JordanFurlong + governance   135

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling? | Canadian Lawyer
“It really is just a shortage of positions altogether,” says Scheffelmair, who is also vice chairwoman of the Canadian Bar Association law student section. “There's not a lot out there. They’re very scarce.”

The result of more trained lawyers from home and abroad and law firms not offering enough articling positions to keep up with the increase is that, every year come August, 200 to 300 candidates will have still not found a position. Many of these candidates then won’t end up in their preferred practice area or their ideal location and pay expectation, the LSO states.
articling  admission  governance 
22 days ago by JordanFurlong
Convocation Approves Ryerson’s Integrated Practice Curriculum (IPC) – Slaw
This week, Convocation at the Law Society of Ontario voted to approve the Integrated Practice Curriculum (IRC) for Ryerson’s new law school. This will make Ryerson the second school in Ontario, following Lakehead University in 2014, to adopt this model.

Approval of the proposed curriculum, which is available online, is based on the 2014 list found in the Integrated Law Practice Program for Law Schools document, which reviews exposure to specific skills and tasks, and demonstration and assessments. What this approval means is that graduates of the new law school, which are expected in 2023, will not have to complete articling in order to obtain licensing.
schools  admission  training  governance 
may 2019 by JordanFurlong
Compliance-based regulation debate continues | Bencher Elections 2019
“Small law firms will have to spend a lot of money, and that will affect their ability to service certain members of the public,” he says. “So, I’d want to see strong evidence that compliance-based regulation will protect the public interest, and I’m not sure we’re there.”

Andrew Spurgeon, a personal injury lawyer and partner at Ross & McBride LLP in Hamilton, is also a bencher standing for re-election.

He leans to some sort of compliance-based regulation.

“My intuitive sense is that operations that have one or two or three lawyers don’t have the risk management structure that compliance-based regulation would create,” he says. “But it’s important to avoid heavy-handed regulation and concentrate on facilitating better compliance through measures that are less expensive than the system we have now.”
governance  compliance  regulation 
april 2019 by JordanFurlong
Big Four May Gain Legal Market Foothold With State Rule Change
An attempt by several Western states to relax their bar ethics rules to make the legal system more affordable could have an unintended effect—allowing Big Four accounting firms to finally gain a foothold in the U.S. legal market.

Leaders of task forces in California, Utah, and Arizona say a widespread lack of access to justice for the poor and middle class in civil and family courts spurred them to action. But they note that a move to remedy this problem could lead to a competitive assault on Big Law from the Big Four accounting companies, EY, PwC, Deloitte, and KPMG.

“I’ve heard that query more than a few times over the last several months—that the Big Four are going to swoop in,” said John Lund, co-chair of the Utah access to justice task force and a shareholder with Parsons Behle & Latimer in Salt Lake City. “Well, what Big Law could say to that is: As long as the playing field is level, bring it on.”
governance  accountants  access  regulation  competiton 
april 2019 by JordanFurlong
Washington State Bar Association Faces Possible Extinction
A bill that would diminish or dissolve the Washington State Bar Association carries potentially serious risks, including legal action, if it’s finalized, the group is warning legislators.

Three association governors and the group’s president-elect, Rajeev Majumdar, were to appear before the state Senate Law & Justice Committee on Tuesday to press the case against the legislation which has already cleared the House.

The proposal is “premature, its implications are currently unknown, and its unintended consequences are potentially substantial, irreversible and likely to lead to federal litigation,” the group said in prepared remarks.

The bill reflects an ongoing national conversation about the appropriate role of mandatory bar associations in light the U.S. Supreme Court decision in North Carolina State Board of Dental Examiners v. FTC.

That decision strips anti-trust immunity when boards are populated by working practitioners not under state supervision. Also in play is requiring mandatory membership fees that could impair First Amendment rights, as articulated in the high court in Janus v AFSCME.
regulators  governance  courts 
march 2019 by JordanFurlong
Why law firms can’t compete | Canadian Lawyer Mag
While fixing law firm capital structures is entirely within a firm’s control, extending ownership to non-legal talent is not. The list of potential key players is long: business and HR executives, technology professionals, project managers, accountants, business process specialists, design-thinkers and administrative professionals, to name a few. Our competitors are winning the battle for this talent because they can attract, retain and align key talent (irrespective of specialty or background) around a common goal through ownership in the enterprise. Unfortunately, law firms do not currently have this option. Even if we can set aside our egos and admit that non-lawyers play a meaningful role in firm success, we are prevented by regulation from opening our capital structures to attract and retain this talent. Without this important tool, we are giving our competition a head-start in the race towards improved access to legal services and better client service — the foundations of our professional mandate.
clementi  governance 
february 2019 by JordanFurlong
Provincial government tables legislation enabling the Law Society to regulate licensed paralegals | The Law Society of British Columbia
Since 2008, the Law Society has been exploring improving access to justice through the creation of a new, regulated category of legal service provider. In 2014, the Law Society asked the provincial government to amend legislation in order to enable the Law Society to put in place a new category of legal service providers and authorize the Benchers to determine the services that they could provide.

This afternoon, the provincial government tabled a bill that would give the Law Society the authority that we have been seeking. Bill 57, the Attorney General Statutes Amendments Act, 2018 includes legislative amendments that permit but do not require the Benchers to license paralegals to deliver limited legal services as determined and approved by the Benchers. A link to bill may be found here.

The Benchers will take time to get the rules and responsibilities of any new category of legal service providers right. The recognition that there should be a range of legal service providers is one of the elements of the Law Society’s efforts to address unmet and underserved legal needs and improve the public’s access to legal services. While several steps are required before any changes in who may provide legal services take effect, we are committed to continuing to engage with and receive input from the profession.
paraprofessionals  governance  regulation  access 
january 2019 by JordanFurlong
Tensions in Legal Services Act coming to fore, says review - Legal Futures
“The world that existed in 2004 simply does not exist in the same way now, and the inherent tensions in the 2007 Act are becoming increasingly apparent.”

The paper went through these in detail, from the “inflexibility” of the Act – concerns over the move away from self-regulation that it entailed meant “much prescriptive and protected detail was ‘hard-wired’” into it – to the “competing and possibly inappropriate regulatory objectives” that are at the Act’s core.

“For example, the objective to protect and promote the public interest does not always sit easily with another to protect and promote the interests of consumers, or with yet another to promote competition in the provision of legal services.”

Reflecting work Professor Mayson carried out in 2010, he said the “pivotal” and limited set of reserved activities were “anachronistic and do not necessarily include all activities that ought to be regulated”.

Further, title-based authorisation of lawyers resulted in additional burden and cost in relation to some activities being regulated that do not need to be – even though Parliament has decided that only the reserved activities have to be regulated, as soon as someone is authorised as a solicitor or barrister, “their regulator will then assume jurisdiction over all of the activities carried out by that person, both reserved and non-reserved”.

It has also led to multiple regulators overseeing the same activity in different ways, as well as a regulatory gap that exposes consumers to potential harm from unregulated providers “and puts qualified practitioners at a competitive disadvantage”.

