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.

Law Society of Saskatchewan amends Legal Profession Act to expand access to legal services

The Law Society of Saskatchewan has announced amendments to the Legal Profession Act, 1990, effective from 1 January 2020. The Law Society is an independent regulator with the core mandate of the protection of public interest.

In 2017 the Law Society and the Ministry of Justice established the Legal Services Task Team, comprised of lawyers, member of the public and other non-lawyers working in legal services, as part of the strategic plan to increase access to legal services. The task team was asked to explore the possibility of non-lawyers being allowed to provide low-risk legal services.

The team’s recommendations included clarifying the definition of the practice of law, and identifying what constituted unauthorised practice of law; expanding the list of exemptions to the unauthorised practice provisions; and creating limited licenses that may be granted by the Law Society on a case-by-case basis.

Amendments to the Act which have been introduced include:  a clearer definition of the practice of law and allowing limited licensing, the first example of this approach in Canada. The Law Society of Saskatchewan Rules were also amended to include an expanded list of exemptions to unauthorised practice. The Law Society is attempting to identify further groups and individuals providing limited legal services, who are not lawyers, that may not fall neatly within the new list of exemptions.

The Society is hoping to encourage low-risk providers to self identify to be considered for exemptions, especially as the Society has historically not pursued low-risk providers. The Society feels that self-identification will allow for more effective management and regulation of such providers.

Further information about the reforms is available here.

Alberta, Manitoba, Nova Scotia and Saskatchewan to launch new skills course with CPLED

A new skills course designed by the Canadian Centre for Professional Legal Education (CPLED) will be launched for articling clerks in Alberta, Manitoba, Nova Scotia and Saskatchewan. The course, known as The Practice Readiness Education Program or PREP is designed to equip students with the necessary practical skills to pursue a career in law in the future.

The PREP course is designed to run over nine months, with two intakes per year, and is broken down into four sections:

  • Foundation modules (5 months) – online modules providing a foundation in all CPLED competencies including Lawyer Skills, Practice Management and Professional Ethics and Character. (More detail on the foundation modules is available here)
  • Face-to-face foundation workshops (5 days) – face-to-face workshops that include role-playing in the areas of interviewing, negotiating, and advocacy
  • Virtual firm one-month rotations (3 months) – rotations working in a virtual law firm, testing previous training, tasks will include  interviewing simulated clients within a learning management system, allowing assessors to track progress
  • Face-to-face Capstone (4 days) – the final assessment in the program requires students to participate in a face-to-face simulated matter, which will test all the skills developed throughout the program, combined with a final reflection piece

The program is designed to be taken after students have completed their formal legal education and in conjunction with their articling.

Further details about the PREP are available here and here.

FLSC launches anti-money laundering and terrorist financing risk advisory for the legal profession

The Federation of Law Societies of Canda (FLSC) has launched a series of risk advisories and risk assessment case studies, designed to help legal professionals adapt to the new anti-money laundering rules. The rule changes are based on an FLSC model rule and have been adopted by Nova Scotia, Alberta, Saskatchewan and British Columbia. The new rules particularly focus on client identification and verification.

 

Practising As a Lawyer in a Partnership and Multidisciplinary Practice in Québec: Progress and Prospects

Abstract

The regulatory framework relating to the legal professions in Québec reached a turning point in the 2000s, following the adoption of the Règlement sur l’exercice de la profession d’avocat en société et en multidisciplinarité. More than a decade later, this article examines the negotiation surrounding the drafting of the Règlement, and the various arguments put forward by the Barreau du Québec and other professional corporations to justify its adoption. Data from the registre des entreprises are then used to examine the extent to which Quebec law firms have taken advantage of the diverse legal options at their disposal to organize their activities.

Citation
Paquin, Julie, Practising As a Lawyer in a Partnership and Multidisciplinary Practice in Québec: Progress and Prospects (L’exercice de la profession d’avocat en société et en multidisciplinarité au Québec : bilan et perspectives) (september 1, 2017). Les Cahiers de droit, Vol. 58 (3), 2017, 383-607 .

Available from the SSRN site.

