LSB launches consultation on ongoing professional competence in the legal services sector

The Legal Services Board has launched a consultation on “ongoing professional competence in the legal services sector”. The aim of the consultation is to review how regulators ensure that the legal professionals they regulate remain competent over the course of their careers.

LSB Chief Executive Matthew Hill said: ‘Ensuring legal professionals remain competent throughout their careers will help increase trust in legal services and improve access to justice. We look forward to hearing from the wide range of people with an interest in this subject, including regulators, providers and representative bodies, within and beyond the legal services sector.’

The LSB is asking respondents to consider four themes:

• Defining competence and competence assurance
• Consumer expectations of competence
• Competence assurance in the legal services sector
• Competence assurance in other sectors

The LSB plans to engage widely with stakeholders during the call for evidence and is looking forward to meeting with interested parties in the coming months, and has expressed a desire to hear the views of international regulators on their views and experiences on the theme.

Full details of the consultation are on the LSB Ongoing competence: Call for evidence page

Consultation response submission deadline: 15 May 2020. 

SRA launches consultation on compensation fund changes

The Solicitors Regulation Authority has launched a consultation on “reforms to the compensation fund arrangements”. The consultation builds on the conclusions of the past consultation on compensation, covered here in 2018. Changes have been made based on the feedback given, including introducing a maximum cap on related claims and dropping proposals for the introduction of a hardship test.

Paul Philip, SRA Chief Executive said: “We want to strike the right balance between protecting clients’ money and making sure that the Fund remains sustainable for the future. We think the proposals we are consulting on find that balance, but we want to hear the views of all those involved.”

Proposals include:

  • Focusing eligibility criteria on people that need most protection and removing the current hardship tests
  • Only allowing applications from people that have been provided or are a recipient of a legal service from the solicitor involved
  • Reducing the single claim limit to £500,000, and being clearer about how to apply this limit
  • Capping the total amount payable for a group of related claims
  • No longer allowing claims where an insurance policy has been voided or has already paid out money

The full details of the SRA’s conclusions from the past consultation are available here.

Details of the current consultation, including submission instructions, the proposed rules and further evidence are available here.

Consultation response submission deadline: 21 April 2020. 

Event: BSB- The Future of Legal Services – Regulation of the Market, Consumer Protection and Technological Innovation

25th February 2020

Bar Standards Board (BSB) Director of Strategy and Policy Ewen MacLeod will be hosting a panel to discuss ‘Regulation in the legal services market – structures, roles and independence’. The seminar will focus on the upcoming publication of Stephen Mayson’s Independent Review of Legal Services Regulation.

Speakers will look at the conclusions of the review, and the ongoing function of legal regulators, as well as looking at the potential future impact of the report.

Event Website

BSB publishes research into barristers’ attitudes to CPD revisions

The Bar Standards Board (BSB) has published a report on the impact of their revised approach to regulating barristers’ Continuing Professional Development. The report found that the general attitude towards the scheme amongst barristers was positive, with many welcoming the improved flexibility of the rules, however the report also suggested that there was some misunderstanding over the role of reflection in maintaining professional standards.

The report focuses on the CPD approach launched in 2017, which emphasised outcomes for barristers with over three years of experience, replacing the prescriptive hours focused approach.

Read the full report on the BSB site (PDF).

Revised SRA approach to CPD is well recieved by law firms

Newly published feedback received by the Solicitor Regulation Authority (SRA) on continuous professional development (CPD) requirements introduced in 2016 has indicated that the changes have been well received by solicitors and law firms. The requirements, known as ‘Continuing Competence’ are available in full here and include requiring solicitors to make an annual declaration of their own training and development as part of their renewal application, allowing for greater time flexibility and more targeted development.

Feedback from firms was very positive with 40 per cent of law firms reporting that the changes have increased the amount of learning and development support offered to their solicitors, 52 per cent of firms saying that levels of learning and development have remained unchanged, and only 9 per cent reporting a reduction in the focus given to this area. SRA comments are available here, whilst the full report is available here.