Other problems were “an incomplete separation of regulation and representation” at the Law Society, Bar Council and others, and “the potentially misconceived ‘mission’ basis of regulation and regulators”.
regulation  governance  clementi 
october 2018 by JordanFurlong
LawNext Episode 9: Bill Henderson on Changing the Non-Lawyer Ownership Rules | LawSites
Should legal ethics rules be changed to allow non-lawyer ownership of legal services providers? So controversial is the question that it was major news in July when the State Bar of California voted to appoint a task force to study and make recommendations on the issue. What spurred the bar to take this action was the Legal Market Landscape Report it commissioned from William D. Henderson, professor at Indiana University Maurer School of Law. Henderson is my guest on today’s episode to discuss his findings and recommendations.
regulation  governance  clementi  ethics 
september 2018 by JordanFurlong
The failed storefront revolution and the inner guild in all of us (059) | Legal Evolution
One of the reasons that the problem of access and affordability of legal services is still with us is that members of the legal profession are unable to agree on its root causes. Cf. Post 057 (discussing framework for solving very difficult problems). Thus, I don’t expect all readers to agree with my analysis on lessons learned from the storefront revolution.

In brief, I believe that the youthful and idealistic visions of Joel Hyatt, Len Jacoby, and Steven Meyers failed because, within the existing regulatory structure, they were unable to balance the needs of ordinary people, who were cash-strapped and intimidated by the legal system, with the needs of licensed lawyers seeking rewarding work for adequate pay.

Some practicing lawyers may resent this characterization, but Hyatt Legal Services and Jacoby & Meyers were/are professional service firms.  The fundamentals of this model are explained by David Maister in his classic book, Managing the Professional Service Firm (1993).  Obviously, a professional service firm can only succeed if it can operate profitably.  Yet, that outcome is only possible if a firm’s management can simultaneously succeed in two markets: the market for clients and the market for talent. See Post 010 (discussing model in the context of managed legal services).

The graphic below depicts the Maister model:
access  regulation  governance  competition  ethics 
august 2018 by JordanFurlong
Legal Market Landscape Report (058) | Legal Evolution
The State Bar of California recently underwent a reorganization that separated the regulatory and trade association functions.  The State Bar retains regulatory authority while the California Lawyers Association (CLA) is the new voluntary bar that manages CLE and educational activities. The State Bar Act of 2017, which mandated these changes, also required transition to a Board comprised entirely of Trustees appointed by the State Bar’s oversight bodies – the California Supreme Court, the Legislature and the Governor.  The Trustees were formerly elected by the membership.  The reconstituted board will consist of seven attorneys and six non-attorneys to be appointed for four year terms.  Amidst these changes, the Trustees’ approved a strategic plan that required a comprehensive study of the market they are charged with regulating. My report is part of this effort.
regulation  governance  access  competition  innovation 
july 2018 by JordanFurlong
An Unlikely Source Stirs Debate Over Avvo Legal Services | Above the Law
The IARDC report addresses these concerns head on. It proposes a framework that would regulate both lawyers who participate in for-profit referral services and the services themselves. The framework would have two primary components:

Amend the Illinois Rules of Professional Conduct to allow lawyers to participate in qualified lawyer-client matching services and to pay the service “a fee calculated as a percentage of legal fees earned by the lawyer to whom the service has referred or matched a matter.” Note that while services such as Avvo typically characterize the fee paid by the lawyer as a marketing fee, this proposal would explicitly allow a percentage of the legal fee.
Create a new rule providing for the qualification and registration of lawyer-client matching services. Services would register with and be regulated by the ARDC and would have to meet certain standards, including that it will not interfere with an attorney’s independent professional judgment or require the attorney to violate the professional conduct rules.
The ARDC report suggests that there is some hypocrisy in the ethics opinions that prohibit participation in Avvo Legal Services. It points out that most states permit lawyers to participate in non-profit referral services and pay referral fees to those services. Many of those non-profit services are run by the same bar associations that have opined against for-profit services.

“Despite the fact that some bar associations have adopted flat-fee referral service approaches similar to Avvo Legal Services, many states either have prohibited their lawyers from participating in for-profit services like Avvo Legal Services, or have not proposed any modifications to their rules,” the report says.

The rationale for this discrepancy, the report says, “is the purported concern that a for-profit company will affect a lawyer’s independence and will control the lawyer-client relationship.” It notes that the same concerns exist for pre-paid legal services plans — perhaps to an even greater extent — yet states permit lawyers to participate in these plans.

The report recommends addressing this concern by directly regulating the referral service. This approach, it says, “would better protect clients, cultivate attorney-client transactions, and maintain the integrity of the legal profession.”
regulation  competition  fee-splitting  ethics  governance 
june 2018 by JordanFurlong
Nova Scotia’s Stealth Revolution - Not Just For Lawyers
With these decisions, Nova Scotia has gone beyond the theory of its Policy Framework in order to implement both entity regulation and compliance-based regulation in a concrete manner. While Nova Scotia’s regulations in this regard will continue to evolve, and in all likelihood evolve considerably, that does not detract from the significance of these initial, ground breaking decisions. Admittedly, from the perspective of England & Wales and Australia, there is nothing ground breaking about them, given that those countries adopted entity regulation as well as “outcomes focused regulation” (England & Wales) and “proactive, management based regulation” (or “PMBR,” a term Ted Schneyer coined for Australia) quite some time ago. However, from the perspective of Canada and the United States, the NSBS decisions are ground breaking indeed. No other Canadian province or US state has even come close to adopting entity regulation or compliance-based regulation to this extent. Not yet, anyway. (Illinois and Colorado have taken tentative first steps).
regulation  governance  ethics  clementi 
january 2018 by JordanFurlong
What's a lawyer now? - Remaking Law Firms
Fewer lawyers will have traditional ‘practice’ careers, and many will work in hybrid practice/delivery roles that require a combination of practice and delivery skills. Legal delivery is not simply about lawyers anymore, and ‘just knowing the law’ is an insufficient toolkit for lawyers to function effectively in the new legal marketplace. Likewise, other professionals and paraprofessionals—not to mention machines—are now key providers of legal services. Legal culture must embrace these collaborators, not encourage the maintenance of regulatory roadblocks. Those barriers are already being circumvented with the full support of consumers eager for greater access, more efficient delivery, more customer-centric, and lower priced legal service providers.
Law is rife with dualities. Lawyers represent two clients simultaneously–those that retain them and society at large. Legal ‘practice’ refers to the core differentiated judgments and skills (trial work, M&A advice) that lawyers provide, and ‘legal delivery’ is the business of delivering legal services in a more efficient manner (think: ‘legal operations’). The legal ‘profession’ focuses on practice, and the ‘legal industry’—pegged at $1 Trillion annual global spend—refers to the business of delivering legal services. Legal culture is rooted in a mindset of ‘lawyers versus non-lawyers’ where lawyers are dominant and set the rules. But the marketplace is demanding a very different culture, one where the profession is subsumed by an efficient, consumer-centric delivery. And if this sounds foreign, consider the metamorphosis of medi
regulation  governance  competition  robo 
december 2017 by JordanFurlong
California bar spins off its sections amid concerns over liquor spending, resort functions
The State Bar of California has spun off its 16 voluntary sections into a nonprofit entity, making the state bar strictly a disciplinary and regulatory agency that is mandatory for state lawyers.

