Legal Market Landscape Report (July 2018)

Commissioned by the State Bar of California, July 2018, Professor William D. Henderson

The Bar contracted with Professor William D. Henderson to conduct a landscape analysis of the current state of the legal services market, including new technologies and business models used in the delivery of legal services, with a special focus on enhancing access to justice.  The report is the first step in the
Bar’s study of delivery of legal services through the use of technology.

Read the report…

State Bar of California seeking public comments on regulatory reforms

The State Bar of California is seeking public comment on proposals for regulatory reform put forward by the Task Force on Access Through Innovation of Legal Services. The task force was set up to improve access to justice through regulatory reform, following a report in 2018 that suggested that regulation was limiting innovations which could improve the public availability of legal services (report available here). The task-force has unveiled sixteen concepts for regulatory reform, including allowing non-lawyers to hold financial interests in a  legal practice, and permitting fee-sharing between lawyers and non-lawyers. The Bar has now opened the options up to comment and they would appreciate the views of foreign regulators on their proposals.

The consultation closes on the 23rd September 2019. Full details of the consultation are available here.

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California Bar Exploring Opportunities To Deploy AI

The agency is examining how artificial intelligence could help it review misconduct complaints and administer the bar exam.


The State Bar of California has started wading into the artificial intelligence waters.

The agency is exploring ways AI could help bolster the efficiency of its attorney discipline system and assist with administering the bar exam.

The bar recently entered into a contract with the MITRE Corporation to help it develop and evaluate algorithmic processes for identifying whether aattorney misconduct complaint could be closed without investigation.

State Bar Executive Director Leah T. Wilson said if an AI tool can be crafted to help the bar more speedily review whether to close or investigate complaints, it would reduce the administrative burden on staff. That in turn would allow the bar to shift its “human resources to other parts of the case processing continuum,” Wilson said.

Freeing up staff to assist with serious allegations of lawyer misconduct could be beneficial in light of the state auditor’s recent recommendation that the State Bar not hire as many new employees for its discipline unit as desired.

Wilson said an AI tool could also assist in ensuring a level of consistency and standardization in the bar’s review of the roughly 16,000 attorney misconduct complaints it receives annuallyThe technology could be especially helpful amid a nearly 60 percent increase in complaints made to the bar in recent months, a bump that has come amid the agency starting to accept online complaints.  

It was the transition last fall to permitting online complaints that allowed the bar to even contemplate an AI tool for reviewing such filings, according to Wilson.

She stressed that the MITRE project is in the early stages, and the bar will closely examine the effectiveness of the tool developed.

“If it’s not reliable to a very high degree of statistical significance, we couldn’t implement it,” Wilson said.

The bar’s $90,000 contract with MITRE, which was signed last month, calls for the company to complete its work on the project by mid-October.

Meanwhile, the State Bar is planning to use AI to help it administer the First-Year Law Students’ Examination, known as the “Baby Bar.” Law students completing their first year of law study at an unaccredited law school or through the Law Office Study Program are among those who must take the test.

At two of the sites where the Baby Bar will be given next month, the bar will be piloting the use of AI proctors for the essay portion of the exam that is taken on computers, Wilson said.

Live proctors will be there as well to ensure things go smoothly and to respond if the AI software alerts them to any patterns of eye movement or gestures out of the norm for test takers.

“If all goes well, it is our intention to deploy AI proctoring for the July bar exam,” Wilson said.

The bar began exploring AI proctoring because it struggled last year to attract enough proctors to administer the exams it gives to prospective lawyers.

Wilson said there will still need to be some human proctors present at future exams for security purposes and to help with any issues that arise, according to Wilson. But she said a successful pilot of AI proctoring would reduce the overall need for human proctors moving forward. 

On both the bar exam and attorney discipline fronts, Wilson said the bar is seeking to strike the right balance between being forward-leaning while protecting against the risks that arise with the deployment of new technologies.

I think it is the responsibility of good government everywhere to figure out how we can take advantage of technology to improve the services that we provide to the public,” she said.

Separate from the initiatives mentioned above, a bar task force is actively working to identify regulatory changes that would provide members of the public with greater access to legal services through technology, such as AI. The next meeting of the Task Force on Access Through Innovation of Legal Services is Monday, May 13.


*This article first appeared on Evolve the Law. 

