Structural Changes to the Legal Service to Deepen Capabilities and Better Meet Evolving Demands

In an attempt to update legal services to meet evolving demand, the government of Singapore has proposed a number of changes, including:

1.Establishing a separate Judicial Service, overseen by a newly established Judicial Service Commission (JSC) headed by the Chief Justice. Legal Service Officers (LSOs) currently holding judicial posts, such as Assistant Registrars in the Supreme Court and District Judges and Magistrates in the State Courts and Family Courts, will be transferred to the new Judicial Service, as Judicial Service Officers (JSOs).

2. Making consequential changes to the Legal Service, which will be overseen by a reconstituted Legal Service Commission (LSC) headed by the Attorney-General. The Legal Service will comprise LSOs holding other (non-judicial) posts in Government, such as in the Attorney-General’s Chambers (AGC) or Ministries.

These changes aim to put legal services in better stead for the future by allowing for more specialisation and allowing more space for adapting to specific management model moving forward.

Read the full story here

Bar Standards Board of England and Wales publishes new research on consumers’ expectations and experience of working with barristers

On the 4th of August, the Bar Standards Board (BSB) published research on consumers’ expectations and experience of working with barristers, with the goal of using an evidence-based approach to better understand consumer needs and barrister relationships. The research, which was undertaken by an independent research agency involved in-depth interviews with 50 consumers, all of whom had used a barrister in the two years preceding the project (therefore referred to as clients of barristers), this was followed up by focus group discussions involving 12 participants aiming to explore some of the issues raised in more detail. The research sample focused on both clients who had been referred to their barristers by a solicitor, and Public Access clients who chose their barristers directly.

The key findings from the research show that:

  • Few clients are confident that they can deal with a legal matter when it first occurs. With it being a new experience for the majority of respondents
  • Many clients who are referred by a solicitor to their barrister are referred to just one barrister, with little involvement in the decision
  • At the start of their engagement with a barrister, most clients have little understanding of a barristers’ role and duties or how the relationship should work, with more work needed to be done by barristers to clarify this
  • Most clients were satisfied with the way their barrister dealt with the legal process. Key indicators of good service identified by clients included: professionalism; approachability; friendliness and empathy; experience and knowledge; and accessibility

BSB Head of Policy and Research, Rupika Madhura, said: “This is an important piece of research which will help us gain a deeper insight into the experience of barristers’ clients. It complements others’ recent studies about consumers’ experience in the legal services market, and will help inform our work in various areas, in particular the review of the Code of Conduct expected of barristers.”

Read more about the research here. 

Ordinary Clients, Overreaching Lawyers, and the Failure to Implement Adequate Client Protection Measures

Abstract

Every year, thousands of individual clients are victimized by overreaching lawyers who overcharge clients, refuse to return unearned fees, or steal client money. Starting in the 1980s, the American Bar Association considered, and often proposed, client protection measures aimed at protecting clients from overreaching lawyers. These measures include requirements that lawyers use written fee agreements in their dealings with clients and Model Rules for Fee Arbitration, Client Protection Funds, Insurance Payee Notification, and Random Audits of Trust Accounts. This article examines what happened to these ABA recommendations when the states considered them and assesses the current state of client protection in the United States. It reveals that many jurisdictions have declined to adopt these measures or have adopted variations that do not adequately protect vulnerable clients. As a result, most states do not require lawyers to use written fee agreements and in most jurisdictions, ordinary clients have no meaningful recourse when fee disputes arise because lawyers are not required to arbitrate those disputes. While all states have established client protection funds to help reimburse clients who are victimized by their lawyers, many clients are not sufficiently compensated due to the low caps on recovery placed on some funds. At the same time, most states have declined to adopt other client protection measures that would help deter and detect lawyer defalcations. Why has this failure to protect ordinary clients occurred? The answer appears to be, in part, that state courts have paid insufficient attention to these issues or deferred to the state bars. The state bars have sometimes opposed these measures or implemented them in ways that inadequately protect the public. States with mandatory state bars—which are sometimes deeply involved in the rulemaking process—appear more likely to adopt fewer client protection measures. The article suggests that if state courts will not act to better protect ordinary clients, then state legislatures can and should do so.

Levin, Leslie C., Ordinary Clients, Overreaching Lawyers, and the Failure to Implement Adequate Client Protection Measures (August 16, 2021). American University Law Review, Vol. 71, No. 2, 2021,

Top jurists call for regulatory change to increase access to justice

During the 9th June ABA discussion on regulatory change, Vice Chief Justice Ann A. Scott Timmer of the Arizona Supreme Court stated that despite decades of efforts to encourage practising lawyers to perform a minimum of 50 pro bono hours annually to increase access to justice, minimal results have been achieved.

