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.
- 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
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
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
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 Australian state of New South Wales (NSW) was the first jurisdiction to fully deregulate law firm structure and allow alternative business structures. At the same time it required that incorporated legal practices implement ‘appropriate management systems’ for ensuring compliance with professional ethical obligations.
This paper presents a preliminary empirical evaluation of the impact of this attempt at ‘management-based regulation’. We find that the NSW requirement that firms self-assess their ethics management leads to a large and statistically significant drop in complaints. The (self-assessed) level of implementation of ethics management infrastructure, however, does not make any difference. The relevance of these findings to debates about deprofessionalization, managerialism, and commercialism in the legal profession is discussed, and the NSW approach is distinguished from the more heavy-handed English legal aid approach to regulating law firm quality management.
Parker, Christine and Gordon, Tahlia Ruth and Mark, Steve A., Regulating Law Firm Ethics Management: An Empirical Assessment of an Innovation in Regulation of the Legal Profession in New South Wales. Journal of Law and Society, Vol. 37, Issue 3, pp. 466-500, September 2010. Read article on SSRN.
This article argues that the American Bar Association (ABA) should recommend, and the state courts should adopt, proactive management-based regulation (PMBR) programs to supplement the existing complaint-based systems of professional discipline.
The article discusses the New South Wales program, highlighting the requirement that incorporated legal practices designate Legal Practitioner Directors, and non-adversarial collaboration between regulators and the designated solicitors to help firms develop and maintain ‘appropriate management systems’.
The article argues that professional self-regulation’s limited commitment to consumer protection for clients should be strengthened, and that doing so may require a PMBR program.
Schneyer, Ted (2013) “The Case for Proactive Management-Based Regulation to Improve Professional Self-Regulation for U.S. Lawyers,” Hofstra Law Review: Vol. 42: Iss. 1, Article 19.
Read the article at http://scholarlycommons.law.hofstra.edu/hlr/vol42/iss1/19
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
The Legal Profession Uniform Framework is designed to be applied by any Australian State or Territory to establish a common legal services market. New South Wales and Victoria adopted it from 1 July 2015, and other jurisdictions are encouraged to join the scheme and will be able to do so without the need for changes to the scheme.
Uniform framework explained on the Legal Services Council website