Canada launches national wellbeing study of legal professionals

A partnership of the different Canadian law societies, the Federation of Law Societies of Canada, the Canadian Bar Association and the Université de Sherbrooke is coming together for a first-of-its-kind national study on the well-being of legal professionals.

The study is based on the fact that legal practitioners are amongst the grouping of professionals most at risk of experiencing mental wellness issues such as stress, anxiety, and depression. The partnership aims to better understand why this is, in order to better support legal professionals, providing them with the necessary resources to promote a healthy and sustainable legal practice.

A range of legal practitioners are being contacted in order to complete the study. For example, In Ontario, the following legal professionals are being asked to participate in an anonymous and confidential study questionnaire:

  • All lawyers and paralegals, including those who are presently unemployed, on leave and who have retired or stopped working in law in the past year;
  • Articling candidates who are working in any capacity, including private practice, public sector, university or college, etc.;
  • Experiential learning candidates who completed the Law Practice Program at Ryerson, the Programme de pratique du droit at the University of Ottawa or the Integrated Practice Curriculum program at Lakehead University in 2021.

Read more about the study here,  Or watch a video of lead researcher Dr. Nathalie Cadieux introducing the study here

 

Legal Services Board of England and Wales releases diversity dashboard for England and Wales profession

The Legal Services Board of England and Wales (LSB), which acts as the oversight regulator for professional frontline regulators in England and Wales has released a dashboard of diversity statistics collected from each of the frontline regulators it oversees, alongside the publication of an independent report into regulator diversity. The report was produced by the Bridge Group, an independent consultancy focused on diversity and inclusion, and is focused on evaluating the success of regulatory interventions and the success of evaluative indicators used by regulators following diversity and inclusion initiatives.

Findings from the report include:

  • Legal regulators should use the data they collect about the professionals they regulate to inform and evaluate their diversity and inclusion initiatives.
  • Similar challenges face regulators in other sectors, indicating that the legal services sector is no different to other professional sectors in the slow pace of change in improving diversity.
  • To improve the limited evaluation of initiatives the report recommends the use of the theory of change model, or similar, for a more systematic approach.

Based on the findings of the report the LSB has urged legal regulators to do more to understand what is and is not working in terms of diversity initiatives, in order to encourage greater diversity and inclusion in the sector, as well as focusing on what is making a meaningful difference for professionals and consumers.

The diversity dashboard has been produced to facilitate better information sharing and improve transparency between the regulators. It brings together the latest diversity data collected by the regulators on the people they regulate.  It is now easier to compare different parts of the regulated sector. Data includes the proportion of; women employed, age, ethnicity, disability, sexual orientation and attendance at a fee-paying school. The dashboard will be expanded in the coming months to include information on how the diversity of the professions differ at entry and at senior levels over time.

Dr Helen Phillips, Chair of the Legal Services Board, has said: “The LSB and the legal regulators share the statutory objective of encouraging an independent, strong, diverse and effective legal services sector. However, despite the positive intentions over the last few years, there has been little progress on improving diversity of our sector. On the whole, regulators have been successful at collecting diversity data, however, data is not an end in itself. Understanding what initiatives have the greatest impact is essential if we are to see a radical change in the diversity of the legal profession. Evaluation must be a core part of deciding which regulatory interventions to make. The Independent Bridge Group report that we commissioned highlights that there has been little collaboration on diversity and inclusion. We want to help change that and a key part of our approach will be to work with regulators to encourage information sharing and cohesion to address these sector-wide issues. It is clear that the challenges we face are so complex and far-reaching that tackling them requires a concerted effort. By collaborating with others across the sector, we will support a profession that reflects the society it serves and that meets consumers’ differing needs.”

Read the full report here, or view the diversity dashboard here.

ABA releases annual profile of the legal profession

The American Bar Association has published its annual profile of the legal profession in the US. The report uses the data gathered over the course of the year to analyse changes and developments in the profession across the country.

Subjects covered include women and minorities in the profession, legal technology, pro bono, pay, legal education, lawyer wellbeing and lawyer discipline.

The link to download the full report is available here.

