The State Bar of California is seeking public comment on proposals for regulatory reform put forward by the Task Force on Access Through Innovation of Legal Services. The task force was set up to improve access to justice through regulatory reform, following a report in 2018 that suggested that regulation was limiting innovations which could improve the public availability of legal services (report available here). The task-force has unveiled sixteen concepts for regulatory reform, including allowing non-lawyers to hold financial interests in a legal practice, and permitting fee-sharing between lawyers and non-lawyers. The Bar has now opened the options up to comment and they would appreciate the views of foreign regulators on their proposals.
The consultation closes on the 23rd September 2019. Full details of the consultation are available here.
A new set of rules have been released by the Legal Services Board (LSB), which aim to clarify the separation between representative bodies and their regulators. The internal governance rules (IGRs) have been published following a series of public consultations that first began in November 2017. The rules which were released by the oversight regulator provide and define the relationship between the approved regulator and the regulatory body can be viewed here. Legal regulators now have one year to implement changes to bring themselves in line with the new rules.
The California State Bar has been investigating the potential division of regulation and representation functions over the past five years. The Governance in the Public Interest Task Force concluded in 2017, launching a five-year strategic plan to “successfully transition to the ‘new State Bar’ — an agency focused exclusively on public protection through regulating the legal profession and promoting access to justice”.
Under the new system, the California State Bar will be a purely regulatory body. All representative functions will be transferred from the Bar to the California Lawyers Association, a new professional entity.
Proponents and critics of the new system alike question how this new transition will impact the already uncertain financial footing of the Bar. However, the new strategy will strive to “Improve the fiscal and operational management of the State Bar, emphasizing integrity, transparency, accountability, and excellence.”
England and Australia have abandoned self-regulation of the legal profession yet Canadian law societies continue to function on this basis. This article argues that the self-regulatory model on which the Law Society of Ontario (the “LSO”) operates represents an inadequate form of governance in terms of the accountability it yields. When compared to other organizations, including law societies in other common law jurisdictions as well as corporations, the weaknesses in the LSO’s governance model are conspicuous. This article advocates replacing self-regulation in Ontario’s legal profession with a co-regulatory regime. In the absence of such an extensive reform, this article puts forward recommendations for changes to the current bencher model of governance on which the LSO is based including the implementation of bencher expertise requirements and a duty of loyalty and a duty of care to the public.
Paper Available Here
Anita Anand, University of Toronto – Faculty of Law