JordanFurlong + regulation   180

Mayson spells out hard choices in reforming legal regulation - Legal Futures
He restated his belief that professional titles were a “limiting factor in the development of regulation” and said that it “might be sensible” to move away from them, to a future where all ‘lawyers’ were regulated by activity.

However, he said that how far it might be possible to shift away from titles remained an “open question”.

The academic – who is undertaking the review with the support of University College London – said one of the problems with activity-based regulation was how to define the activities and he referred to Scotland’s independent review of legal services regulation, which found that this could actually increase the number of regulators.

“You could end up with more regulators than we have now, each regulating a different activity. It’s still a complex mosaic whichever way you cut the cake.”

The Law Society strongly defended title-based regulation in its response to the Mayson review in March this year and called for the public to be better educated about professional titles.

Professor Mayson said he agreed with the conclusions of the Competition and Market Authority’s study of the legal services market in describing the current framework as unsustainable and saying the justification for some reserved activities was stronger than for others.
regulation  clementi 
june 2019 by JordanFurlong
Lifting the Prohibition on Nonlawyer Ownership: Advantages for Small Firms - Attorney at Work
Increased innovation. Traditional law firms of all sizes fund technology and other capital improvements straight from their pockets. Often, this means legal services will not improve without increasing the cost to buyers — unless lawyers are willing to take serious hits to their bottom lines. Changing the rules means law firms will no longer trail alternative legal services providers, legal tech and in-house legal in creating new legal services combinations that can deliver more value to clients. This opens up myriad partnering possibilities with other disciplines, such as technology, process design, data analytics, accounting, marketing and finance.
More money. With the help of outside investments that create efficiencies and cost-savings, small to midsize firms that represent individual consumers will be able to offer products and services that increase the volume of fee-paying client work — tapping into the pool of potential clients who often forgo legal services due to cost. Similarly, lawyers serving corporations will see more fee-paying work and law firms will be on a more level playing field with ALSPs, which have cut into the traditional corporate legal market.
Better teams. Being able to share profits allows law firms to bring in highly qualified professionals aligned with the firm’s goals. The internal empowerment (read: financial remuneration) in an organization that shares its success creates a better environment for innovation and ultimately improves client services. Also, by paying nonlawyers as shareholders, firms aren’t tied to a costly salary and bonus structure. Instead, firms can reward employees via profits, just as they are, meaning a previously fixed cost can fluctuate with the market.
New business possibilities. Repealing or modifying the rule will provide incentives for nonlegal entrepreneurs to fully enter the legal market. Many see a chance to create more successful outreach programs with allied professionals who can solve problems beyond a client’s immediate legal issues. One example: A small firm partnering with a hospital system might install a booth or satellite office in the lobby to assist patients and their families with the full spectrum of issues relating to health care law (power of attorney, HIPPA, insurance, proxies, wills, malpractice and elder law, to name a few specialties). Legal triage could be performed on the spot, and by nonlawyers.
Elevating the profession’s reputation. Lawyers should be viewed as trusted confidants and advocates who understand their clients, instead of as opportunistic fee-grabbers. Changes that allow lawyers to reach more people and expand access to legal services may help public perception. The profession has a duty to enlarge the pie by driving costs down and also serve the broader needs of society.
regulation  competition 
june 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
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
LSUC to consider changes to contingency fees | Canadian Lawyer Mag
cap on contingency fees is currently off the table for the Law Society of Upper Canada.

The provincial regulator released a number of proposed changes to contingency fee rules Friday morning in an attempt to make the fees more transparent, fair and reasonable, but a cap was not among the recommendations.

The law society’s Advertising and Fee Arrangements Issues working group had been looking at a possible cap on contingency fees, but it decided against it because of concerns it might deny some victims benefits and reduce claims in some cases.
pricing  ethics  regulation  access 
december 2017 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
Encouraging Experiments | Tennessee Bar Association
What can the Tennessee Bar Association do? Several things. We continue to try to educate lawyers about the new tools and opportunities that will permit us to serve clients better, faster and cheaper. Our Evolving Legal Markets Committee, chaired by former President Gail Vaughn Ashworth of Nashville, continues to lead that charge.

