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.

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Demand-Side Justice

Abstract

The civil justice gap is well-known, well-documented, and widening. Although judges, practitioners, and scholars have attempted for more than fifty years to increase the supply of civil legal services available to those in need, demand continues to dramatically outstrip supply. This article argues that given the static (or worsening) state of the civil justice gap, and the millions of Americans who do not even seek legal help for problems that otherwise would fall within that gap, legal literacy education is paramount. Our colleagues in the public health profession are lightyears ahead of the legal profession in using health literacy to prevent unsustainable demand. High levels of health literacy lead to fewer emergency room visits and hospital stays and better health outcomes. Health literacy is taught as part of K-12 education. Consequently, teaching legal literacy to K-12 students has the potential to reduce civil legal needs and thus demand for legal aid. Legal literacy might also mean that Americans are better able to identify when their problems are legal in nature, come to legal aid before a problem is too far gone to solve, come to legal aid with more realistic expectations about results, and to represent themselves in court should they have to. After decades of chasing after disappointing supply-side solutions, it is time to look at demand.

Rubin Gomez, Alissa, Demand-Side Justice (March 1, 2021).

Read the full article on SSRN.

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Solicitors Regulation Authority publishes data on the profile of solicitors in its enforcement processes

As part of its wider work on providing clear reporting on the operational aspects of its work, the Solicitors Regulation Authority of England and Wales (SRA) have published their second annual report on their enforcement activities. The ‘Upholding Professional Standards’ report summarises the handling of over 9,500 reports and 3,600 investigations in the 2018/19 period. Particularly looking at issues such as sexual harassment, the use of non-disclosure agreements, and money laundering.

The report includes a review of the diversity characteristics of solicitors involved in the enforcement processes over the course of the year. This includes those reported to, investigated by, or who have had action taken against them by either the SRA or the Solicitors Disciplinary Tribunal (SDT).

Key findings of the review include:

  • 26% of concerns raised with the SRA related to black, Asian and minority ethnic (BAME) solicitors, while 18% of the overall solicitor population is BAME. This figure rose to 32% in cases that were investigated.
  • 67% of concerns raised with the SRA related to men, whereas 49% of the overall solicitor population is male. This figure rose to 73% in cases that were investigated.
  • Cases concluded by the SRA or at the SDT for ethnicity were in line with the representation seen at the investigation stage, with a further uplift to 85% for findings against men at the tribunal.
    The data available for disability was very limited, making meaningful analysis difficult.

Anna Bradley, Chair of the SRA said: “We are committed to transparently reporting the details of our operational work and I am pleased that this year we have been able to include the profile of people in our enforcement processes. This again shows an over-representation of black, Asian and minority ethnic solicitors, and men, in both the concerns raised with us and then investigated, when compared to the diversity of the profession as a whole. We must look at what is happening here. We have made significant changes to our enforcement processes and reformed our regulation over the last few years, but the picture remains the same and it is unclear why that is the case. Since 2007 we have held three independent reviews into our processes to make sure they are fair and free from bias and none found any evidence of issues with our processes. Notwithstanding this, we will look again at our decision making. Importantly we think it is now time to also examine why we are seeing so many more concerns about BAME solicitors reported to us than should be the case in the light of the profile of the profession. It is a picture seen across many regulators; some of the potential factors may be wider societal issues and others may be particular to the legal sector. So we will commission independent research in this complex area, reaching out to the profession, key groups and expert voices as we shape this work.”

Read the report here, or more about the SRA’s comments here.

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Entity Regulation, Litigation Rights and the Changing Meaning of Professionalism at the Bar of England and Wales

Abstract

Entity Regulation, Litigation Rights and the Changing Meaning of Professionalism at the Bar of England and Wales The Legal Services Act 2007 provided a framework for a liberalised marketplace for legal services. The most significant responses to this by the Bar appear in the Bar Standards Board Handbook, which was first released in January 2014. This included changes allowing for barristers to engage in litigation and enabling the Bar Standards Board to regulate entities rather than just individual barristers. This article places these changes within the existing theoretical understanding of the legal professions and professionalism, and argues that they open the door for a significant shift in the way that the discourse of professionalism is used in relation to the Bar.

Mason, Marc, Entity Regulation, Litigation Rights and the Changing Meaning of Professionalism at the Bar of England and Wales (2020). Legal Ethics, Forthcoming,

Read the full article on SSRN. 

