Law Society of British Columbia to Widen Access to Legal Services

On September the 10th the Law Society of British Columbia elected to make changes suggested by a task force on modernisation established this January.

The task force cited ongoing changes in the legal market, which have been accelerated by the ongoing COVID-19 pandemic, as well as the pace of change in other jurisdictions, as to why change was needed.

Recommendations include:

  • evaluate how existing and emerging technologies can better support legal services and address regulatory impediments that exist in permitting their use
  • move to amend regulatory structures to allow for innovation in legal service delivery and alternative business structures while protecting the public
  • re-evaluate current regulations and restrictions on law firm ownership and investment, as well as multi-disciplinary practice and partnership structures to ensure they are not inhibiting innovation
  • advance its initiative on the regulation of licensed paralegals to improve access to legal services
  • regularly reach out to and develop resources to support in-house counsel and government lawyers
  • continue work on Indigenous legal services by understanding where more support is needed and listen to and work with Indigenous peoples to address that need
  • re-consider the accreditation process for lawyers in British Columbia, with special consideration given to how to incorporate more skills-based training into that process

The task force was set up with the following mandate: “Recognizing that significant change in the legal profession and the delivery of legal services is expected over the next five to 10 years, the Futures Task Force will identify the anticipated changes, consider and evaluate the factors and forces driving those changes, assess the impact on the delivery of legal services to the public, by the profession and on the future regulation of the legal profession in British Columbia, and make recommendations to the Benchers on the implications of the anticipated changes and how the Law Society and the profession might respond to the anticipated changes.”

And began the recommendations by saying: “Change is constant in all aspects of our lives, and this is true in the practice of law as well. Client expectations, competition among lawyers and with other professionals, technology, generational expectations, and societal norms all affect what lawyers do and how they carry out their practice in important ways. Society’s expectations of what lawyers do and how they should do it also change. How lawyers keep up with these changes is very important for the availability of efficient and affordable legal services and for the confidence that the public has in the legal profession as a whole, and equally important for the sustainability of their practices and their personal well-being. A legal profession that is incapable of achieving outcomes that resonate with what society expects is one in which the public will eventually lose confidence. ”

Read the full recommendations here (PDF). 

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Law Society of Saskatchewan Makes COVID-19 Rule Changes Permanent

The Law Society of Saskatechewan has announced that the Government of Saskatchewan has repealed emergency regulations surrounding remote execution and witnessing of documents electronically and replaced them with permanent rule changes, which will extend beyond the period of public emergency. The rule changes come about in the light of the increased efficiency and lower cost created by emergency regulations and the use of video witnessing, with the society saying that they are “a significant development in terms of enhancing access to justice in Saskatchewan and will serve to greatly increase the efficiency of many legal processes for lawyers and clients alike.”

The rule changes relate to the remote witnessing of Land Titles, Powers of Attorney and Wills, as well as various other documents.

Read the Law Soceity’s description of the changes, and view the new regulations.

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Arizona to Allow Non-Lawyer Ownership

The Arizona Supreme Court has approved rule changes allowing for non-lawyer ownership of law firms in the state. The rule change comes in the wake of the two-year sandbox announced in Utah, however, the Arizona courts went one step further, opting to make the changes permanent.

The recommendations for the rule change were first proposed by the court’s Task Force on the Delivery of Legal Services, have focused around improving public access to affordable legal services and promoting legal innovation. The changes in state’s rules are set to become effective as of January 1st 2021. The changes include the removal of ER 5.4 the rule barring nonlawyers from fee sharing and barring nonlawyers from having an economic interest in a law firm. As well as this the changes also allowed for the licensing of legal paraprofessionals, as well as changes to lawyer advertising rules.

Arizona Supreme Court Chief Justice Robert Brutinel said of the development, “The Court’s goal is to improve access to justice and to encourage innovation in the delivery of legal services. The work of the task force adopted by the Court will make it possible for more people to access affordable legal services and for more individuals and families to get legal advice and help. These new rules will promote business innovation in providing legal services at affordable prices. I thank and commend the Task Force and its chair, Vice Chief Justice Timmer for their groundbreaking work.

Read the full report from the Arizona Supreme Court. 

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Accountancy Body to Hand Designated Legal Regulatory Powers to CILEx

The Association of Chartered Accountants (ACCA) in England and Wales is to withdraw from legal services regulation in a UK first. The legal activities that are exercised by its members will now be regulated in a new partnership by CILEx Regulation (CRL), the regulatory body for Chartered Legal Executives. Under the Legal Services Act 2007 (LSA), probate was listed as a reserved legal activity, meaning that regulators who administered the right to provide probate services could be approved as legal service regulators, by the overarching regulator, the Legal Service Board.