As the TBA, we also need to be vigilant for ways in which lawyer regulation needs to and can adapt to the new environment and encourage experimentation in delivery of legal services. Our great Ethics and Professional Responsibility Committee, chaired by Brian Faughnan of Memphis, remains at work in this arena.

Anyway, that’s my shot at provoking your thinking on this question. Call me a heretic, but I submit that we may today have a unique opportunity to encourage and channel the coming wave of change, to improve access to justice and to reexamine and strengthen our core values in a way that will allow them to thrive in the new world of legal services to come. If we’ll grab that opportunity, both personally and as a profession.
innovation  regulation 
december 2017 by JordanFurlong
Law Firms, Regulators Keep Eye on Big Four Move to Legal Services | Big Law Business
The Sarbanes-Oxley accounting and corporate reform law of 2002—and subsequent auditor independence rules—generally bar accounting firms from providing non-audit services to their audit clients, with the exception of restricted tax services.

However, nothing prevents the Big Four from marketing such legal and other non-audit services to non-audit clients, “which they all now aggressively do,” Harvard Law School professor David Wilkins and Maria Esteban Ferrer, both of Harvard’s Center on the Legal Profession, wrote Sept. 26 in the Columbia Law School Blue Sky blog.

The Securities and Exchange Commission declined comment when asked about Big Four firms’ growth in legal services, but the PCAOB, which operates under the aegis of the SEC, is watching developments.

“Existing independence requirements would preclude an issuer’s auditor, or affiliates of the auditor, from providing legal services to that issuer or any of that issuer’s affiliates,” PCAOB spokeswoman Colleen Brennan said. “The PCAOB monitors for compliance with that requirement and other independence requirements.”

The regulatory lines seem to be somewhat blurry in defining what services are allowed, including services for audit clients.

Harvard’s Wilkins said in the ALM Intelligence report that practice in the U.S. “has allowed the Big Four to offer some legally-related services,” such as in tax, regulatory compliance, financial management, and merger due diligence, “even to their core audit clients.”

Linda Griggs, a former partner at global law firm Morgan, Lewis & Bockius LLP, questions whether an accounting and consulting firm such as PwC, in diving deeper into legal services, isn’t further complicating the job of abiding by auditor independence rules.

“I think the monitoring of independence is difficult as it is without their also providing legal services that have to be monitored” for proper separation from any work with audit clients, said Griggs, who once served as counsel to the SEC’s chief accountant.
accountants  regulation  competition  ethics 
october 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
Is Jonathan Molot right about BigLaw firms' capital structure? - Remaking Law Firms
What is to blame for this discontent? This Article suggests that the cause is law firm short-termism. Law firms place too much emphasis on current revenue generation—the annual “profits-per-partner” numbers— and not enough emphasis on building long-term value. At core, it is this short-term outlook that leads law firms to squander valuable opportunities to build long-term loyalty among their clients and lawyers.
The Article further argues that the most promising solution to law firm short-termism is a simple one: change the law firm’s capital structure. Law firms focus exclusively on the short term because the people in charge of law firms are compensated based solely on short-term performance; they do not hold permanent equity interests that would compensate them for creating long-term value.
Law firm partners share in a firm’s profits only for so long as they are employed and generate revenues. Upon retirement, they may receive a declining draw that resembles an employee pension, but their equity interest vanishes. It is no wonder that law firms favor current revenues at the expense of long-term value. Law firms are structured to be nothing more than transitory associations of individuals who happen to practice law under the same roof for a particular period of time.
The Article explores how an alternative capital structure—one with conventional permanent equity—would change lawyer incentives and improve both the economics of law practice and the cultural experience of all of a law firm’s constituencies. The proposed reforms offer the promise of marked improvements for law firm partners, associates, and clients.
equity  firms  business  partners  regulation 
june 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
CMA market study and the pressure for regulatory change | StephenMayson
The Competition & Markets Authority (CMA) published the final report of its market study into legal services in December 2016.  At 285 pages (and a further 233 pages of appendices), it is not a light read!  Nevertheless, it is worthwhile – though for those with less time or stamina, the executive summary on pages 4-19 will give a flavour of the review’s scope, conclusions and recommendations.  It should also be emphasised that the scope of the study was intentionally limited to the experiences of individual consumers and small businesses, and that criminal legal services were excluded.  The study is not therefore a review of the whole legal services sector.
march 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
Diamond & Diamond under fire | Toronto Star
The Law Society of Upper Canada said Friday it is investigating about 90 cases of advertising and referral fee complaints involving lawyers from various firms across Ontario. It did not identify the lawyers involved, but said some lawyers face multiple complaints. The society also has a working group examining the broader issues. Diamond’s firm has said the current system, which allows referral fees, “increases the likelihood that everyone that has a viable case will be able to find a qualified legal representative.”
ethics  regulation  referrals 
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
Pilot project update: Management System Self-Assessment Tool | Nova Scotia Barristers' Society
“We think this tool has the potential to really make a change in the way legal services are delivered in the province,” says Jennifer Pink, Legal Services Support Officer. “We’re encouraging lawyers to reflect on the systems in their practice that support delivery of an ethically sound and competent quality of service for their clients, and to give full consideration to where improvement is needed.”

