ICLR 2024 conference in-depth report – part 1

This first of two special editions of ICLR news provides an in-depth report of the recent ICLR 2024 conference, together with a round-up of some related regulatory developments taking place in October. This year’s ICLR conference was expertly hosted by the Victorian Legal Services Board and Commissioner (VLSB+C) in Melbourne between the 16-18 October, and was for the first time held in tandem with the Australia/New Zealand Conference of Regulatory Officers (CORO).

The three day conference was longer than previous ICLR conferences,  in response to popular demand for more time to cover topics in depth and to allow for more networking opportunities.

This first conference report covers the topics covered at the plenary sessions, our next edition will reflect on discussions at some of the many parallel breakouts and workshops held during the conference. These short reports cannot do full justice to the richness of the discussion, but hopefully give a flavour of what was covered. Links to some of the materials shared by presenters at the conference are also included.

 

ICLR 2024 Plenary Sessions

There were five plenary sessions at this year’s ICLR covering themes of cross-cutting interest.

 

Artificial Intelligence – AI for Today and Tomorrow

The 2024 conference kicked off with half a day of sessions devoted to artificial intelligence (AI). The starting point for discussion was a presentation by Professor Ed Santow of the Human Technology Institute at the University of Technology Sydney. Ed summarised the various types of AI and explained how the Generative AI (GenAI) form of AI, which has been popularised in the last eighteen months by ChatGPT, differs from the Artificial General Intelligence of science fiction. He highlighted the risk that AI poses of providing easy access to superficial data, increasing the temptation to skimp on analysis of what it means in practice. He also flagged the concerns that surveys suggest citizens have with the potential uses of AI.

He set out five issues for lawyers that GenAI raises:

1. The tendency of GenAI to focus on fluency of responses, rather than accuracy
2. The risks that training data may include legally-protected information
3. The issue that confidentiality & privacy are not generally maintained for most GenAI applications
4. The possibility of hallucination leading to plausible but incorrect outputs from GenAI
5. The challenge of staff using systems outside of formal supervision

He then suggested the questions that these issues raise for regulators:

From an internal perspective, regulators needed to ask themselves:

1. Do they have the necessary technical expertise?
2. Do they understand AI outputs?
3. Are they able to train their staff on AI?

When engaging externally with regulated communities, regulators needed to consider:

1. Could they use AI to detect misconduct?
2. Could they provide the profession with practical advice on ‘red lines’ rather than generic high level principles?
3. Could they help their regulated communities to understand if they are doing the right thing, and are safe from prosecution, without necessarily offering a safe harbour?

Ed also suggested that regulators should think about the best GenAI use cases for their purposes but also be wary of the potential for vexatious complainants to make use GenAI and  overwhelm the regulatory process.

He concluded by suggesting that:

1. Regulators should develop strategic expertise in GenAI and consider how it will affect their day to day business
2. They should consider how they can use GenAI internally
3. They should ask whether they have the right powers for GenAI
4. They should be aware that GenAI will fail and consider how to build in accountability when this happens
5. Lastly they should be aware that GenAI doesn’t raise only ethical questions but also legal ones.

In the subsequent panel discussion, there was broad agreement that:

1. Common experience across jurisdictions suggests that many small firms are hyper-cautious about AI. Any change is likely to be client driven.
2. Many concerns could probably be dealt with by applying existing law that is technology neutral
3. A mandatory technology competence for the legal profession was felt to be desirable
4. AI presents challenges for jurisdictions with unauthorised practice of law regimes, as it blurs the lines between advice and information. Sandboxes seem to be a way of dealing with this issue.
5. Regulators should aim to tap into the expertise that some larger law firms had built up on AI.

For more background see Ed Santow’s presentation.

 

Mental health and lawyer wellbeing – Supporting and Sustaining the Legal Profession

Mental health and wellbeing of the legal profession has moved centre stage at ICLR and was the focus of the second plenary session.