Law Society of Ontario approves AML amendments

In November 2019 the Convocation (Board of Directors) of the Law Society of Ontario approved in principle amendments to by-laws designed to combat money laundering and terrorist financing. The amendments which build on existing regulation include:

  • a requirement that licensees identify and record the source of client funds for a transaction
  • clarification with respect to the amount of cash that a legal professional can receive in respect of any one client matter
  • changes to the requirements and processes for identifying and verifying the identity of individual and organizational clients
  • new requirements to engage in ongoing monitoring of the business relationship with the client, including assessing whether there is a risk that the legal professional may be encouraging fraud or illegal conduct
  • introduction of a new Trust Accounting Model Rule to explicitly prohibit the use of a trust account for a purpose unrelated to the practice of law.

The law society has issued a guidance document, available here, to assist licencees on their obligations.

For further information about the changes click here.

Law Society of Ontario technology task force releases initial observation report

In November of 2019, the Law Society of Ontario’s technology task force released their initial observations and  recommendations over future regulatory approaches to tech and how it could appropriately facilitate access to justice.

The Technology Task Force has been established with the aim of reviewing the Law Society’s regulatory mandate, framework, and standards to determine whether they will adequately serve the public in the light of the changes tech is leading to in the legal sector.

The task force has recognised the need to act immediately to foster innovation and has recommended enhancing professional guidance in order to do this.

The full report is available here.

Ontario Attorney General Doug Downey reveals new legal regulation strategy

Ontario Attorney General Doug Downey has unveiled Bill 161, which is designed to both implement Legal Aid Services Act, as well as amending the Law Society Act. The act is designed to ease the regulatory burden, as well as creating some accountability from lawyers. Some of the proposed changes include:

  • raising maximum fines for lawyers to $100,000 from $10,000
  • adding to the circumstances in which a lawyer or paralegal’s license can be revoked
  • moving towards entity-based regulation by defining a “firm”

See the full proposals on the Legislative Assembly of Ontario site (PDF).

The Federation of Law Societies of Canada working with government in the fight against money laundering and terrorist financing

The regulators of the legal profession in Canada and the Canadian government have embarked on a new chapter in the fight against money laundering and the financing of terrorist activities. Late last Spring Canada’s Minister of Finance announced the creation of a joint working group comprised of representatives of the government and the Federation of Law Societies of Canada. The working group, which held its first meeting at the end of June 2019, is intended as forum to explore issues related to money laundering and terrorist financing that may arise in legal practice and to strengthen information sharing between the regulators of the legal profession and the government of Canada. The group, co-chaired by an official of the Department of Finance and the Federation’s Executive Director of Policy and Public Affairs, will meet quarterly.

The creation of the joint working group follows a decade-long legal battle in which the Federation argued that attempts to subject members of the legal profession to the government’s AML regime interfered with solicitor-client privilege and the duties owed by legal counsel to their clients. A February 2015 decision from the Supreme Court of Canada upheld the Federation’s arguments finding that as applied to members of the legal profession, the AML regime was unconstitutional.

Canada’s legal regulators have engaged for many years in regulating the risks of money laundering and terrorism financing in the practice of law. Two model rules, aimed at limiting the handling of cash by members of the legal profession and ensuring legal counsel engage in due diligence in identifying their clients, have been the cornerstone of the regulators’ anti-money laundering and anti-terrorism financing initiatives. The Cash Transactions Rule was adopted in 2004, and the Client Identification and Verification Model Rule was adopted in 2008. Both were implemented by all Canadian law societies. Those rules were updated with amendments adopted by the Federation in late 2018. A new Model Trust Accounting Rule that restricts the use of the trust accounts of members of the legal profession as part of the law society regulations aimed at fighting money laundering and terrorist financing was adopted at the same time.

In the years following the court victory, the Federation encouraged the government to recognize the regulatory initiatives of the Law Societies and to see the regulators as partners in the fight against money laundering in Canada. Faced with criticism from the Financial Action Task Force over the exclusion of legal counsel from the legislative AML regime, the government was initially focused on the suggestion in the Supreme Court’s decision that it might be possible to develop constitutionally-compliant AML regulations governing members of the legal profession. The new joint working group and the discussions leading to its creation mark a significant shift in the government’s approach to this issue. The government has made it clear that it is interested in working closely with the Federation and the law societies on the anti-money laundering file indicating an understanding of the unique position of the legal profession and the duties that members of the profession owe to their clients.

It is expected that officials from Canada’s financial intelligence agency (FINTRAC) and federal law enforcement agencies will join representatives of the Federation and the Canadian departments of Finance and Justice on the joint working group. The next meeting of the working group is scheduled for November 2019.