The changes are authorized in a bill signed by California Gov. Jerry Brown on Monday, report Courthouse News Service, the Metropolitan News-Enterprise and a state bar press release.

The sections began to consider a split from the state bar last year, partly because of new restrictions that included a ban on spending on alcohol at events and on contracting with resort-style venues, Courthouse News Service reported in May. Sections had argued the restrictions would hurt membership.

The bill maintains annual state bar dues of $315 for practicing attorneys with active status, which comes to $430 with additional fees. The cost of a voluntary section membership is about $95 a year, according to Courthouse News Service.

The bill signed by Brown also transitions the state bar’s board of trustees to a group appointed entirely by the California Supreme Court, the legislature and the governor. Lawyers will no longer elect some trustees. The board will consist of seven lawyers and six nonlawyers.

The board reforms follow a February 2015 Supreme Court decision that found a North Carolina dental regulatory board made up mostly of dentists didn’t have state-action antitrust immunity in its efforts to to block nondentists from providing teeth-whitening services. The court said there is no immunity unless the challenged restraint of trade is clearly articulated state policy and it is actively supervised by the state.
october 2017 by JordanFurlong
Prism Legal Law Firm Ownership: An Evidence-Based Approach - Prism Legal
When it comes to who can own US law firms, we seem stuck in the pre-enlightenment age of speculation and dogma. Articles and commentary I read about law firm ownership presume much and present no evidence. This is perplexing for a profession that prides itself on analytic thinking and marshaling evidence.

Bar regulators must enter their own age of enlightenment. First, they must be honest about the goal: protect lawyers or clients (and perhaps acknowledge consumers and corporations need different rules). Then they must act on evidence.

With the goal clear, search for evidence that supports a plan to achieve the goal. And be willing to re-visit the plan over time as new evidence emerges.

On law firm ownership, I offer two observations. First, Australia and the United Kingdom allowed, more than five years ago, ownership by those not lawyers. Their skis have not fallen. I read many articles from both jurisdictions and none reports client harm.

And second, consider who really controls large US law firms. A September 1st American Lawyer article title asks “As Firms Centralize Management, Are Equity Partners Employees?” It suggests control by a small subset of partners on an executive committee. If true, how does control by a handful compare to the checks and balances of an outside Board of Directors and/or shareholders with a vote?

So my answer, not in the list of choices at Adam Smith, Esq. is “What are we trying to protect exactly and what evidence should guide our answer?”
clementi  ethics  governance 
september 2017 by JordanFurlong
Conflicted Regulation in the Public Interest – Slaw
It is ironic that client conflicts are treated so seriously while the inherent conflict in self-regulation is mostly ignored. Commonly, this conflict is not really recognized or understood. Some think that the public interest is virtually invariably the same as the interest of the legal professions. Pressures from stakeholders and the realities of elections affect how elected benchers perceive issues and their roles.
regulation  governance  conflicts 
september 2017 by JordanFurlong
How To Build a Better Bar Exam: Look North |
A trio of law professors now say that bar examiners in the United States should look to Ontario, Canada, as a model for building a better bar exam. The Law Society of Upper Canada, which administers the licensing exam throughout the province, unveiled an exam in 2006 that focuses on lawyer competencies, not just legal knowledge. The test is open book, and questions are designed to assess lawyering skills in addition to legal analysis, according to a post on the Law School Café blog, written by Georgia State University College of Law professor Andrea Curcio, University of Minnesota Law School professor Carol Chomsky, and Touro College Jacob D. Fuchsberg Law Center professor Eileen Kaufman.

“Unlike the U.S. exams, the [Canadian] exam is open-book, so it tests the ability to find and process relevant information rather than the ability to memorize rules,” the post reads. “Most important, it tests a wider range of lawyering competencies than U.S. exams, and it does so in the context of how lawyers address real client problems rather than as abstract analytical problems.”

An overhaul of the bar exam in the United States is ripe for discussion, Curcio, at Georgia State, said in an interview Wednesday. Pass rates have plummeted in many states over the past three years. A growing number of jurisdictions, including California and Ohio, are currently studying or plan to study the bar exam, Curcio said. A number of legal academics also have called for the formation of a national task force to examine the test.

“I think there is increasing dissatisfaction with the exam and some real momentum for change,” she said.

Erica Moeser, president of the National Conference of Bar Examiners, defended the Multistate Bar Exam—the six-hour, 200 multiple-choice-question portion of the test—as far more than just a memorization exercise. The current exam tests legal knowledge, but it also “involves applying knowledge and using reasoning,” she wrote in an email Wednesday.
admissions  training  governance 
july 2017 by JordanFurlong
Failing State Bars Are Deunifying, and That's Not Necessarily Bad
Despite resistance to the change, the result of having a voluntary trade association separate from the regulatory agency seems like a good thing. I am a member of two unified bars and two deunified bars, so I do see how they operate differently.

A regulatory agency focused on disciplining attorneys for violating ethics rules is a poor choice for a lobbying body for lawyers. In fact, when your annual bar dues go to lobbying efforts by the state bar, it is unlikely that those efforts support you in your professional life the way you might expect them to. In the world of discipline defense, clients frequently make comments like “but the Bar is supposed to be on my side!” Actually, no it isn’t. The missions of state bar regulatory agencies are typically couched as public protection; in other words, they are designed to protect the public from lawyers, not to protect the lawyers.

A regulatory agency focused on disciplining attorneys for violating ethics rules is a poor choice for a lobbying body for lawyers.
Deunifying paves the way for lawyers to have real lobbying organizations, as most state medical associations do. It seems to be a great idea for a massive group of licensed professionals to have an independent lobbying organization.

Separating the bar also gives an opportunity for lawyer assistance programs to be privatized, a point for which I recently advocated here on Lawyerist. An entity charged with prosecuting lawyers who are unable to adequately function due to addiction is not the right entity to help those same lawyers.

“The Profession Must Actually Help Addicted Lawyers”
Assuming that the voluntary trade association is an independent one and not a government agency, another benefit is the absence of governmental red tape and waste.
governance  regulation 
may 2017 by JordanFurlong
Too many new lawyers? Build a wall? – Slaw
Over the last few years, there has been much debate about how to deal with the significant increase in the numbers of Canadian and foreign law school graduates seeking licensing in Ontario. While the number of articling positions has significantly increased, the number of applicants has increased even more quickly. The Law Practice Program (LPP) was established several years ago as an additional pathway to address this shortfall and to pilot a new approach to experiential training.
access  admission  governance  regulation 
march 2017 by JordanFurlong
ABA President-Elect Moves to Winnow Legal Education Section's Role | National Law Journal
Under Education Department rules, the area of the ABA that handles law school accreditation must be independent from the larger organization. Bass's proposal calls for all nonaccreditation functions to shift to the new Commission on the Future of Legal Education, which would handle conferences, publications, and be a "forward thinking body that would focus on the future of legal education." Commission board members would be a combination of deans, academics, bar examiners, state supreme courts, and a law student appointed by the ABA president to three-year terms. Subcommittees would examine topics, including bar exams, the length of law school, technology and alternative teaching methods.
schools  association  governance  innovation 
february 2017 by JordanFurlong
California legislature may split state bar into two separate entities
Assembly member Mark Stone, a Democrat from Santa Cruz who chairs the judiciary committee that held the raucous hearing, says the chief concern of legislators is that the bar isn’t adequately protecting the public—by law, its highest priority.