A random sample of 50 firms and sole practitioners across the province will test the self-assessment tool and related resources, and provide feedback in followup meetings with Society staff.

“We want to know that the tool is user friendly and offers real value to lawyers in providing what they need to enhance their ethical infrastructure,” says Pink. “It reflects our understanding that lawyers are best placed to identify the needs of their clients and, in turn, their practice – and our role is to support them in building a robust management system that meets those needs.”
regulation  ethics 
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
Testing the Application of Old Laws on New Technology | Stratfor
Some would argue that patents, which can be used to lock down technological breakthroughs, can limit cooperation, causing innovation to stagnate. A trend has developed in recent years in which developers open access to their designs to promote innovation and the further development of technology. For instance, Tesla Motors allows a number of its patents to be used in good faith without cost, Toyota Motor Corp. has opened thousands of patents on fuel cells and related technology to fee-free use, and some software development in general has moved away from patents and toward a model of open-source collaboration. By doing so, proponents argue, transparent competition and collaboration will promote development more than the current system of patent protection allows. In areas such as additive manufacturing, where software and design elements can prove to be as vital as hardware developments, the potential for lawsuits surrounding intellectual property is vast. But a movement toward open-source software projects, where computer code is available for anyone to modify or improve, has the potential to change how that industry works. The movement argues that the elimination of intellectual property barriers creates transparency and promotes rapid prototyping, increasing the speed of development. With the true value of different types of patents open for debate, this strategy could be more broadly applied in the future.
ip  regulation  ethics 
october 2016 by JordanFurlong
Legal Malpractice Claims Settling Faster, ABA Study Suggests |
In its latest quadrennial report, the American Bar Association’s Standing Committee on Lawyers’ Professional Liability tracked malpractice claim trends from 2012 through 2015, looking at the area of law, size of firm and amount of payments, relying on reports from multiple malpractice insurers.

The study looked at the amount of expenses in malpractice claims, such as legal fees and other costs to defend such suits, and indemnification costs, such as settlements or court judgments.

According to the study’s report, the number of claims with combined expense and indemnity settlements between $50,000 to $200,000 nearly doubled between 2011 and 2015, from 4,717 such claims in 2011 to 8,670 such claims in 2015.

The total number of claims between $1 million to $2 million rose even more dramatically, from 49 in 2011 to 444 in 2015.

And claims resolved with indemnity payments of more than $2 million rose from 21 in 2011 to 76 in 2015, with 25 claims resolving over $5 million.

