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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. 

Proactive management-based regulation: update from the US

Technology was very much a topic of conversation at the 2017 ICLR Meeting in Singapore.    Regulators are using technology to help them better focus their work and resources.  In the context of access to legal services and access to justice, technology offers consumers ways to connect with lawyers and to get help.  And, technology helps lawyers market themselves and their services.

With constant changes in technology, how lawyers advertise and market their services, domestically and internationally, remains a topic of high interest.  Some countries prohibit lawyer advertising. Others permit it, but regulate it to varying degrees.  In the U.S., while generally following the ABA Model Rules of Professional Conduct, there is significant jurisdictional variation in how lawyer advertising and marketing is regulated.  The ABA Standing Committee on Ethics and Professional Responsibility has undertaken a comprehensive study of the ABA Model Rules on this subject in the interest of furthering uniformity, but also because its members concluded that the current advertising rules are outdated and may hinder the ability of lawyers to adapt to changing technology. In addition, the Committee recognizes that consumers frequently use technology to learn about and access legal services.

The Committee intends to present a proposal to amend these Model Rules to the ABA House of Delegates for consideration in August 2018.  The Committee’s Working Draft of the proposed amendments to the ABA Model Rules of Professional Conduct and Memorandum explaining those changes is out for review and comment. All written comments on the Working Draft should be filed by March 1, 2018.  Comments may be emailed to modelruleamend@americanbar.org.  All comments will be posted on the ABA website.

The ABA Center for Professional Responsibility continues its work to educate the profession about Proactive Management-Based Regulation, and to provide resources and tools to regulators and others on this subject.  The Center has launched a new PMBR web resource, which includes US and International resources.  Colorado has launched its voluntary self-assessment program, and Illinois is in the process of implementing its new PMBR self-assessment and education rules for lawyers in the state who do not carry malpractice insurance.   The Center will continue its work in this area and welcomes from ICLR members information to add to its PMBR web resource.

Thank you to Ellyn Rosen, Regulation and Global Initiatives Counsel, ABA Center for Professional Responsibility for providing this update.

Legal Services Regulation at the Nova Scotia Barristers’ Society: a progress update

The journey to Legal Services Regulation (LSR) has taken a major step with the November 17, 2017 approval by Council of several regulatory amendments to advance the Society’s initiatives. The result is a model of regulating legal services that is risk focused, proactive, principled and proportionate. Key components of the regime and the impacts on law firms are outlined on the NSBS website.

The NSBS continues to work with government so that amendments to the Legal Profession Act will be introduced in the spring of 2018. With the proposed provisions, the Society will then have the full range of authority required to fully implement the policies previously approved by Council to enable better promotion of the public interest and the expansion of innovative legal services.

An essential component of the Society’s transformed Legal Services Regulation framework is an enhanced focus on risk. By risk, the NSBS means ensuring that:

  • lawyers and firms are able to achieve the ten elements of a management system for ethical legal practice;
  • lawyers engage in conduct that reduces risks to the public; and
  • the Society identifies and responds to these risks in a proactive, principled and proportionate way, and achieves their Regulatory Objectives and Outcomes.

Developing and embedding a risk focus in the Society’s regulatory work is unfolding on a variety of levels, requiring both internal and external culture changes, as well as changing the conversation with lawyers to offer support and to work collaboratively to reduce risk.

Read more about the NSBS approach to risk and the steps that are underway to embed a risk-focused approach in their regulatory system.

Risk Regulation for the Legal Profession

Winds of change are blowing over the legal profession. Yet, compared to other professions and industries, legal services regulation remains very much a laggard. For the most part, legal services regulation remains rigid, reactive and complaint-based. These are not characteristics that are considered regulatory best practices. Recognizing this, a number of law societies are contemplating more proactive, compliance-based regulation. Indeed, some Canadian legal regulators have already turned those thoughts into action, most notably the Nova Scotia Barristers’ Society and the Law Society of Alberta.  The authors of this paper assert that Canadian legal regulators should continue down this path and move to risk regulation, a more focused and efficient system of regulation.

This paper has four parts:

  • Part I – an introduction and background to the issue.
  • Part II – sets out the normative case for risk regulation.
  • Part III – addresses the third aspect of risk regulation, using practical examples to illustrate how risk regulation is actually done. In doing so, the authors draw on examples from the regulation of lawyers in other jurisdictions, specifically England and Wales and Australia.
  • Part IV – the paper ends with a brief conclusion which discusses the significant cultural and operational changes required to move to a risk regulation regime.

Link to full report

Citation: Dodek, Adam M. and Alderson, Emily, Risk Regulation for the Legal Profession (August 25, 2017). Alberta Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3026869

ICLR 2017 – Panel: “Risk Based Approach to Regulation”

A synopsis of panel session 8, which takes place on 6 October at ICLR Singapore, kindly provided by the session’s  moderator, Victoria Rees.  Conference materials will be made available to ICLR.net members after the conference.

