LSB plans to review regulatory structure

A paper by Steve Brooker, head of policy development and research at the Legal Services Board, released on the 4th of June, has suggested that the LSB should review the regulatory structure, including the reserved legal activities within its current powers. The report comes in the wake of indications from the UK’s Ministry of Justice suggesting that legislative reform of legal services is currently not on the table. The report, therefore, suggested to the LSB that work should be done to investigate the current efficacy of the reserved legal activities, and how they could be changed within the boundaries of the current act. The report stresses that currently the reserved activities are based on historical need, and do not accurately reflect modern legal practice, leaving many providers unregulated, often wishing to be formally regulated, but unable to as they do not fall within the act.

Read the full LSB paper (PDF).

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Mayson Report: Final report published

The highly anticipated denouement of the Independent Review of Legal Services, which was first launched in October 2018, was published on the 11th June. The 340-page report which has been informed by a number of working papers, as well as an interim report, which has been fed into by a variety of actors in the legal sector is entitled Reforming legal services: Regulation beyond the echo chambers.

Professor Mayson has suggested in the report that all providers of legal services, should be registered and regulated by a single regulator, whether they are legally qualified or not. He suggested that regulation should move from the regulation of lawyers to the regulation of legal services, with different levels of regulation being applied depending on the public risk inherent in the work. By extension, this would mean that traditional legal qualifications would no longer be the sole entry point into the profession.

The report has been submitted to the Lord Chancellor, however, the Ministry of Justice in the UK has suggested that they currently do not plan to review the Legal Services Act 2007. Professor Mayson has therefore suggested shorter-term measures that can be introduced, as he feels that action must come sooner rather than later.

Professor Mayson suggested that especially as demand has moved online, the public are increasingly unaware of their rights in relation to regulated professionals, whilst lawyers are operating under a system where only a small percentage of their work is covered under the regulatory regimes they are supposed to work under. “The conclusion of this review is that the regulatory framework should better reflect the legitimate needs and expectations of the more than 90% of the population for whom it is not currently designed,” he wrote. The new framework would also allow for new provides such as lawtech providers to act within a regulated sector. 

Professor Mayson also described the current arrangement of 10 front-line regulators plus an oversight regulator as “cumbersome”, and recommended replacing it with a single, independent regulator – the Legal Services Regulation Authority (LSRA). “The requirement for flexibility, consistency, coherence and coordination across regulation within the legal services sector necessarily leads to a single regulator,” the report said.

Download a full copy of the report (PDF).

The response from regulators has been mixed with CILEx (read the CILEx response) and the Association of Costs Lawyers (read the Association of Costs Lawyers response) backing professor Mayson’s report, and the LSB (read the LSB response) saying that they will carefully consider his recommendations in relation to their ongoing work in reforming legal regulation. Whilst the Law Society (read the Law Society response) has suggested that given the ongoing COVID-19 crisis, now is not the time to discuss reforms.

Also see the article at Legal Futures for a further breakdown of the regulatory responses.

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Two COVID-19 Lessons that Were Long Overdue to Kenya’s Justice Sector

Abstract

The two decisions made by policymakers in Kenya’s because of COVID-19 were timely but were bound to happen. they are direct economic benefits for reducing the prison population and use of technology in courts. If the Prison population is reduced at least by 10%, the prison population will reduce by 22,372 prisoners. Using the GDP Per Capita as of 2018, we estimate that income gained would be equivalent to Ksh 4.3 billion whereas a 30% prison population reduction would be 67,115 prisoners and equivalent to Ksh 12.9 billion. The mechanism of technology must allow for more accountability.

Citation
Kemboi, Leo Kipkogei, Two COVID-19 Lessons that Were Long Overdue to Kenya’s Justice Sector (June 12, 2020).

Available from the SSRN site.

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Law Society of New South Wales welcomes electronic witnessing of legal documents

Richard Harvey, President of the Law Society of New South Wales, has welcomed changes implemented by the NSW government and Attorney General, allowing for electronic witnessing of legal documents.  The move has come about as a temporary reaction to the ongoing COVID-19 crisis, and has been added to the Electronic Transactions Regulation 2017.

Mr Harvey has said:

“As a result of COVID-19 restrictions, many solicitors contacted the Law Society expressing concern about the difficulties that the restrictions have created for the witnessing of legal documents.  The Law Society immediately raised these concerns with the NSW Government, and I would like to thank the Attorney General for moving so quickly to enact these provisions.  I am pleased that solicitors now have a practical alternative for the witnessing of documents in the coming weeks and months.”

For more information click here.

 

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California Bar moves towards regulatory sandbox

The Board of Trustees of the State Bar of California took a 9-2 decision on the 14th May 2020 to form a working group to look into forming a regulatory sandbox in which innovative legal service providers would be subject to fewer regulations. This could include limiting unauthorised practice of law rules, as well as removing limits on fee sharing and partnership between lawyers and non-lawyers.

The decision is a major step forward in a potential move towards innovative business structures in California, following a vote to delay the decision by the Board in March, with board members saying they needed more time to consider the proposals.