Meanwhile, the number of claims in which zero dollars in expenses or indemnity was paid dropped precipitously, the report said. In 2011, almost 60 percent of all claims were resolved for no expense or indemnity payment. In 2015, only 43 percent of all claims saw no payout, the report said.
malpractice  litigation  regulation 
october 2016 by JordanFurlong
Stupid Bar Decisions on Fee Splitting Don't Just Kill Avvo, But The Entire Future of #AltLaw - My Shingle
The Pennsylvania opinion isn’t on line yet. Apparently, it relies on the South Carolina and Ohio opinions which display some of the sorriest legal reasoning that I’ve seen since the Minnesota opinion that reprimanded a Colorado attorney for unauthorized practice of law when he wrote a couple of emails to a creditor in Minnesota an effort to help his in-laws try to negotiate a judgement.  The Ohio opinion attempts to analogize the Avvo scenario to other fee-splitting arrangements previously deemed unethical – such as a company that offered “foreclosure defense services” that included a re-negotiation of the homeowner’s mortgage and legal services for a defense in court, or bankruptcy and debt-counseling companies that solicited clients (presumably circumventing ethics rules on direct solicitation) on behalf of attorneys to whom the company referred the cases. However, those scenarios are markedly different from the Avvo situation in that (1) they involved an active partnership between the lawyers and the non-lawyer provider and (2) they potentially create confusion for the client who may not be able to determine if the lawyer is responsible for the case, or the non-lawyer firm that was the first point of contact. By contrast, Avvo plays a passive role, simply acting as a fund collector. Moreover, Avvo does not go out and actively pursue cases like debt collection services (which call or send mailings to clients); instead clients come to Avvo in search of a lawyer.
ethics  regulation  fee-splitting 
october 2016 by JordanFurlong
Regulate this – Slaw
Most people today are employees who drive cars and get married. Most people today deal with law only when they are fired, ticketed, or divorced. (It’s nice that the vast majority of people never interact with the criminal justice system.) So most access-to-justice issues have to do with employment, personal injury/traffic, and family law. This is because these are the main three areas of social complexity and government regulation in most people’s lives. When there is no complexity or regulation, there are few access-to-justice issues because there is no need for lawyers.
regulation  robolawyer 
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
Fee Splitting is Mostly About Protecting Lawyers, Not Clients
Confidentiality is a different issue, however. Non-lawyers aren’t covered by the ethics rules or any other guidance on this topic. A non-lawyer partner could presumably violate client confidentiality with impunity, if we presume menace, or simply by a lack of understanding of the obligations. So how do we solve that problem?

It’s relatively simple. Rewrite the ethics rules to allow fee-splitting between lawyers and non-lawyers, but bring those non-lawyers within the scope of the applicable ethics rules, including confidentiality and conflicts of interest. In other words, if you want to split fees with a lawyer, you’ve got to follow the rules.
ethics  regulation  referrals 
august 2016 by JordanFurlong
This Week In Legal Tech: LegalZoom Co-Founder On ABA’s ‘Toothless’ Future Of Legal Services Report | Above the Law
But when it comes to things the ABA can actually influence, for their members, the resolutions are purely toothless, like this gem: “Courts should examine, and if they deem appropriate and beneficial to providing greater access to competent legal services, adopt rules and procedures for judicially-authorized-and-regulated legal services providers.” (Resolution 2.2)
associations  regulation  innovation  access 
august 2016 by JordanFurlong
Responsive Law - Disappointing ABA Commission Identifies What’s Wrong With Regulation of Lawyers But Fails to Act
The obvious conclusion from these premises is that the ABA should act to remove the barriers that prevent innovative service providers from helping the public. However, the Commission failed to do so.

Where the commission could have made strong recommendation that the ABA remove regulatory barriers, it instead bowed to bar pressure and made a series of milquetoast pronouncements urging further study and consideration.

Rather than saying, “Lawyer-regulators, tear down these walls!” the Commission has engaged in a policy of appeasement toward the ABA, leaving consumers to face the profession’s continued indifference toward their exclusion from the legal system.
associations  regulation  innovation  access 
august 2016 by JordanFurlong
The ABA'S Terrible, Horrible, No Good, Very Bad Day | The American Lawyer
During the NACIQI's discussion on the motion to recommend renewal of the ABA's accreditation power, one member put the problem bluntly:
"I am troubled that the ABA just simply isn't independent enough for this responsibility … I find it very difficult to think that they are going to be objective enough to continue to carry out this responsibility. And I reluctantly conclude that the ABA is not the appropriate accreditor for our law schools. … The crushing debt load on thousands and thousands of students is too serious for us … and I think the debt load is not going to get better if we say yes to this motion."
Another member added: "I think that objectivity is important as you go through this process, so I would think an independent body that does not have the conflict of interest that the ABA has."
schools  regulation  associations 
august 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
Online interactive legal documents would be legal in North Carolina under bill passed by legislature
House Bill 436 (PDF) won unanimous approval last week, ending a long-running dispute with LegalZoom, WRAL reports. The bill was forwarded to Gov. Pat McCrory on Tuesday, according to the legislature’s website.