There is some basis for that concern. Last spring, someone provided documents to the Los Angeles Daily Journal, a legal-industry newspaper, showing that about 300 abandoned complaints about possible cases of unauthorized practice of law had been discovered. Although bar policy required that the complaints be read within 20 days, the Daily Journal said, the majority had gone more than two months without an assignment.

That news came less than a year after a report from the California state auditor criticized the bar for lax discipline. Indeed, the California Supreme Court sent back 27 cases decided in 2011, the state auditor’s summary said. The bar ultimately handed down harsher sanctions (including five disbarments) in 21 of those cases.

And then there are the antitrust concerns. Under the U.S. Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, state licensing boards don’t have immunity from antitrust lawsuits when they are controlled by active members of the profession being regulated. The court held that, to have immunity, state agencies must have either a majority of nonparticipants making decisions or meaningful state supervision.
governance  regulation 
january 2017 by JordanFurlong
NZ says government will be money-laundering watchdog for lawyers, estate agents | Reuters
The Department of Internal Affairs (DIA) would scrutinize the new professions covered by the rules, including lawyers, real estate agents, accountants and car dealers, according to a proposal released by the Ministry of Justice on Tuesday.

The new rules will be introduced next year.

The government has come under pressure to tackle money laundering since the release in April of the Panama Papers, which showed how offshore companies often use New Zealand trusts as a way to create a secretive un-taxed vehicle in the South Pacific nation.

The Ministry of Justice said "self-regulating bodies" had no experience in tackling money-laundering and the financing of terrorism.

"Having multiple agency supervision by self-regulatory bodies isn't considered appropriate in New Zealand," the ministry said.
ethics  governance  regulation 
december 2016 by JordanFurlong
[no title]
Persistent labour market imbalances in education, law, medicine, nursing, architecture and engineering

Professional degree holders, whose credentials prepare them for a specific occupation, might assume they'll move directly into a job post-graduation. But a new study from the Higher Education Quality Council of Ontario finds that attempts to manage these professions have resulted in swings between under-supply of new entrants and over-supply of graduates.

Project description

Labour Market Trends and Outlooks for Regulated Professions in Ontario examines enrolment, graduation trends and labour market outcomes for graduates of professional programs in education, law, medicine, nursing, architecture and engineering.

Sources include: membership data from professional regulatory bodies; Statistics Canada's Labour Force Survey, National Household Survey and National Graduates Survey; administrative data compiled by the Ontario Fairness Commissioner; enrolment and graduation data; Stokes Economic Consulting's Provincial Occupational Model; and supply and demand forecasts by Prism Economics and Analysis.
regulation  governance  competition 
december 2016 by JordanFurlong
Law Practice Program lives to see another two years
“So it’s important that we listen and that we reflect on what we’re hearing.”

The program was initially proposed as a five-year pilot, but Convocation cut it down to three years over fears it would become “entrenched.” 

But the shortened program meant the committee tasked with reviewing the LPP only had so much data to evaluate it. 

Proponents say the program needed to be extended in order for it to be properly assessed.

Bencher Gina Papageorgiou, who supported the recommendations to extend the LPP, said the law society’s review of the program clearly shows the LPP was better than articling in certain ways.

“Our obligation is to govern in the public interest and I cannot understand how we could think about moving away from a program that actually trains people —
articling  training  admission  governance 
november 2016 by JordanFurlong
DOJ and FTC Weigh In on Exempting Websites from the Practice of Law | Richard Zorza's Access to Justice Blog
However, the purpose of this post is to draw attention to the staff  letter submitted by the US Department of Justice and the Federal Trade Commission, addressing some of the general issues raised by this topic.  Their comments should be cited regularly by those advocating flexibility in the system.  Specifically (underlining added in italicized and quoted text below is by me ):
access  competition  regulation  governance 
november 2016 by JordanFurlong
LSUC committee recommends scrapping LPP
“A major objection that I and others had to the proposal that carried . . . was that it created a two-tiered system and that graduates of the Law Practice Program would not be perceived in the same light as students who secured articling jobs,” says MacKenzie.

MacKenzie says he would have preferred to see a system in which the law society had more articling positions available.

“We’ve seen over time that firms in certain practice areas and in certain parts of the province that formerly hired articling students have stopped doing that for a variety of reasons,” he says.

Proponents of the LPP have said it provides a skills-based program that is just as good if not better than the experience articling provides and that it offers opportunities that otherwise would not exist.

The program entails four months of course work followed by a four-month placement.

The report — which was based on information gathered from surveys and focus groups with candidates and employers — says that LPP candidates have been more diverse than their counterparts in articling.

In the program’s first year, surveys showed that 33 per cent of LPP candidates identified as racialized, compared to 21 per cent of articling students that year.
articling  innovation  admission  governance 
september 2016 by JordanFurlong
Revolutionary road - Legal Futures
I have sympathy with this. But at the same time the tensions inherent in the Clementi ‘compromise’ have been evident from the start – indeed, they breathed life into Legal Futures – and it replaced one alphabet soup of legal bodies with another. Frankly, the LSB’s plan is the logical conclusion of the journey started by Sir David Clementi.

The evidence shows that the market is not working as it should (and legal services are a market). That’s what the Competition and Markets Authority said in its interim report in July, with lack of transparency over price and service the main problem. Competition is not just a numbers game – it’s the quality of competition that counts.

Earlier in July, in its triennial review of the Legal Services Act, the LSB also highlighted the “continued scale of unmet legal need” (the biggest issue facing the market, in my view) and that there was little evidence of the type of change in market outcomes – price, quality and access – associated with changes in competition.

Yet lawyers should not be treated like any other business, the argument goes. They have unique qualities that require protection, most of all their duty to uphold the rule of law, as well as those professional principles. This, of course, is why they are and should continue to be regulated – it’s not an entirely economic argument. But equally it is not a blank cheque.

Like so many things in the UK, the legal profession has grown in a higgledy piggledy fashion, influenced by centuries of history and tradition. We muddle on as best we can and generally make a decent fist of it. That’s what we Brits do.
regulation  governance 
september 2016 by JordanFurlong
Introducing the Management System Self-Assessment Tool | Nova Scotia Barristers' Society
A pilot project is now underway to develop a tool for lawyers to self assess their Management System for Ethical Legal Practice (MSELP), a central piece of the Society’s Transforming Regulation initiative. Throughout the fall and winter, a cross-section of legal entities across the province will test the draft self-assessment tool that has been developed. Find out the details from Jennifer Pink, the Society’s Legal Services Support Officer.  

