Victoria Legal Services Board recommends significant changes to CPD

On the 25th November, the Victorian Legal Services Board and Commissioner (VLSB) released the findings of an independent review into Continuing Professional Development (CPD) in Victoria. The review was conducted by independent consultant Chris Humphreys and involved interviews with over 170 organisation and individuals about how the system in Victoria could be improved, enabling the legal profession to have meaningful, relevant and accessible learning opportunities that enrich the quality of legal services provided to the Victorian community.

The review concluded that while the CPD system is not broken, it needs improvement to reflect more contemporary approaches to adult learning and professional development. Saying “The reverence for knowledge espoused, and genuinely felt, by many in the profession focuses on the acquisition of knowledge about the content of the law. While this focus is valuable, it is insufficient to equip a lawyer with the skills needed to apply the law, to conduct a business, to advise clients or employers, to make difficult ethical choices. Comprehensive learning is not embraced as an integral part of a practice in which a lawyer reflects systematically on their strengths and weaknesses and how to become a more effective lawyer”

A key recommendation of the report was the development of a competency framework for lawyers, which gives greater weight to skills needed for contemporary legal practice and to shift the focus of activity from compliance to genuine learning and development.

The report, ‘Getting the Point? Review of Continuing Professional Development for Victorian Lawyers’ provides 28 recommendations for change, including:

  • Development of a competency framework that describes the core skills for practising lawyers, differentiated by levels of experience and expertise
  • Production of resources for lawyers that provide information, guidance and templates about CPD activities, including reflective practise and planning
  • Working with the Law Institute, Victorian Bar and CPD providers to identify ways in which more effective, customised activities can be designed and delivered
  • Raising the profile and strengthening the resources available for CPD in key areas such as technology and the law, sexual harassment, family violence, diversity and inclusion, and health and wellbeing
  • Improving the approach to CPD Ethics programs
  • Developing a more active approach to identifying risk and linking CPD programs to identified risks
  • Using the CPD audit process to gather better information about risk and lawyers’ use of CPD
  • Establishing a CPD Steering Committee with representatives from the Law Institute, Victorian Bar, lawyers not in private practice, and academic or other experts to implement the review’s recommendations, in consultation with other stakeholders
  • Strengthening and re-orienting the profession’s culture of learning through leadership and communication of the new approaches.

There are also some recommendations aimed at clarifying and broadening the CPD topics and options available for those lawyers working in the corporate, government and community sector.

Fiona McLeay, Legal Services Board CEO and Commissioner said: “We are grateful to Chris for the high levels of engagement generated and fostered with our stakeholders and the legal profession and for the considered and thoughtful manner in which the review was conducted. We thank everyone who contributed to the review and took the time to share their experiences and views, and to engage in the conversation. We will now review the recommendations and develop a regulatory response for discussion in early 2021” Ms McLeay said.

See the VLSB’s statement, or read the full report

0

Law Council of Australia publishes webinar on implementing the ALRC’s pathways to justice roadmap

The Law Council of Australia has published a recording of its latest online webinar, entitled “Closing the Justice Gap: Implementing the Australian Law Reform Commission’s Pathways to Justice Roadmap”. Over the course of the event, the panel discussed a number of issues around access to justice, and the justice gap, including discussion around access to justice in indigenous communities. The panel was made up of Dr Hannah McGlade, Ms Cheryl Axleby, Dr Tracey McIntosh and Mr Tony McAvoy SC., with  Law Council President, Pauline Wright, moderating the discussion.

Watch the full recording of the webinar. 

0

Law Council of Australia roundtable on addressing sexual harassment in the legal profession

On the 8th July 2020 the Law Council of Australia held a national roundtable to discuss sexual harassment in the legal profession and what strategies could be put in place to address the issue. The event was aimed at providing a forum for experts to develop, discusses and refine policy positions for legislative reforms, and new approaches to combat the issue.

