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.

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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.

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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.

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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.

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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…

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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.

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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. 

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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

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