Timmer is part of a growing list of top jurists calling for regulatory change to expand access to justice. Instead of relying on pro bono work to increase legal access, for instance, regulatory changes could lead to nonlawyers handling some routine legal matters. She and chief justices from Utah, Michigan and Texas discussed some of these changes in the inaugural Redesigning Legal Speaker Series, which is intended to provide a forum to explore the legal profession’s regulatory changes underway and the challenges they face. Three ABA entities — the Center for Innovation, the Center for Professional Responsibility and the Standing Committee on the Delivery of Legal Services — have teamed up with the Institute for the Advancement of the American Legal System at the University of Denver and Legal Hackers to organize what is planned as a quarterly series.

The debut program, Redesigning Legal: Leading from the Bench — Expanding Access through Regulatory Innovation, also featured Chief Justice Bridget McCormack of Michigan, Chief Justice Nathan Hecht of Texas and Chief Justice Matthew Durrant of Utah, and showcased how supreme courts in Utah and Arizona have ushered in regulatory change to expand access to justice.

In Arizona, legal paraprofessionals can now practice in four distinct areas. The state Supreme Court also eliminated model rules that prohibit the sharing of legal fees with nonlawyers.

In Utah, 23 pilot programs have been approved in the state’s seven-year “sandbox” approach, Durrant said. They range from a solo practitioner giving his sole paralegal 10% ownership in the firm to law students at Brigham Young University providing counsel to domestic violence victims.

Hecht, who is also chair of the Conference of Chief Justices, said courts are rethinking their roles because jurists realize pro bono efforts are not sufficient to provide access to the courts for many Americans. McCormack added, “We are going to forge forward in Michigan because this is now the time in the process to try. And the big winner could be the public.”

Read more here.

England and Wales regulators launch new customer review pilot

A joint pilot project has launched by the Solicitors Regulation Authority (SRA), the Council for Licensed Conveyancers (CLC), CILEx Regulation (CRL) and the Bar Standards Board (BSB), under which regulated law firms have been invited to help develop meaningful quality indicators,  which will aid potential clients when choosing their legal service provider.

The exercise has brought together website providers and firms, as well as encouraging existing clients to post reviews, in order to identify what indicators they use when purchasing and assessing legal services. Currently, over 70 firms have signed up to the pilot to look at how reviews could add value to other comparison data, such as price.

The group of regulators will be carrying out research to find the best way to raise awareness amongst consumers of the benefits of shopping around for legal services. Legal services tend to be one-off or infrequent purchases, so the ‘triggers’ used in sectors such as energy and insurance are not as evident. The research will therefore explore options relevant to the legal services market. As well as this the research is aiming to explore objective data which may help consumers compare quality and will be liaising with comparison website providers and firms involved in the pilot to collect this.

Tracy Vegro, SRA Executive Director, Strategy and Innovation, has said, “We were obviously confident of seeing the project produce meaningful results that would help develop meaningful quality indicators, but we did not expect to see such a strong level of engagement initially and to see other, far-reaching effects emerging too. We originally said the pilot would run for six months, but we want to expand it to make sure we capture all the great work that firms are doing. So there is still time for more firms to get involved and become part of the momentum the pilot is creating. Stimulating the market so it is motivated to act allows for greater innovation in the long run when compared to moving straight to increased regulation, and the sector is clearly reaping the benefits of this already. We would encourage any other firm to join the project.’

Read more about the pilot here. 

Protecting and Promoting Competition in Response to ‘Disruptive’ Innovations in Legal Services: OECD Background Paper

Abstract

Despite traditional resistance to change in legal professions, pro-competitive “disruptive” innovations are beginning to transform legal services and the manner in which they are delivered. Online service delivery is allowing both legal professionals and unlicensed providers to serve clients remotely while taking advantage of the scalability of digital platforms. In addition, ranking and review information regarding legal professionals is becoming increasingly accessible, and is allowing clients to assess the quality of professionals before retaining them – a previously difficult proposition. Further, the unbundling of services, partially driven by increasing client awareness and fee pressure, is transforming the distribution of tasks in legal services and ending traditional “black box” models of service delivery. As a result, standardized activities are being outsourced to low-cost providers (including unlicensed ones), and new billing models are being introduced. Finally, automation is changing the nature, and volume, of tasks that legal professionals perform. Although the extent to which the work of legal professions can be automated is subject to debate, automated systems have been introduced which offer new capabilities and, in at least some instances, improved performance relative to legal professionals.

