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.
The slaying earlier this month of a prominent human rights lawyer in the Philippines who worked on behalf of poor suspects accused of drug-related crimes has sparked a renewed outcry over President Rodrigo Duterte’s brutal war on drugs. The lawyer, Benjamin Ramos, was gunned down by two unidentified assailants on Nov. 6—the 34th lawyer to be killed since Duterte took office in 2016. In an interview with WPR, Imelda Deinla, a research fellow at the Australian National University’s School of Regulation and Global Governance, explains why Philippine lawyers are being targeted and how this wave of violence is affecting the country’s legal institutions.
Read the full story from World Politics Review
13-14 September 2018
The Canadian Institute for the Administration of Justice is hosting its bi-annual Legislative Drafting Conference – “Charting Legislative Courses in a Complex World”. The Conference will tackle one of the most pervasive challenges in modern legislation: complexity, beginning with its principal drivers in public policy. Why does our world generate legislative complexity? And how can legislation address this complexity intelligibly, coherently and effectively? Conference sessions will also focus on examples of today’s complexity challenges in international trading relationships, cannabis de-criminalization and the interaction of state law with indigenous legal traditions. Other sessions will focus on pragmatic drafting solutions to particular facets of these challenges, such as interjurisdictional coherence, resolving policy blockages, drafting for clients with limited policy-resources and achieving legislative coherence over time. The conference will include a wide range of speakers from Canada, the UK and beyond.
13-14 September 2018
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.
Following its decision last year not to implement the Quality Assurance Scheme for Advocates (QASA), the Bar Standards Board (BSB) has today published more detail about how it assures the competence of barristers.
The approach reflects the BSB’s move in the last few years to become a more risk- and evidence-based regulator that takes better targeted action to maintain standards of practice at the Bar. This means that more focused regulation can be introduced where concerns about professional competence have been identified – for example, the recently introduced competence and registration requirements in relation to Youth Court advocacy.
As well as specific targeted regulation, the BSB’s approach to assuring standards includes a range of additional measures that have already been implemented. These include:
- the regulator’s Future Bar Training reforms that include a clearly defined set of knowledge, skills and attributes expected of all newly qualified barristers on their first day of practice, as specified in the Professional Statement for Barristers;
- the introduction in 2017 of the new Continuing Professional Development (CPD) scheme for experienced barristers which, aligned with robust monitoring by the regulator, places greater responsibility on individual barristers to reflect upon their learning and development, set learning objectives and review them annually; and
- existing regulatory controls stemming from a requirement in the BSB Handbook that barristers should not undertake work unless competent to do so.
The paper published today also explains how the BSB uses external indicators of the profession’s competence to inform its regulatory approach. These include existing measures of barristers’ competence such as the processes for reviewing the quality of barristers to join specialist panels like the Treasury Panel or for appointment as a QC.
The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 480 explaining the limitations the Model Rules of Professional Conduct place on lawyers who blog or engage in other social commentary related to a representation.
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.
Read the full Formal Opinion
Following the SRA’s ‘Looking to the future‘ consultation in summer 2016, they are now consulting on further changes to their Handbook and their proposed revised Enforcement Strategy. This consultation also includes the transitional arrangements for the introduction of the Solicitors Qualifying Examination (SQE).
Through the Looking to the future programme, the SRA are:
- simplifying regulations so they are clear on the professional standards they expect and what will happen when solicitors fall short of those standards
- getting rid of unnecessary bureaucracy that drives up costs or restricts access to solicitors, while making sure the right public protections remain in place
- improving the information available to help people make better choices.
You can find information on:
- what has happened with the rules in the existing Handbook, and the proposed sets of rules in the new Handbook, in annex one
- the revised Enforcement Strategy in annex two
- the SRA’s assessment of the impacts of these changes in annex three.
This consultation is running from 27 September until 20 December 2017. For full details of this consultation see the SRA’s website.
Join the National Organisation of Bar Counsel (NOBC) in New York on 9-12 August 2017 for its Annual Meeting. You’ll get the opportunity to meet and learn from others who face the same issues. Session topics include: ‘A discussion about “attacks” on regulatory counsel (and how to deal with them)’, ‘Interplay Between Disciplinary Agencies and Client Protection Funds’ and ‘The Crucible of Lawyer Discipline: The Role of Public Shaming in Promoting Professional Conduct and Protecting the Public’.
From May 31 through June 2, 2017, the American Bar Association Center for Professional Responsibility held its 43rd ABA National Conference on Professional Responsibility. The National Conference has long been the premier event of its kind in the U.S., bringing together legal scholars, jurists, regulators, and specialists in the professional responsibility field for two days of intensive programming addressing a wide range of issues. National Conference topics cover recent domestic and international trends and developments in legal ethics, professional discipline, bar admissions, professionalism, and practice issues. This year, a session about improving the health and wellness of the profession will be echoed with a regulator focus by a panel on this subject at the upcoming International Conference of Legal Regulators (ICLR) in Singapore (Day 1, Session 4). Other sessions focused on data security, multijurisdictional practice issues, and unique ethics issues faced by government lawyers.
Held in conjunction with the National Conference were the annual National Forum on Client Protection, Specialization Roundtable, and the 3rd Annual Workshop on Proactive Management-Based Regulation (PMBR). This successful Workshop designed for regulators opened with remarks from the Chief Justice of the Illinois Supreme Court, Lloyd A. Karmeier. Chief Justice Karmeir spoke about his Court’s adoption of new PMBR self-assessment and education rules for lawyers in the state who do not carry malpractice insurance. This regulatory mechanism is the first of its kind in the U.S., with Colorado having adopted Regulatory Objectives earlier and being in the process of implementing a voluntary self-assessment program. Facilitated by these Center for Professional Responsibility Workshops, a number of other U.S. jurisdictions are now studying PMBR. There will be a session at the 2017 ICLR regarding success stories in Risk-Based Regulation, moderated by Victoria Rees – Director of Professional Responsibility, Nova Scotia Barristers’ Society.
You may review detailed summaries of a number of National Conference and Client Protection Forum panels in this ABA/BNA Lawyers’ Manual on Professional Responsibility summary.
The Illinois Supreme Court has announced today the adoption of certain new rules governing the legal profession in Illinois. The changes are intended to help minimize many of the risks that lawyers face in the private practice of law. In doing so, Illinois becomes the first state in the nation to adopt Proactive Management Based Regulation (PMBR). The rule changes were based upon a multi-year study of PMBR initiatives in other countries and in the United States, and after consultation with key Illinois stakeholders, including many bar association and lawyer groups.
The new programme is currently limited to private practice lawyers who don’t carry malpractice insurance. Along with other licensing requirements, affected lawyers will have to complete an online self-assessment and education programme covering a range of professional responsibility areas in which bad habits routinely blossom into ethics complaints. The results of the biennial reviews will then be shared with the lawyer, along with resources intended to help them address problems spotted in the review.