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Solicitors Regulation Authority publishes Residential Conveyancing thematic review

A review about the service provided by solicitors to the public

Executive summary

Buying and selling a property is often the most expensive and important financial commitment a person makes in their life. Having access to reliable and good quality legal support really matters. It not only reduces stress and uncertainty, but potentially directly impacts on whether a purchase is completed, and what the long-term financial implications may be for all involved.

While most property transactions are completed relatively seamlessly, figures from the Legal Ombudsman (LeO) show that residential conveyancing accounted for nearly a quarter of all complaints it handled over the past three years.

Our own research of consumers, conducted in 2018, also identified that up to a quarter of recent home buyers were dissatisfied with some element of the service they received from their solicitor. One common area of concern was an apparent failure to fully explain the detail and implications of contractual commitments.

What we did

We carried out this thematic review to better understand how firms are delivering residential conveyancing services, and whether they are fulfilling their obligations to their clients.

We visited a sample of 40 law firms offering residential conveyancing services and conducted a detailed review of 80 case files.

What we found

We found that most firms were fulfilling their obligations. In particular, we found that:

  • all firms proactively communicated with clients at all key stages of a purchase, with the majority meeting them face-to-face at least once
  • all firms provided clients with clear information on their complaints procedures
  • firms are increasingly embracing technology, especially regarding how they communicate with clients.

However, we did identify areas for improvement. The two most significant and widespread were:

  • inaccurate initial cost estimates – 34% of firms failed to include all the services/fees a matter could reasonably expect to attract in their initial quotes
  • not being open about the real cost of third-party disbursement and their firm’s mark-up on these – specifically telegraphic transfers. In 37% of cases firms failed to do this, with some charging up to 10 times the actual bank charge for processing the transfer.

Other areas where we identified potential concerns included:

  • not processing paperwork efficiently – especially in relation to requisitions raised by HM Land Registry
  • not explaining the difference between freehold and leasehold ownership
  • failing to double-check that a client understands the long-term implications of contractual obligations and fees.

Conclusions

This review clearly found that in the majority of cases, conveyancing firms actively engage with their clients and fulfil their obligations to them. Property deals progress in a timely and efficient manner and clients feel informed and supported throughout.

But sadly, this is not always the case.

Whether its providing unrealistic or incomplete quotes, or failing to make sure contractual information has been fully understood, solicitors are potentially leaving their clients exposed to significant risk or potential financial hardship.

Next steps

This thematic review took place during 2018. In December the same year, we introduced new transparency rules which require firms offering conveyancing services to publish detailed price and services information, and their complaints procedures online.

The requirement to provide clear pricing information was not new. However, these rules, and associated guidance, now provide the profession with absolute clarity on our expectations for how they should be publishing price information.

These requirements include:

  • outlining all known and potential costs a transaction may attract from the outset
  • specifying all charges being added to the actual cost of any third-party disbursements.

As part of our ongoing work, we will continue to review compliance with these rules and will consider further action where necessary to make sure they are being followed.

On the specific subject of making sure solicitors explain contractual details to clients, especially in relation to leaseholds, we urge all firms to make sure that their clients understand their obligations. If we find evidence that people were not made aware of onerous clauses in their leasehold contracts, such as the regular doubling of ground rents, we will take robust action.

Following this review, we referred six firms onto our internal disciplinary processes. Five of these referrals included concerns about failing to declare that the stated telegraphic transfers fees included an additional charge/mark-up.

Read the full report here

Regulating Law Firms from the Inside: The Role of Compliance Officers for Legal Practice in England and Wales

Following the Legal Services Act 2007, which permitted the delivery of legal services through Alternative Business Structures (ABS), the Solicitors Regulation Authority required all regulated legal service firms to appoint Compliance Officers for Legal Practice (COLPs). COLPs are charged with taking reasonable steps to ensure that firms comply with their obligations, which entails interpreting what outcomes‐focused regulation (OFR) requires of the firm. Yet despite their importance, little is known about how compliance roles operate within legal service firms. We addressed this gap through a series of qualitative interviews that explored COLPs’ views of their roles, their attitudes to regulation, in particular to OFR, and to achieving compliance. We found that COLPs are a key regulatory mechanism in the context of firm‐based regulation and OFR and have a critical role to play in protecting and promoting professional values in both ABS and non‐ABS entities.

