The Bar Standards Board (BSB) has welcomed the publication of a second consultation document on changes to the Sanctions Guidance by the Bar Tribunals and Adjudication Service (BTAS). These guidelines are used by Disciplinary Tribunals in deciding what sanctions to impose in cases of proven professional misconduct by barristers in England and Wales.
This consultation seeks views on an amended draft of the full revised Sanctions Guidance and follows BTAS’s response in July to the first consultation which took place earlier in the year.
It is important the final guidelines have the support of the public and the profession, as these sanctions are key in protecting consumers and promoting trust in the legal profession.
Read the full story here
The Bar Standards Board (BSB) has published a new statistical analysis examining the outcomes of complaints made about barristers in England and Wales between January 2015 and October 2019. The research was particularly focused on investigating the relationship between the outcomes of, and the likelihood of a complaint being made, and specific characteristics of barristers, particularly gender and ethnicity.
Within the analysis, the BSB has divided the complaints into two categories “internal complaints” (complaints raised by the BSB based on information received from sources, such as self-reports of potential professional misconduct; referrals from other departments of the BSB; referrals from other regulators; judicial criticisms; and public/media coverage of barristers’ behaviour) and “external complaints” (complaints raised by members of the public, legal professionals or other external sources, who wished to make a formal complaint about a barrister).
Key findings from the analysis include:
- Male barristers who were the subject of a complaint were around 2.1 times more likely to have their case referred for disciplinary action compared with female barristers ;
- Male barristers were around 1.3 times more likely than female barristers to be subject to an “internal complaint”;
- Compared to White barristers, barristers from minority ethnic backgrounds were found to be around 1.7 times more likely to be subject to an “internal complaint” compared with White barristers;
Commenting on the findings, BSB Director of Legal and Enforcement, Sara Jagger, said:
“This report illustrates our commitment to transparency in the way in which we deal with reports about barristers’ conduct. Our decision making is regularly reviewed to ensure that it is of a high quality and free from bias and it is essential that we keep monitoring these issues. Our decision-making processes have changed significantly since the period covered by this report and later this year, we will be reviewing the impact of those changes on the outcomes for barristers with different diversity characteristics.”
Read more and access the report on the BSB’s website.
The New Zealand Law Society | Te Kāhui Ture o Aotearoa is calling for feedback on new draft guidance designed to support the legal profession to comply with new rules governing the behaviour of lawyers.
The amended rules clarify the standards of behaviour expected of lawyers when engaging with clients, colleagues and others, with an emphasis on tackling bullying and harassment. Consultation on the guidance document is open from the 1st of June until the 16th of July. With the new rules coming into place on the 1st July.
The guidance is split into five sections:
- reporting misconduct and unsatisfactory conduct
- the clear expectations on law practices to have policies and systems to prevent and protect employees and other people that it engages with from bullying, discrimination, harassment or violence, and a designated lawyer to report to the Law Society about this conduct
- support for people affected by bullying, discrimination, harassment or violence
- what to do if you are the subject of a report or complaint
- terminating instructions in the event of bullying, discrimination, harassment or violence by a client
New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati has said “This guidance is intended to be a practical tool to help law practices understand their new obligations under the rules. Bullying, discrimination, racial or sexual harassment and other prohibited behaviour have no place in any profession. Everyone has an individual part to play in securing the well-being of our legal community. We also need to ensure the public can have trust and confidence in the legal profession.”
Read more about the consultation and respond here.
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)
The New Zealand Law Society | Te Kāhui Ture o Aotearoa will implement new rules on lawyer behaviour, with an emphasis on tackling bullying and harassment, from July the 1st. The amended rules will clarify the standards of behaviour expected of lawyers when engaging with clients and colleagues.
New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati said“Bullying, discrimination, racial or sexual harassment and other unacceptable conduct has no place in any profession. Changes to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC) were part of the recommendations by the Law Society’s Independent Working Group chaired by Dame Silvia Cartwright. Implementing these changes is the most significant regulatory step available to the Law Society to tackle the behaviour highlighted by the Legal Workplace Environment Survey in 2018.”
