP; how to manage and respond to those risks in a proportionate manner; and how to develop a risk-focused approach to regulation, regardless of the size or complexity of your jurisdiction’s current regulatory framework.

Adopting Law Firm Management Systems to Survive and Thrive: A Study of the Australian Approach to Management-Based Regulation

In Australia, amendments to the Legal Profession Act require that incorporated legal practices (ILPs) implement ‘appropriate management systems’ to assure compliance with the Legal Profession Act 2004, and  appoint a legal practitioner director to be responsible for the management of the ILP.

The new law did not define ‘appropriate management systems’ (AMS) so the Office of Legal Services Commissioner for New South Wales worked with representatives of other organizations and practitioners to develop guidelines and an approach for evaluating compliance. This involved the designated director completing a self-assessment process (SAP), evaluating the ILP’s compliance with ten specific objectives of sound legal practice.

To evaluate the new regulatory regime, Professor Susan Fortney conducted a mixed method empirical study of incorporated law firms in New South Wales Australia. In Phase One of the study, all incorporated law firms with two or more solicitors were surveyed. In Phase Two, legal services directors were interested. This article discusses the survey findings, focusing on the relationship between the self-assessment process and the ethics norms, systems, conduct, and culture in firms.

Fortney, Susan Saab and Gordon, Tahlia Ruth, Adopting Law Firm Management Systems to Survive and Thrive: A Study of the Australian Approach to Management-Based Regulation (January 22, 2013). St. Thomas Law Review, Forthcoming; Hofstra Univ. Legal Studies Research Paper No. 13-02. Read the article at SSRN

The Role of Ethics Audits in Improving Management Systems and Practices: An Empirical Examination of Management-Based Regulation of Law Firms

Using management-based principles, this Article discusses steps to take to encourage ethics audits ‘to merge good ethics and good business’ in the United States of America.

For decades, legal malpractice experts have urged lawyers to implement risk management measures, and legal malpractice insurers have provided audit services and self-audit materials. Under the Australian regulatory regime, incorporated legal practices are required to complete a self-assessment process and to report on the firm’s compliance with ten objectives of sound law practice. The article explains the foundational role that ethics assessments can play in reducing lawyers’ liability while improving the delivery of legal services.

Susan Saab Fortney, The Role of Ethics Audits in Improving Ethical Conduct in Law Firms: An Empirical Examination, 4 St. Mary’s J. Legal Mal. & Ethics 112 (2014)
Read the article at: http://scholarlycommons.law.hofstra.edu/faculty_scholarship/489