The bill says the practice of law does not include websites offering interactive software that generates a legal document based on the consumer’s answers to legal questions. The bill adds several restrictions, including these:

• The website provider may not disclaim any warranties or liability, and may not limit the recovery of damages or other remedies by the consumer.

• A licensed North Carolina lawyer must review the blank document.

• The provider must communicate that the documents are not a substitute for the services of a licensed lawyer.

• The consumer must be given a chance to review the document before finalizing the purchase.

The North Carolina State Bar had agreed to support the legislation in October when it settled an antitrust suit filed by LegalZoom.
regulation  innovation  competition  access 
june 2016 by JordanFurlong
Unbundling Legal Services Could Open the Door to Innovation
Many clients already fail to receive adequate legal services despite licensing requirements. According to Winston and Karpilow, part of the problem is that state bar associations focus on prosecuting unauthorized practice of law rather than incompetent practice of law—even when the latter holds a more tangible potential to harm clients.
upl  competence  access  regulation 
june 2016 by JordanFurlong
Stanford Hosts the Legal Industry’s Bernie Sanders | Big Law Business
Citing statistics that the majority of Americans cannot find or afford a lawyer in civil matters, Sandman laid out what he viewed as some of the impediments to change and also some of the levers for change that could improve access to justice.


Insufficient capital can repress innovation. Examples: There are prohibitions against “non-lawyer” ownership of law firms. The Big Law partnership model focuses on profits-per-partner, tech expenditures can reduce their pay.
Pricing models do not reward efficiency—and actually penalizes efficiency. Alternative fee arrangements are usually just discounts to billable hours (still the dominant model).
Law firm structure where power is dispersed among partners. “It is considered bad manners for a leader to take control and tell people how things will be done.” said Sandman. Partners have great discretion on how they work.
Malpractice insurance creates an environment that discourages new processes. Rates are based on the past actions — if you change you may get pushback.
Legal education hasn’t changed. With a few exceptions, law schools  provide no grounding in management, efficiency, client service or user focus.
Lawyerly judgement. Lawyers are encouraged to see that every case is unique, and thus resist commodity approaches and technology tools.
Who becomes lawyers?  Risk adverse people who didn’t want to go to business school.
Sandman also said there are “levers of power and agents of change out there that we can enlist to accelerate the pace of change. Most are not lawyers—we need to go around the lawyers—and in some instances, over their head— to engage people to compel them to do what they would not do on their own, left to their own devises.”
access  it  regulation  innovation  firms 
june 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
House of Delegates OKs objectives to regulate nontraditional providers
Resolution 105 provides model objectives for state regulators considering how to supervise nontraditional legal service providers. These providers include online startup businesses and corporations, but also practitioners like the limited-license legal technicians recently authorized in Washington state. And the heart of the debate was over whether, by adopting the resolution, the House was endorsing the practice of law by nonlawyers.
regulation  competition 
march 2016 by JordanFurlong
SRA announces rethink on training reforms - Legal Futures
“We will pause and consider all the consultation responses, to make sure people feel they’ve been heard,” Mr Philip said. “There may be a slight hiatus while we do that.

“We feel it is right to make clear that workplace assessment will continue to be part of the model. High professional standards are what we’re all about.”

Mr Philip stressed that the assessment of candidates’ skills by the SQE would be “at least at degree level”, and the SRA would consult again on its plans later in the year.

“The solicitor’s brand is really important. It’s the number one brand in the High Street for consumers and we would like to keep it that away.”

Many of the strongest critics of the reforms were law schools, and Mr Philip said it was important to “re-engage with educationalists” and ensure they were as content as possible.

