The State Bar of California has published its second digital annual report. The report was conceptualised following the significant changes in the legal industry brought on by the COVID-19 pandemic, creating rapidly changing policy goals and public protection requirements.
Donna S. Hershkowitz, Interim Executive Director of the state bar had said “Despite the onset of the challenges brought on by the coronavirus, Californians deserve access to a legal system that serves them with integrity and fairness. The State Bar quickly adapted to ensure that our essential work protecting the public continued. The publication of this report is one of many initiatives we are undertaking to support our strategic goals of transparency, accountability, and proactive communication.”
The 2020 report highlights changes implemented by the State Bar to address the pandemic including:
- The establishment of a fully remote call centre to maintain service to the public.
- Shifting examinations to remote administration
- The creation of a new licensing programme for law graduates to start practice before passing the bar exam
- Transitioning the State Bar Court to remote proceedings
- Distributing $11.75 million through the Client Security Fund.
Read the full report here.
The Singapore Ministry of Law (“MinLaw”) has introduced a new free mediation programme for parties such as couples and wedding vendors who have been impacted by new COVID-19 restrictions. The MinLaw COVID-19 (Wedding) Mediation Programme first took effect on 8 May 2021 and was introduced in recognition of the fact that many parties had to either cancel, reschedule or downsize events, altering the goods and services provided. However, some have been unable to come to a decision around the provision of the services through direct negotiation.
MinLaw has suggested that by undertaking mediation parties may encounter such benefits as higher rates of settlement, time and cost savings, improved relationship between parties and confidentiality. MinLaw’s programme will require both parties to agree to mediation, with mediation facilitated by a neutral trained professional in a non-adversarial and confidential setting, and via videoconference where applicable. Mediators will facilitate the discussion and help parties work towards a mutually acceptable solution.
Read more about the programme here.
This paper considers the challenges faced by clinical legal education programs in responding effectively to the COVID-19 pandemic. Client needs are different and more acute. They also need to be balanced with the safety of students and staff. Services will need to be delivered remotely. The article considers some of the key legal issues generated by the pandemic, highlighting the need for clinics and other legal service providers to respond to these emerging legal and related needs. In responding, clinics will be best served by adhering to their pedagogical principles in the design of new services and in reshaping existing practices. This should enable clinical programs to ensure that the experience of students remains distinctive, albeit different.
Giddings, Jeff, Clinic in the Times of COVID-19 (June 15, 2021). Monash University Faculty of Law Legal Studies Research Paper, Forthcoming,
Available at SSRN.
The Bar Standards Board (BSB) has published the results of an independent review of the August 2020 Bar Professional Training Course (BPTC) exams, the exams used by the Board as part of the qualification process for barristers. The review was commissioned by the BSB in November 2020 and was conducted by Professor Rebecca Huxley-Binns, the Pro-Vice-Chancellor (Education) of the University of Hull and Dr Sarabajaya Kumar, an interdisciplinary social scientist based at University College London, who is also an equalities consultant and a disability activist.
The Review found that candidates experienced a number of different challenges, including difficulty in changing to computer-based assessments and challenges related to online proctoring, when sitting the examination remotely in August 2020, due to a variety of different factors. Based on these the review makes a number of recommendations, which have been collated by the BSB into an examination action plan, designed to ensure that changes are actioned. The Action Plan is grouped into five main themes and includes measures to:
- improve the BSB’s communication and engagement with students and training providers;
- make the centralised assessments more accessible and inclusive, particularly when candidates require reasonable adjustments;
- make the BSB’s approach to policy and process development in this area more inclusive by improving the regulator’s engagement with key stakeholders;
- introduce a critical incidents policy and improve data protection and project management;
- clarify the roles and responsibilities of the BSB and training providers in the management of the centralised.
