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)

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New Zealand Law Society released new rules governing lawyer behaviour

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.

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Legal Services Regulatory Authority of Ireland report highlights 33% increase in complaints about legal practitioners

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)

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“Trusted to the ends of the earth?” An analysis of solicitors’ disciplinary processes in England and Wales from 1994 to 2015

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.

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California approves measures to advance equity in attorney discipline

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.

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ABA releases annual profile of the legal profession

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.

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Lawyer Disciplinary Processes: An Empirical Study of Solicitors’ Misconduct Cases in England and Wales in 2015

Abstract

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.

Citation:

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.

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Four steps legal regulators can take to embrace their data

Data has always been a foundational part of the practice of law. However, the convenience, accessibility, and speed of digital mediums is transforming the discipline from within. Law firms are stepping up the plate leveraging their internal data, as well as industry data to make their practice and delivery of services more efficient and effective. E-Discovery, case predictive technologies and even fledgling artificial intelligence programmes are proliferating across top firms globally. Small and large firms alike are engaging with varying degrees of software to manage information and leverage its value.

It is time legal regulators attempt to match pace. This month ICLR.net is focusing on how legal regulators can start to think about data’s role in improving their regulatory responsibilities. We have identified four preliminary steps to help your institution to start thinking about leveraging data.

1. Start small and close to home: Identify your data sources

Identify consistent incoming sources of data. This may be lawyer registrations, renewals and fees. This “low hanging fruit” often serves as the fundamental data base, which can yield insights such as lawyer demographics and disciplinary patterns.

2. Clean and organise your data

Unwieldy spreadsheets no longer make the grade. Setting your organisation up for success means treating your data properly and preparing it for utilisation. Categorising and cleaning your data in a consistent manner will make things easier down the road. Data should be stored in a clear and structured format, which is both secure and shareable with appropriate access permissions.

3. Collaborate with those who know data

Some institutions may want to call the professionals in from day one. Smaller organisations may be able to tackle the first two steps on their own, but to begin to leverage analytics really requires a professional touch for the best results. You should be looking for a company specialises in data structures and analytics. The legal tech sector is rich with software providers offering data management products, but working with a professional in selecting the best fit for your organisation’s data or building a unique system is what will ensure success. It is key to work with someone with the skills as well as background knowledge and insights into the legal profession and industry.

4. Fostering a data-driven culture

Legal information and data powerhouse Thomson Reuters puts it best:

“Building a data-driven legal practice is not something you assign to a task force, department, or an individual. It requires a buy-in from everyone from the top leadership down.”

In addition, it is worth saying that employees at all levels should be involved in the data system development process, to ensure compatibility and realistic adoption and utilisation of the system. The human resource is what will bring an organisation the strongest return on any data investment.

Is data analytics for your organisation?

Some regulators may believe they are too small or the resource required to harness data is too great. However, these four steps can be completed at various levels, just as law firms of all sizes are engaging in data tools. Ultimately, it will be a matter of survival for regulators to keep pace with those they regulate. Information has a strong multiplier effect, and data analytics has the power to transform regulation and industry’s productivity as a whole.


We are interested in hearing about how your institution is using data to assist in regulation. Let us know! Interested in the power of data in regulation – get involved at this year’s annual conference. Contact Jim McKay (jamesmckay@lawscot.org.uk) to become involved as a speaker or session moderator. 

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Colorado Lawyer Self-Assessment Program yields analytical insights

Colorado Supreme Court Office of Attorney Regulation Counsel started developing its lawyer self-assessment program more than two years ago, immediately after a seminal workshop on proactive, risk-based regulation at the 41st ABA National Conference of Professional Responsibility in May 2015. The new resource is a leading facet of a larger shift toward proactive management-based regulation, which aims to help lawyers practice ethically and soundly in the first place, rather than just reactively imposing discipline after lawyers make mistakes.

The new system provides the regulatory team with real time stats on lawyer engagement and self-assessed professional performance. It highlights the professional objectives scoring the highest and lowest across all respondents, providing the team with evidence to support further educational program development. The platform also has the ability to create customized lists of continuing legal education (CLE) resources based on each respondent’s own personal benchmarks and areas of need. These lists make yearly CLE planning fast and easy for lawyers, and keeps them focused on the most effective resources for their needs.

Jon White, staff attorney at the regulator, writes “The practice of law will always be challenging. The “ounce of prevention is worth a pound of cure” approach of the proactive practice program seeks to reduce some of that stress. The self-assessments give lawyers the blueprint to build an ethical infrastructure. Lawyers, in turn, benefit from enhanced peace of mind. Clients benefit from exceptional service. It is a win-win for all.” The insights generated by the program’s data is informing the regulator where practitioners need more assistance, and where there may be weaker points in the sector as a whole. Staying ahead of this issues protects the public and strengthens the jurisdiction as a whole.