Following the board meeting, which was held over Zoom, Chairman Alan Steinbrecher (who as Chairman did not vote) said: “This is a significant step and I think it will lead to an exciting future,”.

For more information see:

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AI Regulation in Europe

Abstract

With the regulation of Artificial Intelligence (AI), the European Commission is addressing one of the central issues of our time. However, a number of core legal questions are still unresolved. Against this background, the article in a first step lays regulatory foundations by examining the possible scope of a future AI regulation, and by discussing legal strategies for implementing a risk-based approach.

In this respect, I suggest an adaptation of the Lamfalussy procedure, known from capital markets law, which would combine horizontal and vertical elements of regulation at several levels. This should include, at Level 1, principles for AI development and application, as well as sector-specific regulation, safe harbors and guidelines at Levels 2-4. In this way, legal flexibility for covering novel technological developments can be effectively combined with a sufficient amount of legal certainty for companies and AI developers.

In a second step, the article implements this framework by addressing key specific issues of AI regulation at the EU level, such as: documentation and access requirements; a regulatory framework for training data; a revision of product liability and safety law; strengthened enforcement; and a right to a data-free option.

Citation
Hacker, Philipp, AI Regulation in Europe (May 7, 2020). 

Download the full paper from the SSRN

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California Bar claims LegalMatch goes against attorney referral law

The State Bar of California attempted to sue LegalMatch on May the 4th 2020, for violating attorney referral laws. In November 2019 the California appeals court in Jackson v. LegalMatch found that LegalMatch, a service that matches clients with lawyers was a lawyer referral service (“LRS”) under California Business and Professions Code § 6155.

After the court’s decision, LegalMatch continued to operate, without formal registration, with the Bar claiming that LegalMatch ignored cease and desist orders, until the company had proper registration, and suggested that the company did not adequately make it clear that the service was not certified to operate in California on social media. This lead to the Bar attempting to file a temporary restraining order on the 4th May 2020.

However, during the course of the case, it became clear that LegalMatch had already submitted an application, which the Bar had not yet acted upon, leading Judge Ethan Schulman to deny the claim.

The case raises further questions about ongoing attorney referral rules both in the State and across the country, especially given the ongoing push for reform in California.

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Burnett: “No going back” to pre-COVID-19 courts

The Lord Chief Justice, Lord Burnett, has said in a House of Lords constitution committee that there would be no going back to pre-COVID-19 use of technology in courts. He also added that if the crisis goes on it may be worth considering lowering the number of jurors to 7.

In his answer to a question from Lord Pannick as to whether the way lawyers worked would fundamentally change, Lord Burnett said he suspected that it would. He also suggested that Professor Richard Susskind was right to suggest that the crisis represented a turning point in legal practice.

Susskind himself has recently worked with the Society for Computers and Law (SCL), the UK LawTech Delivery Panel, and Her Majesty’s Courts & Tribunals Service to launch Remote Courts Worldwide – which has suggested that over 40 countries worldwide are looking at the prospect of remote courts.

More details on Lord Burnetts comments at Legal Futures, and also see the New Zealand Law Society’s view on some of the first virtual trials coming out of the UK.

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Taming COVID-19 by Regulation: An Opportunity for Self-Reflection

Abstract

The COVID-19 outbreak offers a rich case study of government’s emergency response. As such, it is a test bed for risk research and regulatory theories in a world increasingly shaped by transboundary, uncertain manufactured and natural risks.

This introductory essay to the special issue of the European Journal of Risk Regulation attempts at providing an initial analysis of the surprisingly uncoordinated, at times unscientific, response to an essentially foreseeable event like a novel coronavirus (nCoV) in a geopolitically shattered world.

It warns that COVID-19 may go down in history as yet another major disaster occurrence with no learnings attached. Yet, as new transboundary disasters – from bioterrorism to climate change – loom on the horizon, neither the world nor risk regulation, as a discipline and practice of government, can hardly afford to let another crisis go wasted.

Citation
Alemanno, Alberto, Taming COVID-19 by Regulation: An Opportunity for Self-Reflection (April 28, 2020). European Journal of Risk Regulation, Issue 2/2020.

Read and download the full paper from the SSRN

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SRA to become distinct legal entity within the Law Society Group

The Law Society and the Solicitors Regulation Authority of England and Wales have agreed to set up the SRA as a distinct legal company within the Law Society Group.   The aim is to deliver clearer financial reporting, without changing the fundamental relationship.

In a joint statement Law Society President, Simon Davies and SRA Chair, Anna Bradley said:

“We have for some time been discussing our future relationship and have agreed that, given the need to comply by June with new internal governance regulations from the Legal Services Board, now is the time to establish the Solicitors Regulation Authority as a distinct legal entity within the Law Society Group. This will mean that both organisations can focus on our respective roles while working together wherever appropriate.

We consider that the new arrangement will not only be more effective but create more transparency for the profession and the public about our roles and responsibilities.”

See the full statement from the Law Society.

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