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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ABA releases ethical guidance for lawyers changing firms

On the 4th December 2019, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued guidance on the ethical responsibilities of lawyers who are changing firm.

Formal Opinion 489 recognises a lawyer’s right to move firms, noting that the ethics rules do not allow non-competition clauses in partnership, member, shareholder or employment agreements. The guidance suggests that for the benefit of clients, staffing and the continuation of counsel, advance notice periods should be given, allowing for an orderly transition and for clients to make clear and informed choices.

Read the full guidance on the ABA site (PDF).

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Ethics and in house lawyers

A survey of 400 in-house lawyers, carried out by law professors from Exeter University and University College London in collaboration with flexible legal services provider Lawyers on Demand, has revealed that a third of in-house lawyers are sometimes placed in difficult moral positions.  The research found that:

  •  32% were asked ‘to advise or assist on things that made them uncomfortable ethically’
  •  45% were asked to advise on proposed company action which was ethically debatable
  •  In-house lawyers involved in the survey were ‘hazy (sometimes very hazy)’ on the content of the SRA handbook and their professional obligations
  • Eight out of 10 agreed their legal department had been criticised for inhibiting or slowing commercial decisions.

Read more about the study or download the report here.

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ICLR 2019: Changing Nature of the Profession; Workshop C1: Equality and Diversity

The following content has been provided by the panel presenting on this topic during the afternoon on Day 2 of ICLR 2019.

Synopsis

The panel will focus on sexual harassment in the legal profession as a regulatory issue, and explore the regulatory issues that can arise in the use of non-disclosure agreements (NDAs) in sexual harassment claims.

A range of research, including most recently the work of the IBA, indicate that sexual harassment is a significant and wide-scale problem in the legal profession. This is despite the potential professional consequences and attendant civil or criminal liability. Lawyers drafting unfair and unenforceable NDAs in sexual harassment claims have also been subject to serious public and regulatory criticism.

Legal regulators have a clear remit to take action in respect of lawyers who engage in sexual harassment, or who engage in unethical practices in service of their clients. Both types of conduct undermine public confidence and trust in the integrity of the legal profession as a whole – at a time when the legitimacy of the justice system and the maintenance and protection of the rule of law are under increasing challenge.

Speakers

Moderator: Fiona McLeay, Victorian Legal Services Commissioner and CEO of the Victorian Legal Services Board

Panellist: Sara Carnegie, Director, Legal Projects at the International Bar Association

Panellist: Zelda Perkins, Campaigner and former Weinstein Company employee

What particularly do you hope to explore in this session?  Any specific questions you hope to answer?

The panel will discuss the International Bar Association’s recent research on sexual harassment in the legal profession, explore why sexual harassment by lawyers is a regulatory issue and explain what legal regulators can do to support reporting of such conduct. The panel will also address lawyers’ involvement in drafting non-disclosure agreements for sexual harassment claims, and legal developments in this space. Questions the panel hopes to answer are:

  • What have been the findings of recent research on sexual harassment in the legal profession? How has the profession responded to these findings?
  • Why is sexual harassment in the profession a regulatory issue?
  • What prevents people from speaking up about sexual harassment by (or towards) lawyers?
  • What can legal regulators do to support the reporting of sexual harassment by lawyers?
  • Are NDAs ever appropriate in sexual harassment cases?
  • What are the ethical considerations for lawyers in drafting such agreements?
  • Will the UK Government’s proposed legislation be sufficient to curb the misuse of NDAs to cover up sexual harassment? What has been the effect of similar legislation enacted by various State legislatures in the United States?
  • What should be the response of legal regulators to sexual harassment in the profession, including the drafting, use and misuse of NDAs by lawyers?

What do you hope to achieve with this session?

The intention of the session is to promote understanding of why sexual harassment in the legal profession is a serious regulatory issue, spark discussion about how legal regulators can adapt or refine existing complaints processes to facilitate reports of this conduct, and encourage debate about lawyers’ ethical obligations in drafting NDAs.

Any useful documents/background reading for context?

  1. International Bar Association – “Us Too? Bullying and Harassment in the Legal Profession”
  2. International Bar Association – “The dark side of NDAs”
  3. Victorian Legal Services, Board + Commission – “Sexual harassment in the Victorian Legal Profession”
  4. Department for Business, Energy & Industrial Strategy – Kelly Tolhurst MP, and The Rt Hon Penny Mordaunt MP – “Crackdown on Misuse of Non-Disclosure Agreements in the Workplace”
  5. Lexology – Seyfarth Shaw LLP – “#MeToo Inspires Legislative Changes Across the United States”

Anything you would like to ask the regulator community in advance of the session to inform the content/preparation?

  • Ask regulators to check how many complaints or reports of sexual harassment by lawyers they receive, on average.
  • Ask regulators to indicate whether they have a particular policy or approach to sexual harassment and/or the use of NDAs and if not, whether they intend to develop one or both of these.

 

See the full conference programme for details of all sessions.

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UK Competition and Markets Authority to research Scottish legal services market

The Competition and Markets Authority has issued the following press release regarding its impending research into certain aspects of the Scottish legal services market to support the Scottish Government’s response to the Roberton Review.


The following release was published 17 June 2019.

This work has been prompted by the Roberton Review, an Independent Review of Legal Services Regulation in Scotland, and will provide evidence to assist the Scottish Government in determining how to take forward the recommendations made by that report. Led by Esther Roberton, that Review made a number of recommendations, including that there should be a single independent body to regulate the legal profession, set standards and handle complaints.

Building on work already done as part of the Competition and Market Authority’s (CMA) market study into the supply of legal services in England and Wales, this work will examine whether there is evidence of a lack of competition among legal services providers in Scotland, as was the case in England and Wales.

The research will also focus on:

  • the benefits of independent regulation of legal services in Scotland and whether the current institutional arrangement – where the bodies regulating the professions are also those representing and lobbying for them – dampens competition
  • the impact of the current legal services regulatory framework in Scotland on competition, particularly on innovation and the entry of new business models to the market

It is the CMA’s first Scotland-specific project since the expansion of its Edinburgh office last year to help the organisation better identify and resolve issues that harm Scottish consumers.

The CMA has today also published a document setting out its views on the Roberton Review’s recommendations. The CMA welcomes the review, which has sparked a debate about how to ensure the regulation of Scottish legal service providers delivers value for money and choice for consumers, as well as benefitting businesses and the economy.

The CMA intends to publish its findings in early 2020. More information can be found through the CMA here.

Notes to editors

  1. The Independent Review of the Regulation of Legal Services, led by Esther Roberton, was invited by the Scottish Government to review the regulation of legal services in Scotland. It reported in October 2018
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