Full Paper Available Here

Sundeep Aulakh, University of Leeds – Work and Employment Relations & Joan Loughrey, University of Leeds

Regulation by Blockchain: The Emerging Battle for Supremacy between the Code of Law and Code as Law

Many advocates of distributed ledger technologies (including blockchain) claim that these technologies provide the foundations for an organisational form that will enable individuals to transact with each other free from the travails of conventional law, thus offering the promise of grassroots democratic governance without the need for third party intermediaries. But does the assumption that blockchain systems will operate beyond the reach of conventional law withstand critical scrutiny? This is the question which this paper investigates, by examining the intersection and interactions between conventional law promulgated and enforced by national legal systems (ie the ‘code of law’) and the internal rules of blockchain systems which take the form of executable software code and cryptographic algorithms via a distributed computing network (‘code as law’). It identifies three ways in which the code of law may interact with code as law, based primarily on the intended motives and purposes of those engaged in activities in developing, maintaining or undertaking transactions upon the network, referring to the use of blockchain: (a) with the express intention of evading the substantive limits of the law (‘hostile evasion’); (b) to complement and/or supplement conventional law with the aim of streamlining or enhancing compliance with agreed standards (‘efficient alignment’); and (c) to co-ordinate the actions of multiple participants via blockchain to avoid the procedural inefficiencies and complexities associated with the legal process, including the transaction, monitoring and agency costs associated with conventional law (‘alleviating transactional friction’). These different classes of case are likely to generate different dynamic interactions between the blockchain code and conventional legal systems, which I describe respectively as ‘cat and mouse’, the ‘joys of (patriarchial) marriage’ and ‘uneasy coexistence and mutual suspicion’ respectively.

I argue that the emerging response of conventional law in the first two kinds of case can be readily anticipated and understood. While the first class of case threatens to undermine the rule of law and which national legal systems can be expected to take positive action to safeguard, the second class of case does precisely the opposite: reinforcing the primacy and sovereignty of national law, and hence blockchain applications falling within this class are likely to be regarded as a welcome development by conventional legal systems. But it is the law’s response to the third category of applications (‘alleviating transactional friction’) that is the most difficult to predict, due to the normative ambiguity of these applications. Whether the conventional law ought to intervene to oversee these systems raises fundamental tensions between the sovereignty of law in modern legal systems, including the universal coverage of the rule of law and its guarantee of security (which includes, but extends beyond, providing transactional security), on the one hand, and respect for individual autonomy and freedom of association on the other. I argue that, to the extent that the exercise of agency and freedom of association by a group of individuals results in adverse consequences for third parties and the broader public, state intervention via the code of law is normatively justified. Accordingly, the critical challenge is to identify the conditions and circumstances in which this threshold is reached in concrete contexts in order to justify the assertion of supremacy by conventional law over activities taking place on and arising out of blockchain systems.

Full Report Available Here

Karen Yeung, Interdisciplinary Professorial Fellow in Law, Ethics & Informatics, University of Birmingham

Online and Automated Dispute Resolution in New Zealand: A Law Reform and Regulation Perspective

This paper investigates the issue of online and automated dispute resolution from a law reform and regulatory perspective. It argues the growing prevalence and capabilities of online dispute resolution has created both opportunities and risks for consumers and for dispute resolution policy in New Zealand. In particular, the significant risk of harm occurring if the technology is permitted to develop without any regulation or governance now warrants proactive governmental intervention to provide a protective legal framework. A proposed regulatory model is put forward, which encompasses both direct legal and indirect methods of regulation.

Full Paper Available Here

Charlotte Austin, Victoria University of Wellington, Faculty of Law

Regulating Bot Speech

Abstract:

We live in a world of artificial speakers with real impact. Chat bots befriend children in order to acquire marketing data. Robotic telemarketers laugh at the suggestion that they are not real. Russian social media bots foment sufficient political strife to merit a spotlight in Congressional hearings. Concerns over bot speech have led prominent figures in technology to call for regulation. Legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human. This essay is the first to consider how efforts to regulate bot speech might fare under the First Amendment. At first blush, requiring a bot to self-disclose raises little in the way of free speech concerns—it does not censor speech per se, nor does it unmask the identity of the person behind the automated account. A deeper analysis, however, reveals several areas of First Amendment tension that any bot disclosure law would need to address. These include a poor fit between the disclosure requirement and the harms such a law would aim to address, the potential for unmasking anonymous speakers in the enforcement process, and the creation of a scaffolding for censorship by private actors and other governments. We offer recommendations for legislators who seek respond to the real risks autonomous speakers pose while avoiding these pitfalls.