The amended rules will include clarifications around the definitions of bullying, discrimination, harassment, including racial and sexual harassment, and other unacceptable conduct. As well as these clarifications the rules include new reporting requirements for notifying this conduct to the Law Society to ensure that there is an appropriate regulatory response.
Law practices in New Zealand will be required to have policies in place to protect staff and clients, as well as this they will need to have an investigative process in place for allegations of unacceptable conduct. In addition, each practice will need to designate a lawyer to report annually to the Law Society on any investigations undertaken by their law practice. The emphasis of the new rules is on the responsibility of each lawyer and law practice to deal with and report unacceptable conduct, rather than individual lawyers having to come forward.
Ms Epati has said “Ahead of the final Rules being approved by the Minister of Justice earlier this year, widespread consultation took place with the profession. I’m confident that these changes have the support of the profession. Everyone has an individual part to play so the public can have trust and confidence in the legal profession. While these Rules are one way the Law Society can bring about change, real and long-lasting change will only take place when everyone takes responsibility. That may be showing up to support a colleague, calling out inappropriate behaviour or helping to build a supportive, non-discriminatory environment within your legal workplace.”
Read more about the new rules here, or read the updated rules here.
On April the 7th the LSRA published its first complaints report for 2021 which shows it received 805 complaints in a six month period, demonstrating a 33% increase on the previous period.
The report, entitled Independent Complaints Handling, gives details around the LSRA’s investigative activities in the reporting period of 7 September 2020 to 26 March 2021. The report includes data on the number and nature of the complaints, as well as for the first time including details of the LSRA’s handling of 44 complaints about online advertising by solicitors, which it took over in December 2020.
Data collected within the report included:
- The LSRA’s Complaints and Resolutions Unit received a total of 805 complaints in the reporting period, up 33% from the previous six month reporting period (when complaints totalled 605).
- A total of 783 complaints related to solicitors and 22 related to barristers, reflecting the higher number of solicitors and their greater level of contact with consumers.
- A total of 462 complaints (57%) alleged misconduct, with 291 (36%) complaints about alleged inadequate legal services and a further 52 (7%) relating to alleged excessive costs (overcharging).
- The main areas of legal services that attracted complaints were wills and probate, litigation, family law and conveyancing.
As a result of these complaints
- A total of 294 complaints were closed during the reporting period, including 104 complaints determined as inadmissible.
- A total of 91 complaints were resolved with the assistance of the LSRA.
- The LSRA made determinations in six complaints. Of these, five were complaints about inadequate legal services and one related to excessive costs. In these six cases, which related to legal services provided by solicitors, the LSRA considered that the legal services were inadequate or the costs excessive and upheld the complaints.
This is the first LSRA complaints report to include details of determinations of the Complaints Committee, which is independent from the LSRA in its decision-making.
- A total of 31 complaints about solicitors were investigated by the independent Complaints Committee which was set up in November 2020 to hear misconduct complaints. Of these, the Complaints Committee upheld two complaints, while five were not upheld and one was withdrawn.
- Of the two misconduct complaints upheld by the Complaints Committee, one related to communications with the complainant, who was the joint owner of a property that had been sold. The Complaints Committee upheld the complaint but no directions or measures were imposed by the Committee in the case.
- The second case related to an allegation that a legal practitioner had misled his client as to the work undertaken. The solicitor was directed to make a payment to the complainant of €500 as compensation for financial or other loss suffered by the complainant.
- A total of six cases were referred by the Complaints Committee to the independent Legal Practitioners Disciplinary Tribunal (LPDT) for further investigation. A total of 16 cases currently remain under investigation by the Complaints Committee.
