We recently reported on the work of the California State Bar and their proposals for regulatory reform put forward by the Task Force on Access Through Innovation of Legal Services as well as the work being done by the National Conference of Bar Examiners (NCBE) Testing Task Force.
In her article, ‘Re-regulating Lawyers for the 21st Century’, Jayne Reardon, Executive Director of the Illinois Supreme Court Commission on Professionalism highlights the work of a number of US State Bars, regulators and national bodies who are currently reviewing lawyer regulation issues and reflects upon how any advancements in lawyer regulation could lead to a fundamental re-structuring of the legal market. Read the full article on the Illinois Supreme Court Commission on Professionalism’s website.
Colorado Supreme Court Office of Attorney Regulation Counsel started developing its lawyer self-assessment program more than two years ago, immediately after a seminal workshop on proactive, risk-based regulation at the 41st ABA National Conference of Professional Responsibility in May 2015. The new resource is a leading facet of a larger shift toward proactive management-based regulation, which aims to help lawyers practice ethically and soundly in the first place, rather than just reactively imposing discipline after lawyers make mistakes.
The new system provides the regulatory team with real time stats on lawyer engagement and self-assessed professional performance. It highlights the professional objectives scoring the highest and lowest across all respondents, providing the team with evidence to support further educational program development. The platform also has the ability to create customized lists of continuing legal education (CLE) resources based on each respondent’s own personal benchmarks and areas of need. These lists make yearly CLE planning fast and easy for lawyers, and keeps them focused on the most effective resources for their needs.
Jon White, staff attorney at the regulator, writes “The practice of law will always be challenging. The “ounce of prevention is worth a pound of cure” approach of the proactive practice program seeks to reduce some of that stress. The self-assessments give lawyers the blueprint to build an ethical infrastructure. Lawyers, in turn, benefit from enhanced peace of mind. Clients benefit from exceptional service. It is a win-win for all.” The insights generated by the program’s data is informing the regulator where practitioners need more assistance, and where there may be weaker points in the sector as a whole. Staying ahead of this issues protects the public and strengthens the jurisdiction as a whole.
The U.S. Supreme Court sent back a case challenging a nearly 30-year-old precedent allowing mandatory bar membership.
The case took aim at the county’s first mandatory bar, North Dakota’s, which required membership in the state’s bar association as a condition to practice law as early as 1921, according to the American Bar Association.
Although the state with the most lawyers as of 2017—New York—still has voluntary membership, 37 other U.S. jurisdictions have “unified” or “integrated” bars, which require bar membership, according to ABA statistics.
Arnold Fleck, a North Dakota lawyer, says the requirement violates his First Amendment rights. He asked the court to overturn a nearly 30-year-old precedent holding otherwise.
The Supreme Court said in 1990 that mandatory membership schemes pass constitutional muster so long as they don’t require members to “finance political and ideological activities with which” an attorney disagrees.
The Indiana Lawyer has released an article tackling one of the legal sector’s most contentious issues – Rule of Professional Conduct 8.2(a), which governs lawyers’ speech about judges. Lawyers, it seems, don’t want to address the topic for fear of being perceived as speaking critically of the judiciary, while judges seemingly don’t want to discuss situations where they feel they have been unfairly criticized. According to an Indiana University Robert H. McKinney School of Law professor, the unease surrounding Rule 8.2(a) is not a matter of respect, but rather a matter of lawyer fear. Professor Margaret Tarkington takes a deep dive into caselaw surrounding lawyer speech and related discipline and concludes that rules similar to 8.2(a) can cause attorneys to stay tight-lipped even in the face of judicial misconduct.
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.
The New York City Bar Association’s E-Discovery Working Group issued a report examining the challenges of conducting discovery when the scope of discovery exceeds US borders. The Committee lays out the most common circumstances in which cross-border discovery would occur, including issues of personal jurisdiction over foreign parties as well as cases of US subsidiaries of foreign parent company. It discusses a number of regulations, statutes and treaties that govern cross-border discovery. The Committee also considers laws of foreign entities, including the GDPR in the Europe Union, as well as US case law that may restrict cross-border discovery. It concludes with a set of best practices for navigating foreign law that restricts discovery.
Under Model Rule 1.6(a) a lawyer has a duty of confidentiality. Supporting language to the model rule, known as a Comment, emphasizes that a fundamental principle of the legal profession is that a lawyer must not reveal any information relating to the representation without the informed consent of the client. The opinion notes that unless one of the exceptions to Model Rule 1.6(a) applies to a situation, the lawyer is barred for commenting publicly about the representation.
With more lawyers blogging and offering social commentary, Formal Opinion 480 is intended to provide guidance on the parameters of such activity. It also serves as guidance to state licensing agencies to help interpret their own rules of professional conduct. The opinion adds that the ethical rules of many jurisdictions establish confidentiality rules even before formal representation begins and well beyond the end of the professional relationship.
The opinion warns lawyers against using hypotheticals in blogging and social commentary when there is a “reasonable likelihood” that a third party might ascertain the identify or situation of the client from the facts in the hypothetical. “The salient point is that when a lawyer participates in public commentary that includes client information, if the lawyer has not secured the client’s informed consent or the disclosure is not otherwise impliedly authorized to carry out the representation, then the lawyer violates Rule 1.6(a),” the opinion said.
Technology was very much a topic of conversation at the 2017 ICLR Meeting in Singapore. Regulators are using technology to help them better focus their work and resources. In the context of access to legal services and access to justice, technology offers consumers ways to connect with lawyers and to get help. And, technology helps lawyers market themselves and their services.
With constant changes in technology, how lawyers advertise and market their services, domestically and internationally, remains a topic of high interest. Some countries prohibit lawyer advertising. Others permit it, but regulate it to varying degrees. In the U.S., while generally following the ABA Model Rules of Professional Conduct, there is significant jurisdictional variation in how lawyer advertising and marketing is regulated. The ABA Standing Committee on Ethics and Professional Responsibility has undertaken a comprehensive study of the ABA Model Rules on this subject in the interest of furthering uniformity, but also because its members concluded that the current advertising rules are outdated and may hinder the ability of lawyers to adapt to changing technology. In addition, the Committee recognizes that consumers frequently use technology to learn about and access legal services.
The Committee intends to present a proposal to amend these Model Rules to the ABA House of Delegates for consideration in August 2018. The Committee’s Working Draft of the proposed amendments to the ABA Model Rules of Professional Conduct and Memorandum explaining those changes is out for review and comment. All written comments on the Working Draft should be filed by March 1, 2018. Comments may be emailed to firstname.lastname@example.org. All comments will be posted on the ABA website.
The ABA Center for Professional Responsibility continues its work to educate the profession about Proactive Management-Based Regulation, and to provide resources and tools to regulators and others on this subject. The Center has launched a new PMBR web resource, which includes US and International resources. Colorado has launched its voluntary self-assessment program, and Illinois is in the process of implementing its new PMBR self-assessment and education rules for lawyers in the state who do not carry malpractice insurance. The Center will continue its work in this area and welcomes from ICLR members information to add to its PMBR web resource.
Thank you to Ellyn Rosen, Regulation and Global Initiatives Counsel, ABA Center for Professional Responsibility for providing this update.