Responding to the Review, the Chair of the BSB, Baroness Tessa Blackstone, said
“First and foremost, I should like to apologise again to all those students who faced difficulties completing their exams last August. The BSB had to move from pen and paper based assessments delivered by training providers to arrange computer based assessments in a very short period of time in the middle of a global pandemic. Ordinarily, such a change would have taken at least 12 months to plan and to pilot. I am pleased that the report finds that the BSB was right to seek to offer computer based assessments and right to contract with Pearson VUE to deliver the exams, including to run remote proctoring for the students sitting the exams online and to book testing centre spaces for students unable to take the exams remotely. Around 75% of BPTC exams were completed but far too many students faced difficulties which should never have occurred. The BSB’s staff worked very hard to implement the new arrangements for the exams but we very much regret that many students had a difficult experience both in booking and sitting the exams. The Board has welcomed the Review by Professor Huxley-Binns and Dr Kumar. It has approved the Executive’s proposed Action Plan and will ensure that the Review’s recommendations are put into effect. The Board has discussed the Action Plan with Professor Huxley-Binns and Dr Kumar and they fully endorse the Plan as meeting the recommendations in their Review. I am pleased that the Review found no failure of governance. The Board is determined to ensure that the BSB learns the lessons for the future. Those lessons will be of great help to the BSB and to future students. We are very grateful to all those who have contributed to this Review and I should like once again to repeat my apology to those who had difficulties last August.”
Read the BSB’s comments here, or read the full review here.
A newly released survey of Scottish solicitors, by the Law Society of Scotland, has found that more than three-quarters of respondent think that aspects of remote civil court work should continue post-pandemic. The results found that the majority of civil court practitioners have indicated that they think remote hearings work well for procedural and uncontentious matters, however far fewer of the survey respondents thought that more complex hearings should be carried out remotely.
The survey found that:
- 78.5% of respondents said they would like remote court hearings to continue after the pandemic. Of those, 91% said they thought procedural hearings worked particularly well, and almost all, at 99%, saying they would like to see them continue remotely.
- However 5% thought proofs, a civil court hearing which is determined by a judge or sheriff, and 3% thought evidential hearings, such as a tribunal, worked well remotely. A quarter of respondents thought first instance debates worked well.
- 32%, stated that they had no practical difficulties when participating in remote hearings, however 45% found it challenging to obtain clients’ instructions during remote proceedings. 41% of respondents thought that their clients struggled to either understand or participate and almost a quarter of solicitors, at 23%, found it more difficult to articulate their position.
- The vast majority of respondents at 91% indicating that it saved travel time, 75% that it saved waiting time, 69% that it reduced costs and over half, at 55%, said it was more efficient than being personally present in court.
- Concerns were raised in relation to the difficulties in assessing witness credibility and reliability remotely and respondents also said the lack of opportunity for proper face-to-face interaction with other agents, witnesses, and with sheriffs and judges, hindered effective participation. There were also issues with clients feeling disengaged from proceedings and problems with technology, including access to suitable devices and connectivity issues.
Amanda Millar, President of the Law Society of Scotland, said: “Covid-19 has instigated enormous change in the way we all work over the past year. The legal profession has adapted to this rapid change, however examining what has and has not worked well in relation to online proceedings will be essential as we begin to look at how civil courts should operate post-pandemic. We can draw useful insights from the survey findings and they will be helpful in considering what aspects, if any, of remote hearings could or should be incorporated into the civil court procedure longer term. While many of our members have indicated that remote hearings should continue in some form, there should be provision for in-person hearings, particularly in relation to more complex cases, but also for procedural hearings when required.”
Read more about the survey and the results.
New bar score data from the ABA Section of Legal Education and Admissions to the Bar, released on the 23rd of April 23, showed an increase in the scores compared to 2019 on both the ‘ultimate’ pass rate and for first-time takers, with the aggregate score of law graduates taking the exam for the first time rising by 3% to an 82.83% pass rate.
The data found that:
Students taking the bar exam for the first time in 2020 achieved an aggregate 82.83% pass rate (83.66% with Diploma Privilege), representing a 3-percentage point increase over the comparable 79.64% pass rate for 2019. Diploma Privilege considers those waived into the practice of law without taking the bar because of special rules during the pandemic.