 

ICLR 2019: Regulating in Uncomfortable Spaces

The following content has been provided by the panel presenting on this topic during the afternoon on Day 1 of ICLR 2019.

Synopsis

As recent events have shown, regulating the conduct of lawyers who serve as elected politicians or in public office, as well as those who provide legal services to others in public office, is a minefield. It is a challenge to properly balance the interests of the public, lawyers and the administration of justice when potential ethical violations occur.

This workshop will be of interest to those involved in the regulation of lawyer conduct, those who help develop Law Society policy and rules, and those who prosecute or defend lawyers who are the subject of investigations who serve in public office or provide advice to those in public office.

The workshop will highlight a number of cases in various jurisdictions where such lawyers have been the subject of complaints, and how these jurisdictions have balanced the various interests to determine an appropriate outcome.

Speakers

Moderator: Victoria Rees, Director of Professional Responsibility, Nova Scotia Barristers’ Society

Panelist: Ellyn Rosen, Regulation and Global Initiatives Counsel, ABA Center for Professional Responsibility

Panelist: Rebecca Magorokosho-Musimwa, Regulatory Services Manager, Law Society of Zimbabwe

Panelist: Ian Miller, Partner, Kingsley Napley LLP, London, UK

 

What particularly do you hope to explore in this session?  Any specific questions you hope to answer?

This workshop will provide practical case-based guidance (including a take-away you help develop) on:

  1. What factors should regulators consider when assessing risk and determining when/ whether to take action in these circumstances?
  2. How can regulators effectively balance all relevant interests when engaged in these assessments/investigations?

 

What do you hope to achieve with this session?

This session will be conducted in workshop fashion, with significant engagement and input from the audience to create, during the session, a useful tool/checklist of factors to consider when dealing with similar complaints and the conduct of lawyers in public office or providing advice to those in public office.

See the full conference programme

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Incoming Bar chair warns of “nightmare scenario” over regulation

The Bar could be “sleep walking into a nightmare scenario” where new rules mean it has no involvement with its regulator, the incoming chairman of the Bar Council has warned.

Richard Atkins QC also suggested that the Legal Services Board (LSB) did not have the evidence to back up its assertion that its proposed internal governance reforms were needed or would lead to costs savings.

Last month, the LSB published a final consultation on revised internal governance rules which would clearly limit the influence the Bar Council could have on the Bar Standards Board (BSB) – and other bodies like the Law Society could have on their regulatory arms.

In his inaugural speech to the Bar Council last night, Mr Atkins – who takes over from Andrew Walker QC on 1 January 2019 – said the proposals risked the BSB becoming “more and more remote from the Bar Council”.

He explained: “There is the possibility, for example, that the Bar Council will have absolutely no involvement in the future appointment of members of the BSB’s board.

“There is also the possibility that, unless the BSB decides to consult the Bar Council on its budget plans, the Bar Council will have no input into this process either. And this of course decides the level of the practising certificate fee.

“These, and other proposals would in my opinion be unhelpful both to regulator and regulated if brought into being.”

Mr Atkins said that, whilst the BSB’s mission was to protect the public and consumer interest, “we do rely on them having an understanding of the profession and the challenges it faces”.

The LSB’s new rules risked undermining this, he argued, and could lead to disputes “that simply do not exist at the moment”, as well as an increase in the costs to the Bar.

He questioned whether there was evidence that the proposals were needed, or for the implication in the consultation that the public did not have confidence in legal services provided by the Bar.

“In my opinion, there is a need for those who constantly peddle the dogma of regulatory independence to understand what the Bar is and does and how we pride ourselves on our professionalism.

“The Bar has never been against the high-quality regulation of legal services, but we are unshakeably firm in our view that over-regulation is not a good thing.

“We must fight hard to make the case that we do not need further regulation, further red tape or a super regulator.”

This was why the Bar Council was asking the LSB to prove its assertion that the proposals would lead to cost savings, he added: “We have seen no evidence for this.”