The ACCA was approved to regulate probate in 2009, but only began actively regulating in 2018. Under the LSA, there has always been the option for any of the regulatory bodies to regulate multiple different professions, however, the transfer to regulation by CRL, which will take place over the coming months, marks the first time this will have happened in practice. This transfer will allow the 52 ACCA accredited firms to continue to practice, however, it will not affect the 300 firms regulated by the ICAEW.

The move came in the light of new governance rules that have been put in place by the LSB, as well as the fact that the ACCA was not licensed to regulate alternative business structures, and obtaining the licence would ultimately prove too costly. They, therefore, stated that “Against that backdrop and that the provision of legal services sits as an adjunct to general practice, we believe partnering with another legal services regulator provides a pragmatic and cost-effective way to support practitioners to diversify their service offerings”.

Carilyn Burman, chief executive of CILEx Regulation, said she was confident that it could offer “a number of benefits, including an opportunity for ACCA probate practitioners to join forces with other legal and non-legal professionals as ABSs, which will further encourage competition and diversity within the legal services market”.

Dr Helen Phillips, chair of the LSB, has said: “Enhancing regulatory independence has been a long-term strategic priority for the LSB and I am pleased the regulators are now able to confirm they have the appropriate separations in place between regulatory and representative functions. This is a significant achievement and means consumers can have increased certainty that decisions made by regulators are independent.”

Read more about the decision or see more about the regulatory structure in England and Wales

 

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Utah to be First US State to Trial Non-Lawyer Ownership

Utah has become the first state in the US to allow non-lawyer ownership of legal services providers. This month the State Supreme Court unanimously voted in favour of approving a 2-year sandbox programme which would licence new forms of legal services ownership.

The move has come about in the face of continued concerns over access to justice, particularly in the face of the ongoing COVID-19 pandemic. The courts have cited the reasoning that regulation should focus primarily on serving the consumer, and acting in their best interests, with Utah Supreme Court Justice Deno Himonas saying “changes will enable individuals and entities to explore creative ways to safely allow lawyers and non-lawyers to practise law and to reduce constraints on how lawyers market and promote services. New forms of providers could include partnerships, corporations and companies and non-profit organisations partnering with other entities to offer legal services.”

Whilst the Utah profession is comparatively small, with 26 lawyers per 10,000 residents compared with 92 in New York and 43 in California, the result of the sandbox will be closely watched by other state bars, particularly in the light of similar moves being discussed in California, and calls by the ABA for other states to follow suit.

Read more about the decision or view the standing order.

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Philippines Authorises Video Notarization in Quarantined Areas

The Philippines Supreme Court has released updated rules that allow video conferencing software to be used for the notarization of documents in areas under quarantine due to public health concerns.  The authorisation is contained in A.M. No. 20-07-04-SC, otherwise known as the 2020 Interim Rules on Remote Notarization of Paper Documents.

The Rules shall be limited to the notarization of paper documents and instruments with handwritten signatures or marks through the use of videoconferencing facilities. However, they shall not apply to the execution of notarial wills.

Read more about the changes or view the updated rules.

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The future of legal services in England and Wales – reviewing regulation, consumer protection and responding to innovation

Tuesday, 15th September 2020
Online

Leader of the review Professor Stephen Mayson, Centre for Ethics & Law, UCL is a keynote speaker at this conference.

The report makes recommendations for the future of legal services, including:

  • a single independent regulator for the legal sector – the Legal Services Regulation Authority – to replace the current arrangement of ten front-line regulators with additional oversight by the Legal Services Board regulator
  • replacing the current reserved legal activities, by categorising all legal services and regulating them to different degrees according to the risk to public interest of the work
  • all legal services providers being registered and regulated – thereby moving away from regulating lawyers by their professional title and, instead, towards the work they undertake
  • measures for ensuring those who are unable to afford a regulated lawyer are not left without access to legal advice
  • the provision of a single point of entry for all consumer complaints

Also making keynote contributions are: Clare Hayes, Deputy Director of UK Legal Services & Innovation, Ministry of Justice; Peter Rowlinson, Head of UK Legal Services Policy, Ministry of Justice; and Rachel Wood, Executive Director of Regulation, Law Society of Scotland.

Find out more and register

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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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