Full Paper Available Here

Ryan Calo, University of Washington, Stanford Law School, Yale Law School; Madeline Lamo, University of Washington

Legal Deserts: a Multi-State Perspective on Rural Access to Justice

Abstract:

Rural America faces an increasingly dire access to justice crisis, which serves to exacerbate the already disproportionate share of social problems afflicting rural areas. One critical aspect of that crisis is the dearth of information and research regarding the extent of the problem and its impacts. This article begins to address that gap by providing surveys of rural access to justice in six geographically, demographically, and economically varied states: California, Georgia, Maine, Minnesota, South Dakota, and Wisconsin. In addition to providing insights about the distinct rural challenges confronting each of these states, the legal resources available, and existing policy responses, the article explores common themes that emerge through this multi-state lens, thus framing a richer, broader discussion of rural access to justice, with particular attention to the rural attorney shortage.

Written for a special issue on “Revitalizing Rural,” the article ultimately proposes a two-step approach toward closing the rural justice gap. First, although the information presented here provides a solid foundation, a critical need remains for ongoing careful and thoughtful study of the legal needs and lack of legal resources in rural areas. Second, the unique institutional, structural, and demographic characteristics of rural areas will require tailored, innovative, and data-driven solutions to match appropriate legal services with needs. We advocate a re-thinking of the roles of many justice system stakeholders, with particular attention to the critical steps that legal educators should take to bridge the justice gap. Our hope is that this article will inform and expand access-to-justice conversations so that they more intentionally address the legal needs of the vast rural reaches of our nation, thus furthering the ultimate goal of realizing access to justice for all Americans.

Read Full Paper Here

Lisa R. Pruitt University of California, Davis – School of LawAmanda L. Kool Harvard University, Law School – Faculty, Transactional Law ClinicsLauren Sudeall Lucas Georgia State University College of LawMichele Statz University of Minnesota – Duluth – School of Medicine; Danielle M. Conway University of Maine School of Law; and Hannah Haksgaard University of South Dakota School of Law.

Solicitors Regulation Authority publishes research on trainee salaries

The SRA has released a new impact assessment looking at the deregulation of the prescribed SRA minimum salary for trainees. In 2014, the SRA removed the minimum salary levels for trainee solicitors. The previous levels of prescribed salary were replaced with a requirement for trainees to be paid at least the national minimum or living wage, with the idea that salaries should be set by market forces and the profession itself and that this could help increase the number of training contracts and access to the profession.

In particular the SRA wanted to find out about the impact on the distribution of salary levels of trainee solicitors and the association between salary and diversity and equality characteristics.

What was done?

  • Analysed data on 33,000 trainee solicitors, who started their training between January 2011 and December 2016;
  • Analysed the data of firms employing these trainees;
  • Assessed the relationship between trainees’ salary with the policy change, their diversity characteristics and firms who offer the training contracts;
  • Carried out online surveys aimed at employers, trainee solicitors and students, paralegals and others working in the legal sector, to seek their views on the impact, if any, of the removal of a prescribed minimum trainee salary.

Key Findings

Since the removal of the minimum trainee salary:

  • There has been an increase in the number of training contracts
  • Trainee pay has dropped, on average by £560 per year. The main cause of this has been a drop in the salary of the lowest earning trainees.
  • The majority of trainees (75%) and firms (82%) felt that the change had not had an impact (either positive or negative).
  • Trainees are now significantly more positive about salary levels than they were in 2012
  • The average pay gap between different ethnic groups has reduced significantly. This is mainly as a result of reductions in the salaries of White trainees. Black and Asian trainees are still generally paid less, as they are more likely to work in firms that pay less, such as sole practices and firms specialising in criminal, litigation or real estate work.
  • The average gender pay gap has increased slightly. Even taking account other factors such as the type of firm worked in, female trainees are still on average earning slightly less than males. The data did not provide evidence as to why this might be the case.

Read more about the SRA’s findings: Download Report