The Bar Tribunals and Adjudication Service has published a second consultation document on changes to the Sanctions Guidance

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

California Board of Trustees introduces new measures to improve the disciplinary system

At its July 23 meeting, the California State Bar Board of Trustees took steps to strengthen the discipline system in the state, these include establishing a special committee—the Committee on the Special Discipline Case Audit—to undertake an analysis into the disciplinary system in the state, with a particular focus on misappropriation of client funds. The Board also directed this new committee, chaired by Trustee José Cisneros, to work with staff to develop recommendations to strengthen regulation of attorney client trust accounts. As well as this the board recommended new regulations for implementation, focused on attorney ethics and discipline. These include:

  • Conducting proactive, random audits of attorney client trust accounts;
  • Requiring some or all attorneys to have their trust accounts regularly audited by Certified Public Accountants;
  • Requiring annual self-funded audits and reporting of client trust accounts;
  • Proposing new and amended statutes, State Bar rules, rules of professional conduct, and other rules governing attorney conduct as well as standards governing discipline for client trust account violations; and
  • Assessing technology and other tools that can be employed in this effort.

The Board expects to finalise a set of recommendations by the end of the year, and if implemented these changes would put California at the forefront of client fund protection in the USA. Boar Chair Sean SeLegue has said: “The Board’s actions today demonstrate resolve to identify and remedy shortcomings in our discipline system that impact the State Bar’s ability to carry out its public protection mission. That includes not only ensuring that attorney ethical violations are properly investigated and prosecuted but also innovative means of preventing misconduct and harm to the public from occurring in the first place.”

Read more about the recommendations here. 

Digging into Algorithms: Legal Ethics and Legal Access

Abstract

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions of employing algorithms for access to justice initiatives represent an under-fit in relation to what algorithms could provide. A lack of precision about algorithms results in blunt protections of professional integrity leaving little room for the potential benefits of algorithmic tools. In other words, this incongruence persists because of imprecise understandings and unrealistic characterizations of the algorithmic technologies and how they fit within the broader technology of law itself. This Article provides an initial set of tools for empowering lawyers with a better understanding of, and critical engagement with, algorithms. With the goal of encouraging a more nuanced discussion around the ethical dimensions of using algorithms in legal technology—a discussion that better fits technological reality—the Article argues for lawyers and non-technologists to shift away from evaluating legal technology through a lens of mere algorithms—as though they can be evaluated outside of a specific context—to a focus on understanding algorithmic systems as technology created, manipulated, and used in a particular context. To make this argument, this Article first reviews the current use of algorithms in legal settings, both criminal and civil, reviewing the related literature and regulatory responses. This Article then uses the shortcomings of legal technology lamented by the current literature and the related regulatory responses to demonstrate the importance of shifting our collective paradigm from a consideration of law and algorithms to law and algorithmic systems. Finally, this Article offers a framework for use in assessing algorithmic systems and applies the framework to algorithmic systems employed in the legal context to demonstrate its usefulness in accurately separating true tensions from those that merely reverberate through the hype cycle. In using the framework to reveal areas at the intersection of law and algorithms truly most ripe for progress, this Article concludes with a call to action for more careful design of both legal systems and algorithmic ones.

Reyes, Carla and Ward, Jeff, Digging into Algorithms: Legal Ethics and Legal Access (2020). Nevada Law Journal, Vol. 21, No. 1, pp. 325-377, 2020, SMU Dedman School of Law Legal Studies Research Paper No. 514,

Solicitors Regulation Authority of England and Wales publishes latest annual reports

The Solicitors Regulation Authority (SRA) has published its suite of annual reports, which cover five core topics, these are: ‘Anti-money Laundering‘, ‘Authorisation‘, ‘Client Protection‘, ‘Education and Training‘ and ‘Upholding Professional Standards‘.

Key findings from the reports include:

  • There has been a year-on-year increase in the number of solicitors qualifying through apprenticeships, firms offering recognised training and solicitors gaining higher rights of audience qualifications.
  • There is further evidence of continued growth of the legal sector in Wales, with Welsh firms now accounting for a combined turnover of over £435 million, up from £370 million five years ago.
  • £10.4 million was paid out from the Compensation Fund, up £2.9 million from 2018/19, with the average payout around £28,000.
  • The Upholding Professional Standards Report, includes a review of the diversity characteristics of solicitors involved in the SRA’s enforcement processes. It has been found that as was the case in a similar analysis published last year, there is an over-representation of Black, Asian and minority ethnic solicitors, and men, in both concerns raised and investigated with the SRA when compared with the diversity of the profession as a whole. Based on this the SRA are currently commissioning independent research into the societal and structural factors that might be driving the over-representation in reports made to us, as well as reviewing our own decision making and working to improve diversity data collection.