Professor Vivien Holmes of Australia National University (ANU) reported on work being undertaken by her and her colleagues on behalf of the regulators of the Uniform Law States (New South Wales, Victoria and Western Australia). This work had involved surveying lawyers on their mental wellbeing and around one third of those lawyers surveyed had reported heightened levels of psychological distress. The highest levels of psychological distress were found in lawyers with less than 5 years of qualification, females in the profession and employees. A critical finding of this research was that perceptions of a positive ethical climate was associated with higher levels of wellbeing and lower levels of psychological distress. The survey also flagged up the support that practitioners experiencing mental health related issues had found most useful. The project findings are still at an interim stage and further analysis is underway.

Jeevyn Dhaliwal, President of the Law Society of British Columbia, spoke about the work being undertaken by the LSBC to develop alternative discipline processes for professionals dealing with health issues, designed to ensure that such lawyers are, where possible, reintegrated into the profession. Jeevyn described the 3 year pilot Alternative Discipline Process (ADP) project currently being undertaken by the Law Society and the conclusions so far. She described certain cases in which lawyers whose practice was particularly valuable to the community within which they were practising had successfully gone through the ADP.

Lucinda Soon, IBA Commissioner on the Professional Wellbeing Commission spoke about the International Bar Association’s work on this topic. This ranges from awareness raising to promotion of resources and tools for improving wellbeing. Lucinda reported on the IBA’s 2021 survey of the legal profession worldwide, which had produced results that echoed those of the Australian survey. Overall, the IBA had found that lawyers in general scored below the World Health Organisation (WHO) index’s threshold  score for concern about mental health. As in the Australian context, young lawyers, female lawyers and minority ethnic groups in the profession presented the greatest cause for concern. The IBA’s research had also looked at the causes of mental stress and the actions that would be most helpful to promote wellbeing. The next steps were planned to be international guidelines for wellbeing in legal education, in the legal  profession generally and further resources such as webinars and podcasts.

See below for the links to presentations made at the plenary session on this topic.

1. 1. Professor Vivien Holmes
   2. Jeevyn Dhaliwal
   3. Lucinda Soon

 

Indigenous issues – Where indigenous issues meet legal regulation

Indigenous issues were a major focus of the conference, from the welcome to the conference by the Djirri Djirri dancers and the daily reminder that the traditional owners of the land on which ICLR/CORO was taking place were the Wurundjeri people of the Kulin nation.

The plenary session on “where indigenous issues meet legal regulation” included contributions from legal regulators in Australia, Canada and New Zealand, each speaking about the evolution of treatment of indigenous communities in their respective countries. These contributions highlighted some common themes. All of the presenters reported on the overrepresentation of indigenous peoples in the justice system, underrepresentation in the legal profession and the challenges of ensuring fair representation and treatment of indigenous rights within legal regulatory processes.

Shannon McDonnough from the Law Society of Ontario spoke about the application of Canada’s Gladue principles in Law Society Regulatory matters involving indigenous lawyers. Katie Rusbatch of the New Zealand Law Society explained how her organisation is crafting a te ao Māori strategy which will link to all areas of regulation. Nerita Wright of the Victorian Aboriginal Legal Service (VALS) spoke about the work being undertaken by VALS, the Law Institute of Victoria and Victorian Legal Aid. This work includes the creation of a First Nations Cultural Capability Framework to improve the experience of First Nations people seeking legal support or assistance.  Other initiatives include improvements to the experience of First Nations people in custody, drawing on Canada’s Gladue principles and the creation of new Justice Treaty arrangements in Victoria for First Nations peoples.

