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. 

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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

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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

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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,
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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).
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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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