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California continues to debate division of regulation and representation functions

The California State Bar has been investigating the potential division of regulation and representation functions over the past five years. The Governance in the Public Interest Task Force concluded in 2017, launching a five-year strategic plan to “successfully transition to the ‘new State Bar’ — an agency focused exclusively on public protection through regulating the legal profession and promoting access to justice”.

Under the new system, the California State Bar will be a purely regulatory body. All representative functions will be transferred from the Bar to the  California Lawyers Association, a new professional entity.

Proponents and critics of the new system alike question how this new transition will impact the already uncertain financial footing of the Bar. However, the new strategy will strive to “Improve the fiscal and operational management of the State Bar, emphasizing integrity, transparency, accountability, and excellence.”

Read California’s new Five Year Strategy 

California prepares to lead US profession into non-lawyer ownership

Regulators are poised to consider radical rule changes that could decisively open the way to allowing non-lawyers into the legal profession of the US’s most populous state.

The State Bar of California voted earlier this month to accept a report from legal academic Professor William D. Henderson calling for structural reforms to the way the market is regulated. The bar’s board of trustees further resolved to authorise a taskforce to study and come back with recommendations for reforms that balance the goals of public protection and increased access to justice.

The taskforce proposals – not expected until 2019 – could pave the way for a version of the alternative business structure regime in the UK and Australia, allowing a system where non-lawyers are able to own law firms and legal businesses are able to take on external capital investment. Despite repeated attempts to encourage liberalisation in the US – and not withstanding sporadic examples of legal markets opening to outsiders – the US profession has overwhelmingly resisted emulating England and Wales.

In his report, Prof Henderson cited the problem of ‘lagging legal productivity’ and that, in contrast to medical care and higher education, a growing proportion of US consumers are choosing to forgo legal services rather than pay a higher price.

Read the Full Article 

Henderson Report

 

State Bar of California publishes 2017 Annual Discipline Report

In 2017 the State Bar and its prosecutorial arm, the Office of Chief Trial Counsel, implemented a number of comprehensive structural and process re-engineering reforms designed to improve public protection for all California residents. Given the ambitious nature of these reforms, key measures from the report indicate a decline in short-term performance as compared to the previous year.

Key 2017 workload measures include:

  • Received 15,175 new complaints of attorney misconduct; of these 524 were immigration related;
  • Received 668 unauthorized practice of law complaints, 158 of which were immigration related;
  • Referred 315 unauthorized practice of law matters to law enforcement for potential prosecution;
  • Closed 14,063 cases and filed formal charges in 483;
  • Recommended disbarment or suspension to the Supreme Court in 592 cases;
  • Disbarred 129 attorneys; suspended 134 attorneys; and reprimanded 52 attorneys.

An additional performance measure included in the Annual Discipline Report is case backlog, which grew in 2017. The report notes that while the current backlog is up, the Office of Chief Trial Counsel has been developing a new system of case prioritisation to provide more protection to vulnerable victims of attorney misconduct, which will ultimately ensure that the cases that cause the most harm to the public never end up in backlog status.

“Californians deserve to be protected by a strong attorney discipline system. Our internal reforms and improvements will help the State Bar better achieve our mission of protecting the public from attorney misconduct,” said Leah Wilson, Executive Director of the State Bar of California.

Major initiatives of the State Bar Office of Chief Trial Counsel in 2017 include:

  • Development of an improved case prioritisation system to devote more resources to the cases which pose the greatest threat to the public;
  • Implementation of a new Case Management System to increase transparency, effectiveness, and efficiency;
  • Assessment of workload to allocate heavy caseloads among staff fairly and efficiently.

The State Bar’s ongoing reform efforts included additional measures  taken in 2017 to support the attorney discipline system and public protection:

Read the full 2017 Annual Discipline Report.

 

California probation materials

These materials were presented at the 2016 International Conference of Legal Regulators.

Session title: I always feel like somebody’s watching me: reinstatement and supervision of lawyers on probation

This paper includes the standard conditions and a compliance declaration.

California probation materials

California discipline process

These materials were presented at the 2016 International Conference of Legal Regulators. Session title: Attorney Discipline System Intake and Investigation Procedures From Around the Globe: Comparative Analysis and Best Practices

California discipline process overview

California discipline process flowchart

80% of major jurisdictions use central qualifying assessment

In an international benchmarking exercise, the Solicitors Regulation Authority (SRA) in England and Wales finds that almost 80% of the jurisdictions surveyed have a common assessment as part of lawyer qualification.

Press release on SRA website

Report on SRA website