Read more about Colorado’s Lawyer Self-Assessment Program Here

 

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Transparency lies at the heart of Consumer Satisfaction

In January, the Legal Services Board (LSB) of England & Wales released its “Regulatory Performance: Transitional Assessment Review” looking at the transitional assessment of each legal services regulatory body against the LSB’s regulatory performance standards. The report found that it had “sufficient assurance that the regulatory bodies have met the minimum required level of performance against the majority of expected outcomes”.

Transparency across the legal services market lies at the heart of consumer satisfaction. Recent Competition and Market Authority statistics found that before choosing their legal service provider 85% of consumers want better access to information, 53% want information about price, and 37% of consumers what to know about the quality of the service they would receive. In response, the Solicitors Regulation Authority released new price transparency rules, which requires regulated firms to publish price and service information on their websites.

Since 6 December 2018, all solicitors firms had to publish cost information in relation to conveyancing, probate, debt, employment and immigration. The new rules dictate that firms must provide a total cost or an average or range of costs, as well as explain the basis of these charges, including any hourly rate or fixed fees. Firms also must be clear on whether VAT is included, while also highlighting likely disbursements, and their costs. Any conditional or damages-based fees must be fully explained to clients who may have to make payments.

In addition to price transparency, firms are also required to ensure consumers under stand the services they require and are receiving. The rules demand firms

  • Explain what services are included for the quoted price
  • Highlight any services not included within the price, which a client may reasonably expect to be
  • Include information on key stages and typical timescales of these, and
  • Publish the qualifications and experience of anyone carrying out the work and of their supervisors.

SRA’s ‘Looking to the Future’ programme is based on a sound argument that law firms must become more transparent if they are to survive. Paul Philip, SRA Chief Executive, said: “Publishing information on price, services and protections will not only benefit the public, but will also help law firms win new business. Research shows that people struggle to find clear information about the services firms offer and think using a solicitor is more expensive than it actually is. We are providing guidance and support for firms to help them meet the new requirements and make the most of the opportunities they bring.”

The SRA has taken consumer protection and transparency a step further, introducing a new Digital Badge. Provided via software which will make sure only regulated firms can display it, the badge will show online visitors which firms are regulated and provide them with a link to information on the protections this provides. Displaying the badge will help firms differentiate themselves from unregulated providers. Use of the badge is initially voluntary but will become a mandatory requirement during 2019.

Challenges of Transparency

Due to the business structures of many law firms, publishing fees is no straightforward matter, leading to some to use a confusing blend of charts, costs schedules, calculators and costs estimates. It is the unknown factors of pursuing legal cases which can alter costs. Russell Conway, senior partner at Oliver Fisher, notes, “It’s the wiggle room issue which is going to be the bellwether as to how successful this project is”.

Price transparency undoubtedly remains vital to consumer protection and satisfaction. However, there are concerns that some consumers may be heavily influenced by price, rather than by skill and expertise. David Kirwan questions if, in a new transparent pricing environment, consumers will truly stop and weigh skills and expertise, rather than revert to low costs. These concerns are not isolated to the UK market, as globally practitioners have expressed concerns about an eventual ‘race to the bottom’. Kirwan notes that “How we as an industry respond, and the way in which we convince consumers that it’s worth potentially paying more to receive a high-quality service, will be crucial if we are to retain the high standards for which this country’s legal sector has become known”.

Complaints Transparency

In considering the question of quality of legal services, greater transparency and public access to disciplinary records is also needed. One of the key findings of the LSB report highlighted that regulators must continue to maintain records of disciplinary sanctions in their official registers. The SRA has issued guidance to help firms clearly understand their obligations under Rule 2.1 of the SRA Transparency Rules to publish complaints. This guidance includes information on complaints handling procedure details, how and when a complaint can be made to the Legal Ombudsman, and details about how and when a complaint can be made to the SRA. Sarah Chambers, chair of the Legal Services Consumer Panel (LSCP) stated that “Making enforcement data available to consumers is an area that will particularly benefit from consistency in approach”.

Ultimately, providing the public with as much clarity and information as possible when it comes to the legal services they require can benefit not only the consumer, but promote and ensure quality and competence of the industry as a whole. The new transparency rules promulgated by the SRA in December 2018 will improve public access to legal services, ensuring such information on legal service providers is readily available to consumers.


Interested in transparency and enforcement? Contact us and share what is happening in your jurisdiction. There are also opportunities to get involved with the topic at the annual conference. Contact Jim McKay (jamesmckay@lawscot.org.uk) to become involved as a speaker or session moderator.

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