Complaints and concerns about advertising
On publishing the report, the LSRA’s Chief Executive Dr Brian Doherty said:
“The LSRA’s complaints and resolutions staff managed a significantly higher volume of both inquiries and complaints, with a third more complaints in comparison to the previous reporting period. The increase in the number of complaints handled and concluded is particularly notable given the challenges faced by staff, complainants and legal practitioners arising from the Covid-19 pandemic. This report contains details for the first time of complaints that have been determined to be admissible and where the LSRA has attempted to informally resolve or to mediate the issue of complaint between the legal practitioner and the complainant. It also contains details for the first time of complaints and concerns about the advertising of legal services received since the LSRA took over responsibility of this important area in December 2020. I strongly encourage all legal practitioners to review their online and other advertising to ensure that these are in line with the new Advertising Regulations 2020 I am still heartened by the engagement of both legal practitioners and complainants in efforts to resolve complaints at an early stage. I am concerned, however, by the reluctance of some legal practitioners to address concerns and complaints that are raised with them in a productive and proactive manner. In our experience to date, early and open engagement with the complaints process will always lead to a quicker and more effective resolution of the matter at hand.”
Read the full report here. (PDF)
A newly released study by Boon and Whyte has collected data on lawyer’s discipline from across different eras of regulation in England and Wales. The data collected allows for a comparison of lawyer discipline before and after the introduction of the Legal Services Act 2007. The act led to the creation of separate regulatory and representative bodies for each of the legal professions in England and Wales.
The paper raises many interesting questions, including why disciplinary case brought by the Solicitors Disciplinary Tribunal (formed as part of the creation of the Solicitor’s Regulation Authority), have remained steady, despite an increase in the number of Solicitors joining the profession. The report also found that the number of disciplinary cases brought against Solicitors is fairly regular across all levels of the profession.
Read the full report here, or read legal academic, Professor Richard Moorehead’s comments here.
At its July 16 meeting, the State Bar Board of Trustees approved a plan aimed at improving equity in the attorney discipline system, following up on the bar’s first-ever study on racial disparities in the disciplinary system. The first group of reforms aim to expand representation by counsel when an attorney faces a disciplinary investigation.
“The State Bar is moving forward with concrete, specific actions that we believe will not only target the disparities noted in Professor Farkas’s research, but also make the discipline system work better for everyone.” said Donna S. Hershkowitz, Interim Executive Director.
The study found that lack of representation by counsel during an investigation into an attorney by the State Bar was a statistically significant predictor of later discipline, the report also revealed that African American respondents were represented by counsel about half as frequently as other groups in the study.
The State Bar has said that they will:
- Measure and report data on representation for attorneys in the discipline system;
- Pilot-test messages informing respondent attorneys of the value of representation by counsel in disciplinary proceedings to evaluate the most effective method of encouraging representation; and
- Work with the Association of Discipline Defense Counsel to develop and distribute a roster of attorneys who could provide low-cost and pro bono case evaluations to respondent attorneys.
Read the full report, or read the State Bar Association’s announcement about the changes.
The American Bar Association has published its annual profile of the legal profession in the US. The report uses the data gathered over the course of the year to analyse changes and developments in the profession across the country.
Subjects covered include women and minorities in the profession, legal technology, pro bono, pay, legal education, lawyer wellbeing and lawyer discipline.
The link to download the full report is available here.
The Legal Services Act 2007 effected major changes in the disciplinary system for solicitors in England Wales. Both the practice regulator, the Solicitors Regulation Authority, and a disciplinary body, the Solicitors Disciplinary Tribunal, were reconstituted as independent bodies and given new powers. Our concern is the impact of the Act on the disciplinary system for solicitors. Examination of this issue involves consideration of changes to regulatory institutions and the mechanics of practice regulation. Drawing on Foucault’s notion of governmentality, empirical evidence drawn from disciplinary cases handled by the SDT and the SRA in 2015 is used to explore potentially different conceptions of discipline informing the work of the regulatory institutions. The conclusion considers the implications of our findings for the future of the professional disciplinary system.
Boon, Andrew and Whyte, Avis, Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015 (January 31, 2019). (2019) 39:3 Legal Studies. Available at SSRN.