Anna Bradley, Chair of the SRA Board, has said: “Publishing this suite of annual reviews is an important part of our ongoing commitment to transparency and accountability. Last year was difficult for everyone, and I’m pleased that our reports show that both we and the profession rose to the challenge, adapting to new ways of working, maintaining performance and services and showing real resilience in the face of the pandemic. Since we published our last set of reviews, we have made significant progress in many areas, not least the work now well underway to understand and address what may lie behind the overrepresentation of Black, Asian and minority ethnic solicitors, and men, in our enforcement processes. Our 2019/20 Upholding Professional Standards report again confirms the historic trends we have already seen and reaffirms how important it is that we continue to push on with this work as quickly as possible.”

Access the full suite of reports here. 

Canadian Bar Association launches truth and reconciliation toolkit for law firms

In June 2021, the Canadian Bar Assocation (CBA) is launching a Truth and Reconciliation toolkit, focused on large Candaian law firms, and helping them to reconcile and renew relationships with indigenous communities in Canada. The toolkit is aimed at firms that are already on a reconciliation journey or would like to begin one, and firms of any size that want to become better allies.

The toolkit contains a comprehensive list of templates, guides and resources to help firms further their reconciliation efforts. It is divided into four sections:

  • Leadership and Governance
  • Learning, Celebrating and Supporting Indigenous Communities
  • Talent Management and Students
  • Law and Legal Traditions

The toolkit includes resources on how firms can ensure their human resource policies are diverse and inclusive and what questions they should ask prospective Indigenous employees or students. It includes guidance on how to ensure firms have a cultural competency lens on their hiring processes. The toolkit also includes a section on Indigenous law and legal traditions is a reference hub for comprehensive glossaries, terminology guides, and many other resources to understand everything from the Indian Act to the United Nations on the Rights of Indigenous Peoples and how they apply to the Canadian context.

CBA President Bradley Regehr has said “Whether you are just beginning your reconciliation journey or are already on your way, there are tremendous resources here to help you learn to be a better ally, engage with Indigenous advisors, immerse yourself in Indigenous culture, consider ways to recruit and retain Indigenous talent, and much, much more.”

The toolkit comes in the wake of the 2015 Truth and Reconciliation Commission, which called for action withing the legal profession. The CBA began in 2016 by committing to do its part to advance the calls to action that fit within our mandate. It established a Truth and Reconciliation Task Force, created a dedicated website and, with NVision Insight Group, developed an accredited educational program called The Path: Your Journey Through Indigenous Canada to educate lawyers about the history of Indigenous-settler relations and the legacy of the Indian Residential School System. It also partnered with Myrna McCallum to launch her Trauma-Informed Lawyer podcast.

Read more about the toolkit here. 

The Surprising Success of Washington State’s Limited License Legal Technician Program

Washington State launched the Limited License Legal Technician program in 2015, aiming to provide competent, regulated, and reasonably priced legal services to moderate means Washingtonians with family law issues. By 2020, the Washington Supreme Court had soured on the program and voted to sunset it. What happened? For this white paper, we interviewed key stakeholders and looked at the available public data to answer that question.

  • Jason Solomon & Noelle Smith, The Surprising Success of Washington State’s Limited License Legal Technician Program, Stanford Center on the Legal Profession, April 2021.

Available at SLS

Event: Kingsley Napley Spotlight Series – Insights into Legal Services Regulation in 2021: promoting professional behaviours

June; 16, 2021

Online

How can firms better identify behaviours amongst lawyers and staff that pose a risk to its culture and its compliance with SRA regulatory obligations?

Can firms learn to recognise antecedents, structures and behaviours that pose a reputational and regulatory risk and take action to eradicate or at least minimise their prevalence?

In our third and final webinar on entity regulation, we take a close look at four key areas that firms need to have on their radar when reviewing their risk outlook:

• Recognising and understanding the phenomenon of “Groupthink” and the particular risks it poses in the context of law firm culture and compliance;
• Preventing and dealing with allegations of bullying and harassment;
• The concept of fractured cultures: the risks of on-shoring, satellite offices and imported practices; and
• Reducing the risk of behaviours tending towards a lack of integrity and dishonesty.

Our expert panel of speakers will explore and debate these issues, following which we will be publishing a toolkit. This will draw together the practical steps taken from our trilogy of webinars that firms might want to take to ensure that their systems, processes and practices reflect a “good” culture and reduce the risks associated with non-compliance with regulatory obligations.

The panel of experts will be chaired by Iain Miller, Regulatory Partner at Kingsley Napley.