Moderator: Victoria Rees, Director of Professional Responsibility, Nova Scotia Barristers’ Society, Canada

Panelists:

  • Scott MacLean, Acting Executive Director, Investigations, Office of Health Ombudsmen, Queensland, Australia
  • Paul Philip, CEO, Solicitors’ Regulatory Authority, United Kingdom
  • Kolantha Sarogenei, CEO, Lockton Companies (Singapore) Pte Ltd., Singapore

With increasing demands and expectations of regulators in an increasingly complex legal services environment, risks to the public, to the profession and to regulators are greater than ever:  For example, we’ve seen the impact of technology on the provision of and access to legal services; the rise in cybercrime; growth in global legal service providers and multi-disciplinary practices; economic downturns; changes in lawyer demographics including an aging population and rural depopulation; etc.  A competent and relevant regulator must stay abreast and, where possible, ahead of these trends in order to prepare the legal profession for changes impacting it, clients and the public.

Those who regulate lawyers and the legal profession have a shared mandate to protect the public and users of the legal services we regulate. It is essential for effective public protection to understand and manage the risks to achieving that mandate, otherwise we are ourselves at risk of losing our respective roles in the regulation of lawyers. Further, by operating in a risk-focused manner, we are better able to target our limited financial and human resources where they will best protect the public, and enhance the trusted reputation of the regulator.

This session is designed to engage the audience in an interactive discussion facilitated by panelists with experience in various forms of risk assessment and management, and risk-based regulation of lawyers. Through our experiential-based stories, we will highlight the benefits, strengths, opportunities and challenges with this approach to legal services regulation, which can take many different forms.

Through this session, participants will learn about the Nova Scotia experience launching its new Triple P (proactive, principled and proportionate) and risk-focused approach to legal services regulation. You will hear about the successes and challenges faced by the Solicitors’ Regulatory Authority as they have led the way in outcomes and risk-focused regulation; you will learn more about the current status of the Appropriate Management Systems approach and risk-based regulation in Australia, within both the legal and medical professional context; and you will hear stories and lessons learned from the perspective of the professional liability insurer for lawyers in Singapore.

To provide more detailed background and resources from these perspectives in advance, each panelist will prepare a paper citing practical and relevant articles, resources and tools. Important take-aways from this session will include: understanding how to identify risks which are impacting and may impact the provision of legal services, and regulation of lawyers/firms/ABS/MDP; how to manage and respond to those risks in a proportionate manner; and how to develop a risk-focused approach to regulation, regardless of the size or complexity of your jurisdiction’s current regulatory framework.

A review of the ABA’s National Conference on Professional Responsibility

From May 31 through June 2, 2017, the American Bar Association Center for Professional Responsibility held its 43rd ABA National Conference on Professional Responsibility.  The National Conference has long been the premier event of its kind in the U.S., bringing together legal scholars, jurists, regulators, and specialists in the professional responsibility field for two days of intensive programming addressing a wide range of issues.  National Conference topics cover recent domestic and international trends and developments in legal ethics, professional discipline, bar admissions, professionalism, and practice issues. This year, a session about improving the health and wellness of the profession will be echoed with a regulator focus by a panel on this subject at the upcoming International Conference of Legal Regulators (ICLR) in Singapore (Day 1, Session 4). Other sessions focused on data security, multijurisdictional practice issues, and unique ethics issues faced by government lawyers.

Held in conjunction with the National Conference were the annual National Forum on Client Protection, Specialization Roundtable, and the 3rd Annual Workshop on Proactive Management-Based Regulation (PMBR).  This successful Workshop designed for regulators opened with remarks from the Chief Justice of the Illinois Supreme Court, Lloyd A. Karmeier.  Chief Justice Karmeir spoke about his Court’s adoption of new PMBR self-assessment and education rules for lawyers in the state who do not carry malpractice insurance.  This regulatory mechanism is the first of its kind in the U.S., with Colorado having adopted Regulatory Objectives earlier and being in the process of implementing a voluntary self-assessment program.  Facilitated by these Center for Professional Responsibility Workshops, a number of other U.S. jurisdictions are now studying PMBR.  There will be a session at the 2017 ICLR regarding success stories in Risk-Based Regulation, moderated by Victoria Rees – Director of Professional Responsibility, Nova Scotia Barristers’ Society.

You may review detailed summaries of a number of National Conference and Client Protection Forum panels in this ABA/BNA Lawyers’ Manual on Professional Responsibility summary.

 

Ellyn S. Rosen

Illinois becomes first US State to adopt proactive management based regulation

The Illinois Supreme Court has announced today the adoption of certain new rules governing the legal profession in Illinois. The changes are intended to help minimize many of the risks that lawyers face in the private practice of law. In doing so, Illinois becomes the first state in the nation to adopt Proactive Management Based Regulation (PMBR). The rule changes were based upon a multi-year study of PMBR initiatives in other countries and in the United States, and after consultation with key Illinois stakeholders, including many bar association and lawyer groups.

Read full press release

The new programme is currently limited to private practice lawyers who don’t carry malpractice insurance.  Along with other licensing requirements, affected lawyers will have to complete an online self-assessment and education programme covering a range of professional responsibility areas in which bad habits routinely blossom into ethics complaints. The results of the biennial reviews will then be shared with the lawyer, along with resources intended to help them address problems spotted in the review.