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Keeping Lawyers’ Houses Clean: Global Innovations to Advance Public Protection and the Integrity of the Legal Profession

Abstract

Around the globe regulators are rethinking the scope of their mandates and responsibilities. They are assuming more expansive roles rather than limiting their efforts to disciplining lawyers after misconduct occurs. This Article examines such regulatory initiatives in three areas. First, it discusses developments related to proactive management-based programs in which regulators partner with lawyers who self-assess their firms’ management systems. Data reveal that such assessments help lawyers avoid problems through developing their firms’ ethical infrastructure. When misconduct occurs, injured persons often seek monetary redress. These persons may not be able to obtain recovery unless they have suffered substantial damages to support a contingency fee lawyer pursuing legal malpractice claims. The Article considers how two jurisdictions now provide injured persons an alter-native avenue for seeking monetary recovery. The third category of regulatory initiatives deal with the serious problem of sexual harassment in the legal profession. Finally, the survey of regulatory programs reveals how U.S. regulators can learn from the systematic manner in which regulators in other countries study proposed changes and collaborate with other stake-holders in examining and designing new programs to improve the delivery of legal services, advance public protection, and promote the safety and diversity of lawyer workplaces.

Fortney, Susan Saab, Keeping Lawyers’ Houses Clean: Global Innovations to Advance Public Protection and the Integrity of the Legal Profession (September 9, 2020). Georgetown Journal of Legal Ethics, Vol. 33, pp. 891-930, 2020, Texas A&M University School of Law Legal Studies Research Paper No. 20-26, Available at SSRN: https://ssrn.com/abstract=3689907

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Conference: AI and the Rule of Law – Regulation and Ethics

 Friday 20th November 2020
 IALS, London

A call for papers  is announced for the Information Law and Policy Centre’s Annual Conference, this year supported by Bloomsbury’s Communications Law journal.

Abstracts of between 250-300 words and some brief biographical information should be sent to Eliza Boudier, Fellowships and Administrative Officer, IALS: eliza.boudier@sas.ac.uk

Further details at: https://www.ials.sas.ac.uk/events/event/22471.

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Federation of Law Societies of Canada approves recommendations towards reconciliation with Indigenous peoples

The Federation has adopted an overarching framework to guide it on the path to reconciliation with Indigenous peoples in Canada. Laid out in a report from the Federation’s TRC Calls to Action Advisory Committee (“Advisory Committee”), the framework is rooted in the recognition of the significance of Indigenous legal orders, legal principles, and the perspectives and experiences of Indigenous peoples.

The framework encourages a broad approach to reconciliation while specifically addressing two of the Calls to Action in the Truth and Reconciliation Commission’s (TRC) Final Report, which highlighted the need to raise awareness and competence among all legal professionals and law students in Canada as it relates to Indigenous peoples.

Read the full story.

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LSB extends call for evidence on ongoing competence

The deadline for the LSB’s consultation on ongoing competence has been extended to the 26th June.

The call has been extended due to the ongoing pressure on respondents, and the need to divert resources, due to the ongoing COVID-19 crisis.

The LSB has said: “We are asking respondents to consider four themes: 

  • Defining competence and competence assurance 
  • Consumer expectations of competence 
  • Competence assurance in the legal services sector 
  • Competence assurance in other sectors 

We want to hear from people and organisations both within and beyond the legal services sector with any relevant information on existing competence assurance practices and whether these practices protect the public and promote consumer interests. The insights will help guide our thinking on whether a different approach is needed.”

Further information is agvailable on the LSB site.

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Avoiding Even the Appearance of Impropriety: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession

Abstract

The “appearance of impropriety” standard should be categorically applied to regulate all members of the legal profession. The standard is intended to prevent the public’s loss of confidence in the legal system by disciplining members of the profession who appear to act improperly even if they do not violate specific ethics rules.

When applying the standard, courts ask whether the conduct in question creates an appearance of impropriety “in the mind of an ordinary knowledgeable citizen acquainted with the facts.” However, critics argue that this vague test allows judges to levy disciplinary sanctions based on their idiosyncratic, empirically unfounded views of how ordinary citizens will react. As such, some jurisdictions only apply the standard on a selective basis for judges and government lawyers based on the assumption that their appearances of impropriety are more damaging to the public’s confidence in the legal system.

Using a series of survey experiments, this article offers the first empirical evidence that most, if not all, common ethical dilemmas that do not implicate specific ethics rules consistently undermine the public’s confidence in the legal system. These results suggest that the standard should regulate all members of the legal profession, even when they do not violate specific ethics rules.

Citation
Kim, Matthew, Avoiding Even the Appearance of Impropriety: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession (May 9, 2020).

Read the article at the SSRN

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Law Society of Australia issues guidance on crowdfunding

The Law Society of Australia has released a guidance document over the professional and ethical risks for lawyers when navigating issues around crowdfunding. The guidance noted the rise in the use of crowdfunding for litigation, and the questions this raises over discrediting the profession if used for revenue raising. However, the guide also highlighted the added access to justice benefits of crowdfunding, allowing for those with limited financial resources to seek legal remedy.

The guidance aims to clarify the Society’s position and inform legal professionals of the appropriate steps they can take in order to effectively manage risk.

The full guidance is available here.

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