For more background see:

1. Presentations by Shannon McDonagh, Katie Rusbatch and Nerita wright
2. What are Gladue Principles? | Gladue Rights Research Database
3. The history of Aboriginal and Torres Strait Islander peoples advocating for the right to be heard | Australian Human Rights Commission

 

Consumer legal need and consumer legal capability – Understanding Consumers of Legal Services

Nigel Balmer and Kerri-Anne Millard gave an overview of current research undertaken by the VLSB+C into the consumer perspective of legal services. Nigel Balmer provided insights into  the background and theory behind consumer legal needs surveys. He drew participants attention to the 2019 publication from the OECD on Legal Needs Surveys and Access to Justice which provides a guide to those wishing to undertake such surveys. He also explained how the VLSB’s work on Public Understanding of Law Survey (PULS) and Legal Understanding and Lawyer Use (LULU) Surveys were building on this earlier work to explore legal need and legal capability in more detail. Nigel’s presentation concluded with a call to action directed at policymakers and regulators in particular, to understand and get involved in improving legal capability – thereby enabling individuals with legal needs to get those needs met.

For more see Nigel Balmer‘s presentation.

 

Models of regulation – Model Differences

This session offered a chance for participants to hear an update from the same panel who had presented at the Dublin conference on this topic. Speakers from British Columbia, New Zealand, Ireland and Victoria, reflected either on recent developments in their jurisdictions or how well, or not, their recently changed model was working.

British Columbia, as reported in previous ICLR newsletters has now seen the entry into force of Bill 21, now the Legal Professions Act. Don Avison, CEO of the Law Society of British Columbia highlighted some of the concerns of the Law Society about the new legislation, including the lack of consultation from government.

Katie Rusbatch, CEO of the New Zealand Law Society (NZLS), reflected on the Law Society’s experience of launching its own independent review of regulation in order to update the framework within which the Society had to operate. Having accepted most of the recommendations of the independent review, NZLS is now waiting on a government response. A major difficulty appears to be that legal services regulation is low down the priority list for a relatively new government and there is no clarity on when, or even whether, the recommendations of the independent review might be implemented.

Brian Doherty, CEO of Ireland’s Legal Services Regulatory Authority (LSRA) reflected on the challenges that the LSRA had faced in implementing the Legal Services Regulation Act 2015. He noted the importance of clear regulatory objectives, which had been modelled on the England and Wales Legal Services Act 2007. One of the biggest challenges the LSRA had faced with its legislation had been the funding model laid down in the Act, which was retrospective and highly constraining. It had taken a few years to get this amended.

Fiona McLeay and Adam Awty, CEOs of the Victorian Legal Services Board and Commissioner (VLSB +C) and Law Institute of Victoria (LIV) respectively, spoke about the Victorian model of regulation. They noted that relations between the two organisations had not always been as positive as they were at present, but had evolved to a situation in which both organisations benefited from the role that the other could play. It helped the LIV to have separation of its regulatory function as this brought it closer to its membership, whilst it helped the VLSB+C to have a representative outlet that could support practitioners in need.

Overall, the session highlighted the challenges of legislation on legal services and how it can both help regulators (e.g. through clear regulatory objectives),  and reduce their ability to respond to changing circumstances. The lessons for regulators facing re-regulation included the need to stay close to government and influence the shape of emerging legislation, as far as possible, to seek regulatory objectives as a way of guiding future activity, and where possible, to avoid over-prescriptive requirements which constrain the necessary evolution of regulation.

 

Other recent developments on regulatory models

On 23 October the Government of Alberta announced a review of regulated professions in the province “In response to increasing concerns that regulated professional bodies may be going too far in limiting individual freedom of expression and imposing compulsory training beyond the scope of their professional practice”. The Law Society of Alberta has responded in a statement which reaffirms its commitment to public interest regulation.

You can read both the announcement from the Government of Alberta and from the Law Society here:

Statement Regarding Regulatory Review – Law Society of Alberta

https://www.alberta.ca/release.cfm?xID=91212448C797E-A27A-6A2F-52E76D0708DEFE4D

 

Look out for next month’s edition which will pick up on some of the topics discussed in the ICLR breakout and workshop sessions.