And that 89.99% of 2018 law graduates who sat for a bar exam passed it within two years of graduation (90.10% with Diploma Privilege). This two-year marker, referred to as the “ultimate” rate is slightly better than the 89.47% comparable figure for 2017 graduates. The report noted that 94.98% of all graduates sat for a bar exam within two years of graduation, and that schools were able to obtain bar passage information from 98.84% of their 2018 graduates.
Under a rule change in 2019, the 197 ABA-approved law schools still accepting students are required to have at least 75% of graduates who sit for a bar exam pass within two years of graduation. Schools found out of compliance have at least two years to meet the rule, known as Standard 316.
“These reports over the years have provided important consumer information for students considering whether and where to attend law school and for others with an interest in legal education,” said Bill Adams, managing director for ABA accreditation and legal education.
Read more about the data.
The American Bar Association Standing Committee on Ethics and Professional Responsibility has released a formal opinion cataloguing the relevant model rules and technological considerations that lawyers should be aware of when practising virtually. The opinion (Formal Opinion 498) identifies some of the minimum requirements for virtual practice under the ABA Model Rules of Professional Conduct as well as suggesting several best practices to meet ethical obligations in a virtual setting.
The opinion states that “When practising virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology,” the opinion said. “In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information.” Noting that the “duty of supervision” requires lawyers who supervise others to “make reasonable efforts to ensure” that their direct reports comply with the model rules, particularly if these colleagues are still working virtually.
The best practices cover hardware devices and software systems; accessing client files and data; using virtual meeting platforms and videoconferencing; and virtual document and data exchange platforms, among others.
Read the full opinion here.
During the Canadian Bar Association (CBA) AGM, held on the 18th February 2021, the CBA released its new report on COVID-19 and the justice system ‘No Turning Back’. The report, which was produced by a special task force, has concluded that there can be no return to the way things worked in the legal profession and the justice systems before the pandemic.
The report suggests that the pandemic has brought changes to the Canadian legal profession which have been long-awaited. The report includes a number of recommendations, to the CBA, around continuing and building on these changes in order to create a more innovative and effective justice system, which the population can have confidence in. Its recommendations include:
- Collaborate with domestic and international justice system partners on best practices
- Ensure that changes enhance access to justice instead of detracting from it by minimizing unintended consequences, including breaches of privacy
- Consider the impact on marginalized groups of implementing AI and other emerging technologies
The task force, established in April, 2020, brought together CBA members and justice system partners from across the country to assess the immediate and evolving issues for the delivery of legal services resulting from the COVID-19 pandemic.
CBA President, and task force Co-Chair, Brad Regehr has said “The pandemic kick-started a modernization of the way the legal profession and the justice system provide services – something the CBA has been advocating for a long time. We now need to make sure these changes are sustainable and that they are properly implemented to enhance access to justice. ”
Read the full report here.
A syllabus is a contract, an introduction, a statement of values, a todo list, a plan. It is often the point of first contact between professor and student, or between student and an area of law. Beyond the technological challenges, for many professors Fall 2020 was also the first-time coming up with a camera policy or amending attendance expectations to consider a pandemic. For some, this is also the first time explicitly engaging in antiracist pedagogy in the classroom or considering practices like trauma informed teaching. This essay offers a practical, “nuts and bolts” walkthrough of promising practices for each part of the syllabus while also touching on complex pedagogical questions such as issues of accessibility, setting a cooperative tone for class, and preparing students for sometimes challenging discussions. This essay is not only about the transition to online teaching, but more broadly about shifts within legal education that only promise to become more relevant. The essay is a practical and helpful guide for those planning future semesters, even in a post-pandemic world.
Schendel, Sarah, The Pandemic Syllabus (October 27, 2020). Denver Law Review Forum (Forthcoming 2020), Available at SSRN: https://ssrn.com/abstract=3720131