Q: Where does the pilot project fit into the bigger picture of our movement toward legal services regulation in Nova Scotia?

A: Over recent years, we’ve engaged with the profession over legal services regulation. Through extensive consultation, the Society’s Council developed the 10 elements that comprise the MSELP. From there, we’ve developed a tool to help lawyers self assess the presence and depth of these elements in their practices. The idea we want to present is this: if your practice has systems to support all 10 elements, you have the infrastructure to deliver legal services in an ethically sound and competent way.

We’re looking to develop a self-assessment model
regulation  governance 
september 2016 by JordanFurlong
State Bar disaster continues as California politicians ponder fate | The Sacramento Bee
Multiple reports by outside auditors about its managerial shortcomings, regulatory backlogs and financial irregularities, very public exchanges of charges and countercharges by State Bar officials, and dueling lawsuits all attest to the mess.
governance  regulation 
august 2016 by JordanFurlong
Unmet Legal Needs – The Challenge to Legal Practice and to Self-Regulation – Slaw
Regulation of legal services differs in important ways across the common law world. In Canada, self-regulation is generally[1] the approach. Canadian law societies are authorized by provincial legislatures to decide who can practice law and provide legal services[2]. The substantial majority of the governors of the law societies are lawyers elected by lawyers. In Ontario, paralegal benchers are elected by regulated paralegals.
governance  regulation  paraprofessionals 
july 2016 by JordanFurlong
Department of Justice and Staff of the Federal Trade Commission Highlight Consumer Benefits of Expanding Competition for Legal Services | OPA | Department of Justice
The Department of Justice’s Antitrust Division and the staff of the Federal Trade Commission have submitted a joint statement to the North Carolina legislature on the potential competition and consumer benefits of legislation that would allow websites to generate legal forms for consumers.  Websites that offer this type of interactive software may be more cost-effective for some consumers, exert downward price pressure on licensed lawyer services, and promote more efficient and convenient access to legal services. 

The agencies also noted that scope-of-practice laws can have valid consumer protection justifications.  However, they recommend that such restrictions should be imposed only where there is credible evidence of likely harm to consumers.  Any restrictions should be narrowly tailored to address the harm and not unnecessarily inhibit new and competitive ways to deliver legal services for the benefit of consumers.

“Competition between lawyers and non-lawyers for certain legal services can drive down prices, provide consumers with new and more convenient options, and expand access to legal services,” said Principal Deputy Assistant Attorney General Renata Hesse of the Antitrust Division.  “When analyzing House Bill 436, the North Carolina General Assembly should consider the benefits to consumers and competition that would result from allowing consumers to use interactive software to generate legal forms.” 

The joint statement is in response to a request from North Carolina State Senator Bill Cook.  The request asked for views on North Carolina House Bill 436, legislation that would exclude from the statutory definition of the practice of law the operation of a website that generates legal documents based on consumer responses to questions presented by interactive software, provided certain conditions are satisfied.
regulation  governance  competition 
june 2016 by JordanFurlong
Drew Hasselback: Why the Law Society of Upper Canada’s move toward ‘entity regulation’ matters | Financial Post
Taking some baby steps toward entity regulation is hardly the same thing as leaping toward a world of Canadian law firm IPOs. But entity regulation would be necessary before that could ever happen. And there is that old proverb: a journey of a thousand miles begins with a single step.
governance  regulation  ethics 
june 2016 by JordanFurlong
CNS - Plan to Divide California State Bar Draws Fire
 LOS ANGELES (CN) — A proposal to break apart the State Bar of California into a regulatory agency and a separate voluntary trade association drew sharp attacks Monday during a daylong public hearing before a special bar committee.
     Carving off a regulatory agency focused just on the public-protection issues of lawyer licensing and discipline from other state bar activities could cripple the bar's work to promote legal aid services and access to justice for the poor and middle class, speakers told the Task Force on Governance in the Public Interest.
     Providing access to justice for all is "part and parcel of what it means to be a lawyer," said Los Angeles City Attorney Mike Feuer, who previously headed the legal aid provider Bet Tzedek. Any proposal to remove that issue from the State Bar "is very troubling to me," he said.
regulation  governance 
may 2016 by JordanFurlong
Laying Odds on a Split of the State Bar
Two members of the state bar's board of trustees this week proposed that the bar finally sign its own divorce papers. Dennis Mangers, a former state assemblyman, and Joanna Mendoza want to create a 13-member California Legal Services Regulatory Board to focus on lawyer admissions and discipline and a separate, nonprofit California State Bar Association that would advocate for the profession on behalf of voluntary members. The split would happen by 2019.
"I'm no longer interested in tinkering around the edges of a grossly dysfunctional organization," Mangers, a nonlawyer who says trustees are too focused on "trade association" activities, told a bar committee Monday.
regulation  governance 
april 2016 by JordanFurlong
COLPs failing to report problems to SRA, groundbreaking study finds - Legal Futures
The first academic study of compliance officers for legal practice (COLPs) has found a “tendency” not to report regulatory failures to the Solicitors Regulation Authority.

Professor Joan Loughrey, deputy head of the University of Leeds law school, said one COLP even failed to report the theft of client money through internet fraud.

The professor said the study, based on in-depth interviews with 24 law firms, including 15 alternative business structures, found that the majority considered outcomes-focused regulation (OFR) to be a “more demanding form of regulation which requires greater thought”.

However Professor Loughrey said that while the “ambiguity” of OFR allowed for innovation and creativity, it also led to greater variation, with much depending on the attitudes of individual COLPs.

Speaking at a debate hosted by University College London’s Centre for Ethics and Law, the professor said: “We found a tendency to read down the regulatory obligations whenever COLPs were asked whether they reported breaches.

“One COLP said his firm was always pushing the boundaries in terms of what it could do to get round the referral fee ban, and what it could do in terms marketing and publicity, and said the boundaries were frankly blurred.”

The professor described as “questionable” the failure of another COLP to report the theft of client money through internet fraud.

Her study uncovered evidence of COLPs at ABSs with mainly non-lawyer management struggling to get across the importance of following the rules.

She said two COLPs, one in a large firm, the other in a firm with three partners “reported problems in communicating what the requirements were”.

Professor Loughrey said that at the large firm, which had not previously been regulated, “there was a shock to the system when the managers were told they had to comply, and they didn’t want to”.

However, she said both COLPs “managed to get their agenda through”.

The professor said that where COLPs were not equity partners, it “made it easier for people more senior to challenge their authority and interpretation of the rules”.

She added that COLPS “appeared to be really nervous” about the consequences for them if the firm was found not to be compliant.

However, she said that the risk in not naming COLPs as responsible meant that compliance became “no-one’s responsibility” and “we saw that problem in financial services”.
governance  regulation  compliance  innovation 
march 2016 by JordanFurlong
National | Looking ahead to legal entity-based regulation
Entity regulation can cover a range of issues from data, file and client management to billing practices and equity and diversity policies.

Whatever the scope, a move to entity-based regulation will have significant impact on the future practice of legal professionals, according to former CEO of the Law Society of Manitoba Allan Fineblit.

