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An Australian Study on Lawyer Vulnerability & Legal Misconduct

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.

Access Full Report Here

Authors: 

  • 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

Bar Standards Board shares good practice for barristers and advice for clients on consumer feedback

The Bar Standards Board (BSB) has today published new guidance that aims to encourage barristers to follow good practice when they receive feedback from their clients. It has also published a guide for the public about using and leaving feedback about barristers’ services.

Along with the other legal regulators, the BSB was asked by the Competition and Markets Authority (CMA) to produce this guidance as one of the recommendations in its 2016 study into the legal services’ market.

The guidance for barristers, which was developed with input from barristers, practice managers and clerks, aims to share:

  • examples of good practice and practical advice to improve the systems that barristers and chambers already have in place;
  • some of the barriers barristers face when collecting feedback and how they can be overcome;
  • the sort of questions to ask when seeking feedback; and
  • how barristers and chambers can use the information they receive.

The guide for the public is for people who are:

  • looking for feedback to help them choose a barrister;
  • looking to instruct a barrister based on feedback they have received from someone or have seen somewhere else; or
  • wanting to give feedback on the service they have received from a barrister to help them improve their practice or to help others choose a barrister.

Read the full Guidance Report here

Understanding consumer experiences of conveyancing legal services

Conveyancing is one of the most common legal services people use in their lifetime, with more than one million homes bought and sold every year in the UK.  However, there are some concerns about the conduct of some solicitors and the quality of service they are providing, with high proportions of insurance claims and complaints to the Legal Ombudsman relating to conveyancing. There are also increasing risks for users of conveyancing services, as technology enables cybercrime and mortgage fraud.

The UK Government has acknowledged these problems and has committed to reforming the conveyancing process, to make it cheaper, faster and less stressful. The Competition and Markets Authority (CMA) also has concerns that poor transparency about price, service and quality is having a negative impact on consumer choice and competition.

Summary

The Solicitors Regulation Authority (SRA) commissioned independent research involving 1,501 people who had bought or sold a property during the previous two years. The research explored people’s experiences at each stage of the process, from how they found and chose their solicitor and their satisfaction with the service, to how they thought technology could improve services in the future.

The research found that 76 percent of legal service users were satisfied with the service they received from their conveyancing solicitor. However, it has also identified several areas where improvements could be made.

One key area for improvement the research highlighted was the need to provide people with better information throughout the conveyancing legal process, from the point when they are shopping around all the way through to when the transaction is completed. This information is particularly important for first time buyers and sellers, and for transactions that need specific detailed advice, such as leasehold purchases.

Key findings

Finding and choosing their solicitor

The SRA found there is an appetite for shopping around, including using comparison websites, particularly among first-time buyers and sellers. But there is a lack of information on price and description of services on firm websites, as well as limited information on regulation and consumer protections.

This is currently obstructing people’s ability to fully research and compare providers, so informed decision making difficult.

  • 55% of people rely on recommendations to choose their solicitor, the most common being from estate agents (27%) and friends, family or colleagues (25%).
  • 40% of all people surveyed were aware of comparison websites for legal services providers. Of these, approximately 1 in 3 used one to compare conveyancing providers.
  • First-time buyers and sellers were more likely to have found their solicitor through recommendation (64% compared to 51% with previous experience).
  • Cost (87%) and being a conveyancing specialist (81%) were the most important factors that influenced which solicitor people chose.

Previous SRA research into price transparency found that the vast majority of firms do not advertise price information, and only 15 percent of people were able to obtain prices without having to contact a solicitor directly.

Information and communication

  • One in five people did not think their solicitor provided a clear explanation of the legal process, a figure that rises to two out of five among first time buyers and sellers.
  • One out of three of people did not remember receiving information on how to complain.
  • One out of five of people who had bought a leasehold property did not remember being provided with any information on the length of lease, service charges and other payments, such as ground rent.

Quality of service

  • Over three quarters of people were ‘very satisfied’ (46%) or ‘quite satisfied’ (30%) with their solicitor’s service. This compared with 14% who were dissatisfied.
  • People were satisfied with the service because of speed and efficiency (25%) and because their solicitor was easy to contact and kept them updated (14%).
  • People were dissatisfied because their solicitor was slow and inefficient (37%), communicated poorly and did not keep them updated (22%) or made mistakes (17%). Mistakes typically related to drafting of contracts or errors in the property’s title.

Complaints and redress

  • 9% of all survey respondents made a complaint to the firm about their service. This equates to just over one-quarter (26%) of respondents who said they were dissatisfied. This low rate may be linked to the fact that less than a third of people recalled being given information on how to complain in the first place.
  • First time buyers and sellers were more likely to complain (20% compared to 5% with previous experience).
  • Mistakes made by the solicitor in legal documents or invoices and poor customer service, particularly communication, were the main reasons for complaints.
  • Three quarters of people received a positive outcome to their complaint from their solicitor, including committing to progress the work (27%), an explanation to allay concerns (24%) and an apology (23%).
  • 14% of those who made a complaint reported that they did not receive a response. This issue was also identified in our previous research into solicitors’ first tier complaints processes, where 20% of complainants reported not receiving a response.
  • People demonstrated poor understanding of regulation in the legal services market. Some said they were unaware if their solicitor was regulated when they chose them.