As a result of these innovations and the new competition they bring, the regulatory framework in which legal professionals operate is under pressure. The exclusivity enjoyed by legal professionals, and the precise scope of activities to which it applies, is becoming unclear as unlicensed entrants offer a widening range of services. Restrictions on the quantity of professionals that can operate in specified regions are being questioned at a time where the services they provide could easily be made available online. Further, legal professional self-regulators may be unable, or ill-suited, to identify accommodations that permit innovative entrants to serve consumers.

Competition authorities, which may have limited experience in legal services markets given that enforcement issues have been rare, should be aware of the challenges described above. Authorities can play a role in advocating for regulatory systems that reflect current market realities and ensure market access for pro-competitive disruptive innovations. Such a role could include advising policymakers who may be seeking to balance the benefits of competition with other policy objectives such as consumer protection. This process will require consideration of the objectives of legal professional regulations, particularly those addressing market failure, as well as the current design of those regulations.

Mancini, James, Protecting and Promoting Competition in Response to ‘Disruptive’ Innovations in Legal Services: OECD Background Paper (March 9, 2016). Working Party No. 2 on Competition and Regulation,

Available at SSRN.

Nederlandse Orde van Advocaten unveils website to allow consumers to easily access disciplinary rulings

The Nederlandse Orde van Advocaten (NOvA)  has created a website designed to allow consumers to easily access disciplinary rulings. The new feature has been launched as part of the ‘Find a lawyer’ search engine, which allows a litigant to better identify legal counsel. The website had previously shown indicative information about lawyers possibly facing a disciplinary decision, however, the website now includes a feature that allows users to click directly from a lawyer’s profile to access the full ruling of the court and or disciplinary board in relation to a lawyer.

The  zoekeenadvocaat.nl (find a lawyer) which was launched in 2019, provides consumers with the basic information on all lawyers in the Netherlands including contact and address details in registered jurisdictions, membership of specialist associations and whether the lawyer hears cases on the basis of legal aid. If a lawyer is suspended at that time, this is also clearly indicated. Lawyers who have been disbarred are completely removed from the search results.

The results previously contained a short description of any disciplinary decisions where a suspension or cancellation measure has been pronounced. However, it is now also possible to click on the relevant disciplinary decision and read the full decision directly on tuchtrecht.overheid.nl . This provides the litigant with easier access to disciplinary information, giving consumers better access to information when making a decision.

View the find a lawyer search engine here, or read more about the changes here. (Both resources in Dutch, but available via Google Translate)

Legal Services Board of England and Wales releases ten year report

A new report by the Legal Services Board (LSB) was published on the 25th November, the report is designed to give a review of the legal services sector, ten years since the initiation of independent regulation. The report is entitled “The State of Legal Services 2020” and is made up of a narrative section and an evidence compendium, and is informed by data, evidence and conversations with a wide range of individuals and organisations over the last six months and research by the LSB and others.

The LSB was established in 2009 to oversee the regulation of legal services in England and Wales. The report concludes that despite a number of achievements over the last decade, the basic legal needs of many citizens are not being met. Citizens today do have more choice when it comes to finding legal advice, and satisfaction with services has increased. However, 3.6 million adults in England and Wales have an unmet legal need involving a dispute every year. More than 1 in 3 adults (36%) have low confidence that they could achieve a fair and positive outcome when faced with a legal problem. Nearly nine in ten people say that “law is a game in which the skilful and resourceful are more likely to get what they want”.

While many are concerned about reductions in the scale and scope of legal aid and increased pressure on third sector advice agencies, other factors also contribute. Many people and businesses lack the capability and confidence to recognise legal problems and get help.  Comparison websites and customer review sites are not well established. Only 30% of consumers shop around, and only 2% use a comparison service before choosing a law firm. The market needs to put consumers first.

Exploring ways to address these challenges, the LSB says that it will be important to ensure that regulatory bodies put the interests of the public and consumers at the heart of everything they do. It has identified three areas of opportunity for all those involved in the sector to come together to drive improvement:

  • Fairer outcomes – widening public access to advice and support and ensuring that no one has a worse outcome or quality of service due to their background or life circumstances. The sector must also build a more inclusive culture which enables anyone to enter the law and achieve their full career potential.
  • Stronger confidence – resolving long-standing questions around the scope of regulation and broadening access to redress. It also requires regulators to put the right mechanisms in place so that legal professionals deliver consistently competent and ethical legal services.
  • Better services – giving consumers the information and tools they need to drive stronger competition, creating the right conditions for providers – including those yet to enter the market – to redesign legal services that respond to their needs. It also entails regulators fostering responsible innovation that commands the trust of both the public and legal professionals.