Some models in other jurisdictions can impose a heavy regulatory burden on law firms and entities, namely England and Wales, where compliance can be “pretty difficult,” namely with respect to reporting and client monitoring requirements.
regulation  governance 
february 2016 by JordanFurlong
Will U.S. Lawyers Regulate Themselves Into Diminished Relevance? | Big Law Business
Several other industries have been disrupted because new entrants have created models enabled by technology that are “better, faster, and cheaper.” LegalZoom and others are doing this in the retail segment of the legal market. Oh, and they work with lawyers when documents alone are not sufficient to resolve a client’s need. They are not taking away legal work; they are redefining the division of labor between technology and lawyers and applying metrics and process to gauge performance from the client as well as internal sides. This is bringing new clients into the marketplace as well as advancing an acute need for access to justice.
governance  regulation  competition 
february 2016 by JordanFurlong
A National Approach to Canadian Bar Admissions? Working With the Law Schools Would be a Start – Slaw
In a nutshell, the process by which the Federation of Law Societies adopted the guidelines for the Approved Canadian Common Law degree serves as a template for how not to develop a productive relationship. As someone who was involved in the process from start to finish, I can say that it was one of the most professionally demoralizing things I’ve ever had to participate in. None of us covered ourselves in glory. All sides behaved poorly. Intemperate things were said. Hard (and often poorly thought-out) positions were taken. Some people felt that they were backed into corners. Even worse, others felt that they weren’t listened to. Back room dealing took place – sometimes in more than one back room at once! To be sure, the end result was not bad – our profession uses a much lighter hand in regulating the content of the JD program than their colleagues south of the border. But no one should feel proud of the process by which we got there.. Indeed, as far as process went, it really could serve as a case study for how not to develop a feeling of partnership.
governance  regulation  admission  schools 
february 2016 by JordanFurlong
ABA policy-making body adopts principles to guide courts in regulatiing of legal service providers « ABA News Archives
he final vote on Resolution 105 was adopted through a voice vote after a rigorous debate of nearly two hours. While setting out broad principles, such as protection of the public, transparency of services and delivery of affordable and accessible legal services, the proposal was criticized for encouraging delivery of legal services by nonlawyers and companies not guided by principles of the legal profession.

The proposal was one of more than two dozen resolutions approved by the House of Delegates, which determines association-wide policy, at the ABA Midyear Meeting in San Diego. The resolution drew about 45 requests to speak on behalf of the resolution and another 35 against it although most waived the right to speak.

The resolution acknowledges the new developments in the legal marketplace and sets out 10 regulatory principles to guide each state’s highest court as it assesses existing regulatory frameworks and any other regulations related to non-traditional legal service providers.

“We must embrace change in terms of how it will help the public that we are sworn to serve,” said Judy Perry Martinez, who chairs the ABA Commission on the Future of Legal Services. She added the resolution is “neutral” to the concepts of alternative business structures and fee splitting.

The proposal has drawn opposition from a range of state and other bar associations, as well as solo practitioners and small firms which see Internet legal alternatives as competition and services fall short of all ethical considerations. A proposal to reaffirm ABA policy against nonlawyer ownership of law firms was added to the initial proposal, and drew near unanimous support.

David P. Miranda, president of the New York State Bar Association, was the first to speak against the resolution, suggesting it opens “the door to tacit approval” of nonlawyer services. “Resolution 105 is a step backwards,” he said. “The guidelines fail to reaffirm the core principles of our profession.”

The issue pitted former ABA presidents against one another. William C. Hubbard, who established the futures commission during his presidency in 2014-15, spoke for it as did past ABA President Tommy Wells (2008-09). The motion of Wm. T. (Bill) Robinson III (2011-12) to indefinitely table the resolution failed 191-276.

In closing for the proponents of the resolution, former ABA President Robert Grey (2004-05) said the resolution provides a “framework for us to offer guidance for the leadership, development and practice of law in this country for the foreseeable future.”
clementi  regulation  governance  competition  innovation 
february 2016 by JordanFurlong
Divided ABA Adopts Resolution on Nonlawyer Legal Services | The American Lawyer
After a weekend of vigorous and sometimes contentious debates over whether nonlawyers should be allowed to provide simple legal services, the American Bar Association's House of Delegates on Monday voted to adopt a resolution that gives states a framework to consider the regulation of "nontraditional legal service providers.”
clementi  competition  regulation  governance 
february 2016 by JordanFurlong
Legal Services Regulation: The Policy Framework | Nova Scotia Barristers' Society
4.      In order to ensure the public continues to benefit from an independent legal profession, together with the protection afforded by it (e.g. lawyer-client privilege, high ethical practice standards and security of trust funds and property), the Society’s regulation will, as a matter of principle and as confirmed by the regulatory objectives, enhance public protection. However it will also, by limiting its scope of regulation, enable the expanded delivery of legal services.

5.      The Society will seek amendments to the Legal Profession Act and will amend its regulations to state that its public interest role is to regulate the delivery of legal services in the province in accordance with the approved Regulatory Objectives.

6.      The Society will regulate the delivery of legal services by lawyers and will also regulate the delivery of legal services by legal entities, which include lawyers, law firms, law corporations, law departments and other similar entities. The type of legal services and clients of the legal entity will be the key determinants of the extent of risk there is to the public from such practices, and therefore the nature of the risk-focused regulation. Lawyers and legal entities will be entitled to practice law / deliver legal services, which may be defined as follows:

The delivery of legal services involves the provision of services in circumstances where the application of legal principles and judgment with regard to those circumstances or the objectives of a person requires the service provider to have the knowledge and skill of a person trained in the law.
regulation  governance  clementi  ethics 
february 2016 by JordanFurlong
Washington Bar Suspends Ethics Opinions, Cites Antitrust Fears | Bloomberg BNA
Dec. 15 — The Washington State Bar Association has temporarily suspended its ethics committee's authority to issue advisory opinions that could be interpreted as having anticompetitive effects in the legal services market.

A WSBA spokesperson told Bloomberg BNA the move was motivated by concerns about the potential antitrust liability of ethics committee members in the wake of the U.S. Supreme Court's eye-opening ruling in N.C. State Bd. of Dental Exam'rs v. FTC, 2015 BL 48206, 31 Law. Man. Prof. Conduct 108 (U.S. Feb. 25, 2015).