Attendees included inclusion and diversity representatives from the Law Council’s Constituent Bodies, the Australian Bar Association, regulators of the legal profession, women lawyers’ associations, law student and university representatives and the Sex Discrimination Commissioner.

Participants agreed on several proposals for further consideration and advancement by the Law Council including:

  • Specific amendments to the Sex Discrimination Act 1984 (Cth), including the extension of the prohibition of sexual harassment to all areas of life, and not just in respect of certain relationships and situations.
  • Measures to facilitate cultural change in the legal profession, including the facilitation of uniform policies and approaches to sexual harassment, training, as well as further consideration of the relevant professional conduct rules.

Read the Law Society’s description of the event.

0

More regulatory responses to COVID-19

Following on from last month’s newsletter, we’ve put together the following list to examine different regulator responses to the COVID-19 pandemic. Here it is interesting to note the development and changes, as regulators begin to get a grasp on the crisis and develop innovative responses to meet the changing environment. If you have any questions or best practice for the rest of the ICLR community, please do get in touch, and we will be happy to include any of these in the next newsletter.

Illinois has introduced executive order 2020-14, this satisfies notarial requirements that a person must “appear before” a notary public if a two-way audio-video connection is used. It also allows documents to be witnessed through the same technology.


The Law Society of New South Wales has decided to run it’s annual Law Careers Fair as an online event, rather than cancelling it. The event will use zoom to create virtual presentations, with individual video booths and company landing pages replacing exhibitor booths. More information about the event is available here. The Society has also decided to reduce its $410 membership fee to $10, for the 2020-2021 period, allowing members to redirect funds to priority areas during the crisis.


The Law Society of Hong Kong has announced that civil hearing will take place remotely, with all other non-essential court hearings currently adjourned.


The Legal Sector Affinity Group which is made up of all the legal supervisory authorities in the UK, including the Law Society, Bar Council, CILEx, and the Law Society of Scotland, has released an advisory note on preventing money laundering during the crisis. The note discussed the increased risk of money laundering at the current time and what checks can be put in place to mitigate this.


The Council for Licensed Conveyancers in England and Wales is to allow members to defer fee payments, following the near-complete standstill in the UK property market. Members will be given the option to defer paying their practice fee and compensation fund contributions for April, May and June, which can be paid off over the following 4-12 months.


The California State Bar Board of Trustees has written to the California Supreme Court offering options and recommendations for the June First-Year Law Students’ Exam and the July Bar Exam. Full letter available here. Whilst the State Bar of Califonia has put in place emergency measures waiving late payment fees, as well as extending payment deadlines for membership fees and compliance deadlines.


The Law Society of Ontario has cancelled the lawyer licensing examinations and the call to the bar ceremonies due to take place in June. The society has said that alternative summer/autumn examination dates are being explored and that the administrative aspect of the call to the bar process is being undertaken remotely, allowing students to progress with their careers, with a celebration planned later in the year.


The Law Society of Saskatchewan and the Law Society of Alberta have temporarily reduced the articling requirements to a minimum of 8 months, instead of the previous minimum of 12 months, preventing a backlog of articling students due to limits created by coronavirus. Full statements available here and here. The Law Society of Alberta has also introduced changes allowing articling students to work remotely, as well as giving instructions on the supervision students doing this.


The American Bar Association has created a “Task Force on Legal Needs Arising Out of the 2020 Pandemic”, which launched a website on the 3rd of April to provide resources and information on the ongoing crisis and how this relates to the law. Statement available here, website available here. The ABA has also backed calls to adopt emergency rules that would allow recent and upcoming law school graduates who cannot take a bar exam because of the COVID-19 pandemic to engage in the limited practice of law, under the supervision of a licensed attorney, these individuals would have until the end of 2021 to practice without passing the bar exam. They hope this would limit the disruption to students careers, and help prevent the widening of the access to justice gap.  Full statement available here.