Dr Helen Phillips, Chair of the Legal Services Board, said: “Despite the real successes of the last decade, many of the critical challenges facing the legal sector today existed when the Legal Services Act came into force. This partly reflects that it continues to be difficult for people to know when they have a legal problem and to engage with the legal services market and shop around. It also reflects policy decisions taken over a long period relating to the publicly-funded legal sector. However, as our report lays out, there is an opportunity for the sector to reinvent itself and embrace a culture that puts the needs of consumers at its heart.  If we are successful, we will reduce unmet need and provide a much more equal experience for consumers.  Shopping around will be the norm, and people will find it easier to find and compare providers and reward firms offering high quality and affordable services. Consumers will consistently trust the advice they get, knowing an independent and effective regulatory system is providing the essential protection they need. That system will be equipped to respond to the changing market, provide better value for money and support innovation.  If consumers receive poor service, whatever type of provider they use, they will be able to complain to an independent body and obtain quick and fair redress.”

Also see:

The Anatomy of Consumer Legal Funding

Abstract

Litigant Third-Party Funding (LTPF), where financial companies advance money on a non-recourse basis to individual plaintiffs, is a growing and increasingly controversial industry in the U.S. This funding made headlines during the NFL concussion litigation with more than 1,000 players reported to have received such advances and with class counsel raising concerns of “predatory lending” with the Court. Policymakers and scholars echo these concerns as they call for regulation of the industry to protect vulnerable consumers. Any regulations, however, should be based on systematic data rather than good intentions or isolated anecdotes. But to date there has been almost no empirical research on the actual practices of the industry. This Article begins to fill that void.

Using a unique data set from one of the largest consumer litigation financing firms in the U.S. (“Funder”), we are the first to explore the anatomy of pre-settlement litigant finance in mass tort cases, such as the NFL class action. We are also the first to examine general post-settlement litigant finance in the U.S., which is the type of funding many NFL players were reported to have obtained. Our comprehensive data set includes approximately 225,593 requests for funding from 2001 throughout 2016.

With respect to pre-settlement funding, we find that the Funder makes an annual median gross profit of 55% from Mass Tort claims (compared with 60% from Motor Vehicle claims, our control group). We also find that the Funder includes complicated terms in their contracts that make it extremely difficult for clients to understand the actual interest rate they will be eventually be charged. We believe lawmakers should regulate these contracts, banning any unnecessarily complicated provisions and requiring that the effective annual interest rate and total amount due be straightforwardly disclosed.

With respect to post-settlement funding, we find that the effective annual interest rate charged and the profit to the Funder are even greater than for post-settlement fundings – 68% compared to 60% for Motor Vehicle claims. This is striking given that post-settlement fundings present virtually no risk to the Funder. Indeed we find that the rate of default in post-settlement cases is close to zero, which means that this category of advance is “non-recourse” on paper but not on the ground. We therefore recommend that funding in post-settlement cases should be subject to consumer protections similar to those usury laws provide for ordinary loans.

Avraham, Ronen and Baker, Lynn A. and Sebok, Anthony J., The Anatomy of Consumer Legal Funding (August 10, 2020). Cardozo Legal Studies Research Paper No. 618, U of Texas Law, Public Law Research Paper Forthcoming, U of Texas Law, Law and Econ Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3670825 or http://dx.doi.org/10.2139/ssrn.3670825

Legal Services Consumer Panel shows that consumers are shopping blind

The Legal Services Consumer Panel has published a report on consumer decision making. The research shows that consumers indicators such as length of practice and website design when making their decisions.

The Panel has called for independent information to be provided to consumers, with information including transparent costs and previous client reviews and testimonials.

Sarah Chambers, Chair of the Legal Services Consumer Panel, said:

“There has been a patent lack of strategic direction and a sluggish pace in addressing consumers’ need for reliable, comparable quality indicators, almost four years after the Competition and Markets Authority’s findings that lack of information on price and quality hampered competition.

Legal service regulators must now respond by doing two things. Firstly, they must work towards a clear strategic goal of establishing a sector-wide framework for quality indicators. This framework should be rooted in an articulation of what good looks like for consumers. Secondly, regulators must accelerate their pace in this area. The CMA is scheduled to reassess the sector at the end of the year. If they find that little to no progress has been made on this issue, this could create a reputational risk for regulators as it might suggest that consumers are not at the heart of regulation. And of course, consumers will continue to be left without the basic information they need to choose a lawyer.”

Read the full LSCP report

Recently the LSCP has also joined calls for ongoing competence assessments of legal professionals, writing to the LSB to advocate for the move.

Read the LSCP’s letter.