“[I]t's correct that the WSBA has temporarily suspended the [Committee on Professional Ethics'] authority to issue certain advisory ethics opinions that might be interpreted as having a restraint on trade,” Debra Carnes, the bar's chief communications officer, said in an e-mail to Bloomberg BNA.
ethics  regulation  governance 
december 2015 by JordanFurlong
 Legal Services Regulation Update: December 2015
An overhaul of the way in which we regulate the legal profession in Nova Scotia has been at the top of our “to do” list for the last two years. For some time, we referred to this work as “entity regulation” – a label still used by many jurisdictions both nationally and internationally. In Nova Scotia, we now refer to the new model as “legal services regulation” both because “entity regulation” sounds like something from a bad sci-fi movie and because “legal services regulation” more fully describes the scope of the work.
regulation  governance  ethics 
december 2015 by JordanFurlong
Entity regulation - whaaaaat?
Even without the introduction of ABS, the legal profession is dealing with new questions around ethics and what constitutes the practice of law that may be best monitored or aided by entity regulation. Take, for example, the debate around whether e-discovery and document review constitutes legal work. In the case of Deloitte, which acquired e-discovery services provider ADT Legal Services, the Law Society of Upper Canada has found professionals other than lawyers can undertake the work. The law society’s position is that whether document review services constitute legal services depends on the specific nature of the review being done.
regulation  governance  competition  clementi 
october 2015 by JordanFurlong
Law Firms Still Do What Dewey Did, Says Greenberg Traurig CEO | Big Law Business
“You see today, some firms doing the same thing. And maybe you see it more sitting in my shoes,” said Richard Rosenbaum, CEO of Greenberg Traurig. In the first part of our series of videos from our interview with Rosenbaum, Big Law Business presents his uncut thoughts on the Dewey & LeBoeuf trial, and the rumor that Greenberg Traurig was considering a merger with Dewey before the firm’s demise.
firms  governance  ethics  leadership  finances 
october 2015 by JordanFurlong
Law Society of Upper Canada backs away from radical ownership reform - The Globe and Mail
Many of the loudest critics in Ontario were those who practise at personal-injury law firms. Ownership reforms in Australia have allowed for Slater & Gordon Ltd., which became the first law firm to list on a stock exchange in 2007, to become a dominant player in the personal-injury law business in both Australia and Britain. Some fear that reforms that would allow Slaters and other massive firms like it to expand into Ontario would see them snap up many independent smaller law firms and result in what critics called “cookie-cutter law” for personal-injury clients.
clementi  innovation  governance  regulation 
september 2015 by JordanFurlong
N.S. moves forward on ‘entity regulation’
The Nova Scotia Barristers’ Society has released its first report on entity regulation, moving the society further ahead on the road to a new regulatory landscape.

“We have a clear path forward,” said Tilly Pillay, NSBS president in Halifax and chair of the society’s entity regulation steering committee, which identified plans to hire a project manager and develop a detailed budget for the initiative in its inaugural report.

Close to $100,000 has been earmarked for the reform initiative, which dates back to 2006, when the society released a discussion paper on the regulation of law firms (as opposed to lawyers) and established a law firm regulation task force. The group’s work broke new ground in Canada when it led to the Legal Profession Act being am
regulation  governance  ethics 
july 2015 by JordanFurlong
Laying the Foundation: An Information Governance Framework | Legaltech News
Effective information governance involves multiple functions within an organization and requires a top-down, overarching structure that allows for decisions consistent with a group's mission, vision and strategy
it  governance 
june 2015 by JordanFurlong
Bencher elections – the challenge to self-regulations legitimacy – Slaw
Prior to the election of Law Society of Upper Canada benchers on April 30, 2015, the Ontario Trial Lawyers’ Association posted on its website a list of benchers who opposed the introduction of Alternative Business Structures. The website stated: “OTLA urges all association members and other eligible licensed lawyer to vote for the following candidates opposed to ABS” (OTLA Bencher Election Voting Guide). At the time some commentators, including me, were quite critical of the OTLA for this approach (“ABS issue dominating bencher vote”)
regulation  governance  clementi 
may 2015 by JordanFurlong
Professor Stephen Mayson2
1. Introduction
It is now more than ten years since Sir David Clementi issued his final report in
December 2004 on the regulatory framework for legal services in England & Wales3
The report laid the foundations for the Legal Services Act 2007 (even though the Act
went further on alternative business structures than Sir David had been willing to
recommend). Its principal aims can be summarised as:
clementi  regulation  governance 
april 2015 by JordanFurlong
LSB going back to “first principles” as it mulls how to replace Legal Services Act
“We are returning to first principles and asking fundamental questions about: the case for sector-specific regulation of legal services; the definition of ‘legal services’ and consideration of the role and nature of the regulatory objectives; when a customer confronts a legal problem, what needs to be regulated in the public interest before, during and after the event; the extent to which future regulation should be built around reserved activities, individuals, titles or entities, and regulator independence and funding.”
clementi  regulation  governance 
march 2015 by JordanFurlong
Bars May Lose Antitrust Immunity | Socially Awkward
As I’ve harped on before, states have very unclear policies to displace competition in the legal marketplace. The definition of “the practice of law” is incredibly vague, and is often used to exclude non-lawyers from doing activities that remotely smell of being “legal.” This is a wake-up call that this definition needs to be clarified and refined – right now – if the state bars want to preserve antitrust immunity.

As for state bar advertising review committees – such as those employed in Florida and Nevada – I’d say this decision marks the end of them. The Court noted that “active supervision” requires, among other things, that:
regulation  governance  clementi 
march 2015 by JordanFurlong
Justices Find Antitrust Law Valid Against Dental Board -
WASHINGTON — The Supreme Court on Wednesday ruled that a state dental board controlled by dentists may be sued under antitrust laws for driving teeth-whitening services out of business.

The decision, by a 6-to-3 vote, set standards that will most likely also apply to state licensing boards, including those for doctors, lawyers and other professionals. States often rely on such boards to decide which potential competitors may ply their trades.