Author: Frederica Wilson
Executive Director, Policy and Public Affairs and Deputy CEO, Federation of Law Societies of Canada

post

Sustainability of self-regulation scrutinized in Ontario

Bencher candidate John Nunziata says he thinks the provincial government may have to intervene in the legal profession’s self-regulation model following the bencher election ending April 30.

Nunziata told Law Times that he has heard the proposition of reviewing the Law Society Act discussed among Ontario’s members of provincial Parliament who watch the legal profession. However, Law Times requested interviews with 14 MPPs who have backgrounds as lawyers and none accepted.

Several MPPs, including a spokesperson for Attorney General Caroline Mulroney, repeated the same message.

“The Law Society of Ontario has a mandate to regulate lawyers and paralegals in the public interest. Questions regarding the law society, the bencher election and the regulation of lawyers should be directed to the law society. The attorney general looks forward to working together with the law society in the future on legal issues that affect the people of Ontario,” said an email statement.

Nunziata, a former member of Parliament, would not reveal which MPPs he had spoken to.

Still, Nunziata says he thinks that issues such as low voter turnout, a budget deficit and the divide over the statement of principles requirement could draw the attention of Queen’s Park.

“The fact that the public is not on the side of lawyers — because most people have a negative opinion of lawyers — there are politicians that would say, ‘Well, let’s review what’s going on here.’ For one, conservatives do not believe in running deficits in principle,” says Nunziata.

Rebecca Bromwich, a faculty member at Carleton University in Ottawa who is running for bencher, has studied the topic of self-regulation and its ability to deal with complicated issues such as money laundering.

She concluded, in that research, that government should support self-regulation in the public interest. She says she is not privy to any comments from MPs about the LSO, and said that although Canada’s self-regulation model differs from other countries, the public and political will has typically not supported changing the model.

Bromwich also said there are some positives to self-regulation, and that critics of self-regulation may not consider how a government would undertake the same task. She says that centralising regulation in the government might be at odds with a more conservative political view.

“I think every election is important. I think it would be great if lawyers think it is important,” she says. “Benchers reduced the size of Convocation before this election, so it seems like if there are generally views of reducing the size of the regulatory body, most people seem to be the same page. It’s whether the government should be the one doing it.”

Nunziata says the LSO is an outlier compared to professions that are regulated by an appointed board, rather than a large election, such as the one taking place now.

“It’s important for lawyers to vote, it’s important for the law society to be truly representative of lawyers and paralegals,” he says. “Yes, one of the mandates is to govern in the public interest, but I think there is also an obligation to make sure the needs of lawyers and paralegals are addressed as well.”

The law society’s governance task force is currently considering options to shrink the number of benchers in Convocation.

Susan Tonkin said in an e-mail on behalf of the LSO saying, “The Law Society governs Ontario’s lawyers and paralegals in the public interest. Self-regulation strengthens the independence of the bar and protects the rule of law, which are two critical underpinnings of a democratic society. We look forward to continuing to work with the government and other legal stakeholders as we continue to fulfill our mandate.”

Several examples put forth for a call for comment by the governance task force suggest decreasing the number of elected benchers, which would proportionately give appointed benchers more sway.

At the time of the call for comment, in November 2018, Mulroney said in a letter that the provincial government “believes that it is vital that governing bodies are streamlined and efficient,” adding that her ministry would “fully endorse efforts to reduce the total number of benchers at Convocation to facilitate quicker and more effective decision-making and cost effectiveness.”

Nunziata points out that the provincial government recently cut the size of Toronto’s city council to 25 members from 47.

One skeptic of the LSO’s governance model has announced a run for office: Anita Anand, a law professor at the University of Toronto, said on April 2 that she is seeking the federal Liberal Party nomination in the riding of Oakville, Ont. Anand’s’ research into the topic was recently publicized through a newspaper article titled “Ontario’s law society needs to address problems in self-regulation.”

“Self-regulation opens the possibility of conflicts of interest: lawyers governing themselves may, in making rules for the profession, make decisions that benefit themselves rather than the general public, who may be unable to protect their own interests,” she wrote in the article.

“As a result of these concerns, both Britain and Australia have moved away from self-regulation.”


*This article first appeared in Law Times.