Opportunities and risk of digitisation

  • People recognised the benefits of digitisation and automation for conveyancing transactions and were open to the prospect of more technology being introduced, suggesting it could ‘de-mystify’ the process for first timers.
  • However, they also identified several risks associated with this continued move towards digitisation, including cybercrime and fraud. Information security and protecting client money are two of the SRA’s priority risks for 2017/18.

Download the full report

ICLR 2017 – Panel: Effective New Regulatory Responses to Complaints

A synopsis of panel session 5, which takes place on 6 October at ICLR Singapore, kindly provided by the session’s moderator, Susan Saab Fortney – Professor and Associate Dean for Research, Texas A & M University School of Law. Conference materials will be made available to ICLR.net members after the conference.

The session examines new regulatory approaches to handling complaints. The following identifies the participants and the focus of their remarks:

Mr. Gregory Vijayendran, the President of the Law Society of Singapore, will introduce the roles and functions of the first two professional disciplinary bodies (the Review Committee and Inquiry Committee) and their interface with the Law Society Council in practice. He will also discuss the genesis and raison d’etre of a new, nuanced Inappropriate Conduct in Court regime incepted last year.

Mr. Edwin San, serves as the Senior Assistant Registrar of the Supreme Court of Singapore and as the Registrar in charge of the Disciplinary Tribunal Secretariat. Mr. San will discuss the work of the Disciplinary Tribunal Secretariat, the role and functions of the Disciplinary Tribunals, as well as the final stage of the disciplinary regime when the matter is referred to the Court of 3 Judges.

Ms. Kathryn Stone, the Chief Legal Ombudsman for England and Wales will explain how the Legal Ombudsman came about, what powers it has and how it is the alternative for England and Wales. She will also cover how the ombudsman scheme has moved away from self-regulation and the interesting challenges it faces due to Brexit.

Mr. John Elliot, the Regulator of Solicitors and Director of Regulation with the Law Society of Ireland. Mr. Elliot will provide an overview of the “multiple complaints scheme” operated by the Law Society of Ireland that allows the Law Society to impose special conditions on the practicing certificate of solicitors with a record of multiple complaints.

Mr. Robert Brittan the Deputy Commissioner of the Legal Services Commission Queensland will discuss the Commission’s approach to regulation, how they handle complaints, and their jurisdiction as opposed to other regulators in Australia. He will describe what the Commission can and cannot do and compensation for complainants.

Professor Susan Fortney, Professor & Associate Dean for Research at Texas A&M University, United States, will moderate the session.

Why is this session of particular interest and to whom?

Around the world many regulators are pursuing creative initiatives to advance public protection and improve the delivery of legal services. This session provides a window  to look at new approaches used by regulators in four different jurisdictions.

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

We would like to examine the importance of exploring new regulatory approaches and the practical challenges to doing so.  We would like the conference attendees to reflect on their own experiences, considering the opportunities and challenges. In addition, we hope to provide a roundtable discussion of how we evaluate the success and effectiveness of programmatic changes.

What do you hope to achieve with this session?

We hope that the overview and roundtable discussion fosters understanding, helping regulators in tackling issues in their own jurisdiction.  It should also provide an opportunity to learn about others who may provide insights and assistance.

Canada discipline process

These materials were presented at the 2016 International Conference of Legal Regulators.

Session title: Attorney Discipline System Intake and Investigation Procedures From Around the Globe: Comparative Analysis and Best Practices

Canada national discipline standards

Canada national implementation guide

 

England & Wales discipline process

These materials were presented at the 2016 International Conference of Legal Regulators.

Session title: Attorney Discipline System Intake and Investigation Procedures From Around the Globe: Comparative Analysis and Best Practices

England & Wales overview

England & Wales handbook

England & Wales flowchart

England & Wales procedures

England & Wales risk assessment

 

South Carolina discipline process

These materials were presented at the 2016 International Conference of Legal Regulators.

Session title: Attorney Discipline System Intake and Investigation Procedures From Around the Globe: Comparative Analysis and Best Practices

South Carolina discipline process

South Carolina screening flowcharts

 

Manitoba discipline process

These materials were presented at the 2016 International Conference of Legal Regulators.

Session title: Attorney Discipline System Intake and Investigation Procedures From Around the Globe: Comparative Analysis and Best Practices

Manitoba discipline overview

Manitoba orientation manual

Manitoba suspension restriction guideline