The case, North Carolina State Board of Dental Examiners v. Federal Trade Commission, No. 13-534, concerned a dental board with eight members, six of whom were required by state law to be practicing dentists and were elected by other dentists. The board also included a dental hygienist, elected by other hygienists, and a consumer appointed by the governor.
regulation  governance  competition  clementi 
march 2015 by JordanFurlong
ABA Antitrust Immunity? Not so fast
I refer of course to the Court’s 6-3 ruling in North Carolina State Board of Dental Examiners v. FTC, finding that the dental examiners’ board attempting to prohibit nondentists from teeth whitening violated the Sherman Antitrust Act. If you think this was some arcane back-page curiosity, read on.
regulation  governance  competition  clementi 
march 2015 by JordanFurlong
When Lawyers Don't Get All the Profits: Non-Lawyer Ownership of Legal Services, Access, and Professionalism by Nick Robinson :: SSRN
This article draws on case studies and quantitative data from the United Kingdom and Australia, where non-lawyer ownership has been allowed, as well as the United States – where parallels to such ownership have emerged in online and administrative law legal services. Based on this evidence, it argues that the benefits of non-lawyer ownership have been oversold with respect to access to civil legal services for poor and moderate-income populations and it identifies serious new professionalism challenges such ownership can create. While some form of non-lawyer ownership is likely to continue to spread, these conclusions cast doubt on the ability of non-lawyer ownership to substantially improve access to legal services, suggesting that alternative access strategies should be prioritized. They also point towards the need to carefully regulate non-lawyer ownership in some contexts.
clementi  governance  regulation 
january 2015 by JordanFurlong
A different take on ABS – Proponents and Opponents both miss the point – Slaw
The arguments for the proponents are said to be that (i) access to outside capital permits economies of scale, infrastructure and specialization, (ii) non-lawyer ownership is an avenue not just to economic capital but also to “high-value employee with different skills sets”, (iii) outside investment allows consumers better information and quality of service by the development of brands which provide consumer information and an incentive to ensure quality and (iv) a business offering multiple types of services can provide services with greater convenience and efficiency.
clementi  governance  regulation 
january 2015 by JordanFurlong
High Court Drills Dental Examiners Board | Supreme Court Brief
In a case that could affect thousands of state licensing boards, the U.S. Supreme Court on Tuesday wrestled with whether a panel that drove nondentists offering teeth-whitening services out of the market violated federal antitrust laws.
regulation  competition  governance 
october 2014 by JordanFurlong
Pending Supreme Court Case Could Put Limits on Integrated Bar’s Ability to Limit NonLawyer Activities | Richard Zorza's Access to Justice Blog
While there are a number of ways that states might be able to avoid the consequences of an affirmance of the 4th Circuit’s decision, such as by having much tighter supervision by the state supreme court of the state bar, or by moving the enforcement process directly into the Court or another “non-market” entity, and while the Supreme Court’s grant of cert might in any event signal a likely reversal, none the less, any decision is likely to put into stark relief the arguably monopolistic consequences of the regulatory system, in a time of great technological and market change.
governance  regulation 
september 2014 by JordanFurlong
Independence and self-regulation: I’m OK but I’m not so sure about you! – Slaw
It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.
ethics  governance 
september 2014 by JordanFurlong
Precarious Professionalism: Some Empirical and Behavioural Perspectives on Lawyers
This article adopts the normative claims of professions and Abbott’s ecological theory of professions to argue that legal professionalism is precarious in four particular ways. Evidence from socio-legal and behavioural studies questions claims to: (1) superior competence; (2) superior ethicality; (3) superior leadership (state-of-the-art-ness); and (4) superior regulatory practice. The article argues that greater reflexive engagement in the problems of professionalism and institutional development of ethicality is required. The evidence on competence does not suggest that where legal professions compete with non-lawyers their competence is superior. Similarly, evidence on ethicality suggests not only that lawyers may not be superior to ‘mere business’ but that elements of the professions ‘client first’ ‘business focused’ model are likely to be detrimental to ethicality. Both behavioural research and case studies of recent ethical problems manifest in large London-based law firms support the view that these detriments have manifested themselves. New providers of legal services are beginning to challenge the claims of elite firms to provide state-of-the-art legal services. Finally, regulatory techniques employed by professions and latterly professional regulators are argued not to have demonstrated their value.
ethics  governance  apprentice 
august 2014 by JordanFurlong
North Carolina Lawyers Oppose Access to the Legal System | eLawyering Blog
The bill was reported out favorably of the Senate Committee on June 24, 2014, and will be voted on by the North Carolina Senate on July 9.  The North Carolina Bar Association is opposing passage of the bill.   The real reason for this opposition is  protecting lawyer’s incomes at the expense of easier access to the legal system for consumers. 
governance  upl  access  regulation 
july 2014 by JordanFurlong
LEGAL FUTURES SRA chief executive outlines “back to basics” approach
He said the SRA had improved its performance “quite radically” on alternative business structure (ABS) licensing, to the point where new ABSs should now be authorised in around four months. However, he said the regulator had not approved as many ABSs as expected and not many MDPs had come through.
clementi  regulation  governance 
may 2014 by JordanFurlong
Missing the mark: SRA Code of Conduct
This will presumably mean several more iterations of the Code of Conduct. We are currently on version 8 and I expect I will see version 15 and more before long. Large numbers of small incremental changes are not helpful. They often pass busy lawyers by unnoticed and increase the cost of regulation with constant small changes to care letters and terms of business. The SRA should make clear that it will only make changes once or twice a year on set dates and they should be bolder on those dates, bringing in the reforms they have merely hinted at. OFR can work and the profession truly needs the scope for new business models it can offer. However, the SRA must embrace properly what they started and create a rule book that focuses on objectives which protect clients and not rules which stifle creativity.
regulation  governance 
may 2014 by JordanFurlong
Lawyer ethics violations in New York are punished too slowly and inconsistently handled, study finds
New York University law professor Stephen Gillers studied lawyer discipline cases dating to 1982 and read 577 court opinions imposing sanctions in the last six years. He found several instances of unacceptable delays and disparity in punishment in courts in different parts of the state, the New York Times reports in an op-ed.
ethics  governance 
april 2014 by JordanFurlong
LEGAL FUTURES From ABS to LSB - BT lawyer appointed to oversight regulator » LEGAL FUTURES
A senior lawyer at telecoms giant BT – which owns an alternative business structure – has become the newest member of the Legal Services Board (LSB).

David Eveleigh, general counsel of BT’s global services division and one of the legal leadership team for the wider BT Group, has been joined on the board by Marina Gibbs, the director of competition policy at Ofcom.
regulation  governance  clementi 
april 2014 by JordanFurlong
One Shared Legal Future, Too Many Solitudes – Slaw
Conway appeared sympathetic to this position but he is a realist. He told the students the cold hard truth: there is very little sympathy for the plight of law students, articling students or LPP students out there in the profession. If anything, Conway understated the harshness of feeling “out there”. The law schools are blamed for much of what ails the legal profession these days, including even the demise of Heenan Blaikie!
regulation  competition  governance 
march 2014 by JordanFurlong
SCOTUS accepts teeth-whitening case; could decision impair state bars' ability to regulate lawyers?
The amicus brief (PDF) filed by the North Carolina State Bar argues that the 4th Circuit decision upholding the FTC’s power could affect state bars’ power to regulate lawyer ethics and the unlicensed practice of law. “Under the 4th Circuit’s decision,” the amicus brief says, "the state bar and its councilors will face antitrust claims asserted by disgruntled lawyers and by nonlawyers whose conduct constitutes the unauthorized practice of law.”
clementi  ethics  governance  competition 
march 2014 by JordanFurlong
LEGAL FUTURES Gulf opens between profession and consumer groups over LSB lay chairs proposal » LEGAL FUTURES
The Legal Services Board’s (LSB) consultation on its plan to oblige frontline regulators to have lay chairs has met a barrage of opposition from regulators and lawyers, pitted against consumer advocates, which strongly backed the measure.
february 2014 by JordanFurlong
But that aside, the fact is that if you believe in independent regulation, and have doubts that the Law Society council or Bar Council could really act in the public interest, rather than their members’ interests, when dealing with regulatory issues, then this report will only fortify you. For the Bar Council and Law Society, it is by contrast extremely unhelpful. But it would appear that the Bar Council has only itself to blame.
regulation  governance  clementi 
december 2013 by JordanFurlong
Quebec paralegals want recognition from barreau
“We’re just asking to recognize that we exist, that we’re a force in Quebec and we’re here to stay,” says the QAP’s Gianni Chiazzese, a securities paralegal with Lavery de Billy in Montreal. “We built up the association in 2011. We felt it was important to have a provincial association because paralegals in Ontario have been regulated by the Law Society of Upper Canada in Ontario, and British Columbia is very well organized and have a full relationship with the law society there. That is exactly what we want.”
paraprofessionals  access  regulation  governance  competition 
november 2013 by JordanFurlong
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