The panel of experts will include:

• Julie Norris – Regulatory Partner at Kingsley Napley
• Kieran Pender – Honorary Lecturer, The Australian National University and Consultant, International Bar Association
• David Gamblin – Lecturer, Department of Organisational Psychology, Birkbeck University of London
• Emily Carroll – Senior Lecturer in Law, Senior Tutor & head of Student Development and Support, Birmingham Law School

Lawyer Ethics for Innovation

Abstract

Law struggles to keep pace with innovation. Twenty-first century advancements like artificial intelligence, block chain, and data analytics are already in use by academic institutions, corporations, government entities, health care providers, and others but many questions remain about individual autonomy, identity, privacy, and security. Even as new laws address known threats, future technology developments and process improvements, fueled by consumer-demand and globalization, inevitably will present externalities that the legal community has yet to confront.

How do we design laws and systems to ensure accountability, equality, and transparency in this environment of rapid change? A solution can be found in a surprising source — the regulation of professional ethics. Lawyers have the capacity to play a critical role both in assessing the risks and benefits of innovation generally and also in deploying innovative tools to enhance the delivery of legal services. This Article is the first to articulate a formal obligation of ethical innovation as a component of professional discipline and licensing rules. This proposal comes at a time when the legal profession is increasingly immersed in innovation — whether measured by the number of “NewLaw” providers, exponentially increasing financial investment in legal tech, or by the American Bar Association’s 2020 Resolution supporting innovation to address the access-to-justice crisis.

Rather than taking a particular side in the debate over whether lawyers and judges should adopt innovations like artificial intelligence or machine learning, this Article acknowledges that technology advancements inevitably are part of modern society, including the practice of law, and advocates for reforms to professional conduct rules to protect individuals in the midst of innovation. This protection is especially warranted when innovation is forced amidst a moment of crisis, for example as seen when the 2020 coronavirus pandemic abruptly halted law practice in its traditional form, canceling office meetings and jury trials and other in‑person interactions. Some lawyers and courts were prepared, others were not. Some clients received the legal advice through virtual consultations or apps, and had their cases decided by judges via Zoom hearings, but many found themselves without the justice they needed. The lawyers and judges at the forefront of ethical innovation before the pandemic hit were the ones best able to serve their clients. Formalizing a duty to innovate as an ethical obligation will make the profession better prepared to serve the public in the future.

(Newman) Knake Jefferson, Renee, Lawyer Ethics for Innovation (April 20, 2021). 35 Notre Dame Journal of Law, Ethics and Public Policy 1 (2021), U of Houston Law Center No. 2021-A-7,

An Appraisal of Professional Legal Ethics and Proper Conduct for Lawyers In Nigeria

Abstract

Members of the legal profession in Nigeria have an enormous responsibility to discharge, not only to their clients but also to the court, the profession, their professional colleagues, and the society at large. However, for some time in the recent past, both the Bench and the Bar have had cause to complain about the conduct of some legal practitioners in Nigeria. It is therefore not surprising that quite often, the public judges the legal profession by the standard of its erring members, hence the need to continue to highlight the various duties and responsibilities of the lawyer and the need for members of the Bar to be fully alive to these duties and responsibilities in order to check the falling ethical standard in the profession, be examples to the society in which they find themselves and ultimately promote the honour and nobility of the profession. Discipline at the bar is very essential. This is because offences, to which the police attach no significance when committed by a medical doctor, may be attended with humiliation and embarrassment when committed by a lawyer. Similarly, a simple act of breach of the law by an accountant, which may not be considered as anything, may form banner headlines in newspapers and magazines if committed by a lawyer. This only stresses the fact that society views lawyers as custodians of a high moral value and distinguished members of the society, whose conduct and activities should serve as a light to the rest of the society. To maintain this standard and meet the high expectation of the society on lawyer, the Rules of Professional Conduct for Legal Practitioners has been put in place to guide and regulate legal practice and the conduct of legal practitioners, especially with respect to their duties and responsibilities to their clients, the court, the profession and the society at large, and of course their rights and privileges. The Rules was made by the General Council of the Bar pursuant to the power conferred on it by section 12 (4) of the Legal Practitioners Act. This paper undertakes a general overview of professional legal ethics for legal practitioners in Nigeria as set out in the Rules of Professional Conduct as well as in the Legal Practitioners Act, Nigeria. Specifically, the paper highlights the general professional responsibility of legal practitioners, the duties of a Legal practitioner to his client, the court of law, the society, the state and the legal profession, as well as the rights and liabilities of legal practitioners in Nigeria. The paper concludes that while a lawyer should be persistent in his pursuit of a cause diligently and erudite in the mastery of the cause he serves, he must realize that his duty is much more than pleading the cause of his client in court or rendering services to him; the lawyer must be a bearer of light; he should be a leader in character and in learning, especially in view of the high expectations of members of society.

Udemezue, Sylvester, An Appraisal of Professional Legal Ethics and Proper Conduct for Lawyers In Nigeria (December 20, 2020).

American Bar Association issues new guidance on remote working and ethical use of technology

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.