He also urged barrister to respond to the consultation. “It will be no use complaining if you do not respond and you find that we have sleep walked into a nightmare scenario.”

Mr Atkins is leader of the Midland Circuit and practises from St Philips chambers in Birmingham and 4KBW in London. He specialises in regulatory and serious criminal matters.

In a wide-ranging speech on the issues facing the Bar, he said one of his main aims for 2019 was “to raise the level of understanding across the Bar as to what exactly the Bar Council is and does”.

He continued: “The Bar Council is not a bogey man that simply seeks to charge members of the Bar more and more to allow them to practise. It is not some foreign body that is there to make life difficult for practising barristers.

“We are here to support the Bar and we will continue to do precisely that during my tenure.”

The other big issues for the Bar Council to grapple with over the coming year were the state of the justice system, Brexit, court reform, equality and diversity, and practising as a barrister.

Mr Atkins concluded that his overarching aim was “to see a happier Bar”.

He said: “I appreciate that some may see that statement as being naïve and some might claim that it is offensive given the problems that the Bar and, in particular, the publicly funded Bar face.

“But I am not naïve, and I am not seeking to cause offence. This year will be 30 years since I was called to the Bar. I have not lived in an ivory tower and I am not blind to the numerous problems that the Bar has faced recently and will continue to face.

“But, if we are successful in tackling the matters I have outlined, this will in my opinion go some way to achieving a happier Bar.”

*This article first appeared on Legal Futures

Regulators “must guard against misuse of lawtech”

Artificial intelligence-backed lawtech has the potential to improve access to justice but also carries a danger that automating law will be used negatively, meaning regulators will have to step in, a global innovation charity has warned.

Nesta, which is working with the Solicitors Regulation Authority (SRA) to identify and support transformative AI legal technology, backed by a £700,000 government grant, said the lesson of technology developments elsewhere was that such innovations had a “dark side”.

For instance, the advent of cheap or free and anonymous internet communications had also brought with it a “toxic social media culture of abuse”.

The authors, Olivier Usher and Chris Gorst, both senior members of Nesta’s challenge prize centre, which oversees rewards for innovation, wrote in a blog : “When speech is free, all speech flourishes, including hate speech.”

From a lawtech point of view, they wrote, it could both enable access to justice but also create a “less palatable future”.

They said it could involve “the silencing of #MeToo activists with an avalanche of libel lawsuits; honest tradesmen ripped off by an automatic lawsuit over every invoice; online bullies spinning up endless court cases against their enemies in order to intimidate them into submission; patent trolls automating their hunt for genuinely innovative companies to exploit”.

However, speaking to Legal Futures, the authors said they were hopeful that the practice of law, as a highly regulated profession, might escape the arrival of negative elements, if regulators were vigilant and willing to be proactive if necessary.

Mr Usher said the risk of lawtech being used for ill would only come about if “the regulators completely wash their hands” of acting to stop it.

He highlighted the importance of ‘safe spaces’ for innovation to be tested, such as the Financial Conduct Authority’s (FCA) regulatory sandbox.

Earlier this year the SRA announced it would simplify its system for granting waivers to regulations in order to promote innovation, and formalise its ‘innovation space’ initiative, which is comparable to the FCA’s sandbox.

The space includes a guarantee that the SRA will take no enforcement action if innovations bring a firm into technical breach of its rules.

Mr Gorst said it was already possible to launch cases to harass people and regulators had it in mind when setting conduct rules. “I wonder how new a problem this would be by virtue of the fact it could be somewhat more automated?” he asked.

He continued: “The really exciting opportunity is… technology can help people navigate their way through the system, help them avoid needing recourse to law where it’s not really necessary, help them with a guided pathway through the system… [and help] them to represent themselves in legal situations where the cost of a lawyer might be prohibitive.

“We think the space of opportunity seems really large, but we should also be mindful of the risks, and regulators need to be mindful of the risks as well.”

It is understood the SRA is in the process of tendering for its AI project.

*This article first appeared on Legal Futures.

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.