0

Regulatory responses to COVID-19

We’ve put together the following list to examine different regulator responses to the COVID-19 pandemic. If you have any questions or best practice for the rest of the ICLR community, please do get in touch, and we will be happy to include any of these in the next newsletter.

The Nederlandse Orde Van Advocaten has released a table of all responses to the pandemic that affect those working in the sector, including alternative methods for filing claims, and updates on court closures. Link available here.

The ABA has set up a task force to help Americans and those working in the profession cope with the repercussions of the pandemic, helping to identify areas of need and mobilise volunteer lawyers. Link available here.

The Bar Council of England and Wales has collated all advice on practice and legal aid into one guide, providing an overview of best practice response to the virus for practitioners.  Link available here.

The Victorian Legal Services  Board has published updated CPD guidelines to reflect the challenges presented in attending CPD sessions for lawyers under the current circumstances. Link available here.

The Canadian Bar Association has opened up pandemic planning resources to the profession, as well as releasing a podcast to help practitioners prepare. Link available here.

The SRA have now said that they will allow individual providers to decide how to carry out assessments for Qualifying Law Degrees and the Graduate Diploma in Law. With regards to the Legal Practice course, they have said that course providers may choose how to assess elective courses, and have relaxed the supervision rules for core subjects. Full statement available here.

The Bar Standards Board have decided to cancel upcoming April examinations, with students being asked to wait until the next examination session in August. They are undergoing discussion as to how this will affect pupillage requirements, as the later assessment date, and inability to complete Inns of Court sessions will leave many students unable to demonstrate the necessary requirements to begin a pupillage. Link to statement available here.

Pennsylvania State Governor Tom Wolf has mandated that all law firms and other legal services close their physical offices, in order to limit the spread of the virus. Link available here.

0

Law Society of New South Wales launches free legal assistance to those impacted by bushfires

The Law Society of New South Wales, in partnership with Legal Aid NSW, community legal centres,  Justice Connect and the NSW Bar Association has launched the NSW Government’s Disaster Response Legal Service, which will provide free legal assistance to those affected by the tragic bushfires in NSW.

Richard Harvey, the President of the Law Society said: “In this time of great tragedy, we need to do all we can, as members of the NSW community and the legal profession, to assist those impacted by the bushfires who have lost so much.”

The Law Society’s statement also noted that many solicitors in the region may have been affected by the fires, and noted that the Law Society in partnership with Lawcover could assist in:

  • Trust accounting;
  • Professional support for loss of files; and
  • Professional support in costs, ethics and regulatory compliance for any affected legal practice, as well as any wellbeing issues that may arise.

The President’s full statement is available here. Full information about the response efforts is available here.

0

Law Society of Australia issues guidance on crowdfunding

The Law Society of Australia has released a guidance document over the professional and ethical risks for lawyers when navigating issues around crowdfunding. The guidance noted the rise in the use of crowdfunding for litigation, and the questions this raises over discrediting the profession if used for revenue raising. However, the guide also highlighted the added access to justice benefits of crowdfunding, allowing for those with limited financial resources to seek legal remedy.

The guidance aims to clarify the Society’s position and inform legal professionals of the appropriate steps they can take in order to effectively manage risk.

The full guidance is available here.

0

Report finds improvement in gender gap in barrister briefings

The Law Council of Australia has just published its Equitable Briefing Policy Annual Report for the 2017-2018 Financial Year.  The report shows that female barristers are starting to receive more briefs and are more often recommended for work by their colleagues in new or current matters, however, they still lag behind male colleagues when it comes to the number and value of briefs.

It found female barristers received a quarter of the 23,170 briefs reported by the 44 briefing entities for the period. During the reporting period, male barristers received 83 per cent of the total reported fees.  The Chair of the Law Council’s Equal Opportunity Committee, Kate Eastman SC, said that whilst there was obvious room for improvement, the report set a foundation for the profession to continue to build upon.

Read more on this story…

0
post

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.

 

0
post

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
0