Speaking to journalists afterwards, Mr Philip said the regulator might decide to keep the existing minimum period of workplace training at two years, but the issue would be determined by the SRA board.
regulation  training  admission 
march 2016 by JordanFurlong
Perspective: The Opposition to ABA Law Connect Was About Lawyer Protectionism, Not Public Good | Big Law Business
The Pennsylvania and Illinois Bar Presidents cited the “blue plate special mentality” (their characterization, not mine) as one reason to nuke the program. They decried the $4.95 initial consulting fee. It happens that the ABA Law Connect consult charge was priced substantially lower than state bar-sponsored lawyer referral programs in those states. And such programs are key revenue generators that keep the bar going. And let’s not forget that Illinois and Pennsylvania — like several other “voluntary membership” Bar groups — cater to lawyers because if they don’t, they are out of business. The circularity helps to draw and explain the battle lines.

Bottom line: it’s about lawyer protectionism, not public good.

And that’s just for openers. Pennsylvania Bar President William Pugh was quoted opposing the initiative because “It just flies in the face of what the ABA should be — promoting bread and butter mainstream lawyers across the country.” (The American Lawyer).
regulation  competition 
march 2016 by JordanFurlong
LSB: Regulators need to get tough with lawyers over poor complaints handling - Legal Futures
The Legal Services Board (LSB) is set to instruct the frontline regulators like the Solicitors Regulation Authority and Bar Standards Board to get tough with lawyers who do not handle client complaints properly.

Draft guidance published for consultation yesterday said that they could stage “supervisory interventions” to improve a firm or individual lawyer’s complaints-handling procedures.

Back in 2010 the LSB set out what it expected regulators to do about first-tier complaints (that is, complaints dealt with at firm/individual level) and is now reviewing this.
regulation  governnance 
march 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
Becoming an LLLT – Part 1 | Socially Awkward
The LLLT program is innovative: Washington is the first state with such a unique program in place, allowing non-lawyers (under the auspices of the State Bar) to provide certain types of legal services. I want to thank Avvo for supporting me in this endeavor – I know the company is a big fan of anything that helps consumers get greater access to legal help, and views the LLLT program as a huge step forward.
paraprofessionals  competition  regulation 
march 2016 by JordanFurlong
The ABA Facilitates the Modernization of Legal Service — Ralph Baxter
The American Bar Association(ABA) took profoundly important action last week at its ABA Midyear Meeting in San Diego by adopting a conceptual framework for state regulation of legal service. The framework was expressed as a set of “Model Regulatory Objectives for the Provision of Legal Service,” denominated ABA Resolution 105.
regulation  clementi  competition 
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
Newsroom : Province Seeking Feedback To Make Family Legal Services More Accessible
Family law includes divorce and separation, child custody and access, and child support. Currently, only lawyers are permitted to provide legal services in family law cases and this can lead to litigants choosing to represent themselves. In 2014-15, over 57 per cent of Ontarians did not have legal representation in family court.

As part of Ontario's work to improve access to justice for families, the Honourable Justice Annemarie E. Bonkalo will lead a review to consider whether a broader range of legal services providers, such as paralegals, law clerks and students, should be allowed to handle certain family law matters. Justice Bonkalo will also ask for input on what types of legal services, if handled by a broader range of legal service providers, could improve the family law system and how alternative service providers could be held accountable.

The public is invited to provide comments on the consultation document by April 30, 2016.
family  access  competition  innovation  regulation 
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
Temperature rises as Law Society and SRA row over regulator's independence - Legal Futures
An extraordinary war of words between the Law Society and Solicitors Regulation Authority (SRA) stepped up yesterday after the regulator was accused of “seemingly seeking to undermine” Chancery Lane.

Wading back into the debate over whether the regulator should be completely independent, a Law Society spokesman said comments by the SRA’s leadership this week were “perhaps… an indication of the lack of value our regulator places on our profession”.
january 2016 by JordanFurlong
The Impact of White Teeth on Legal Tech
Last June, LegalZoom even sued the North Carolina bar over whether its business really constitutes unauthorized legal services. As part of the settlement, the two are now working together, with the NC bar signing off on LegalZoom’s template and the NC bar supporting a redefinition of UPL.

Legal Ethics Free-For-All

Fearing legal entanglement, the Washington State Bar Association told its Ethics Commission to stop issuing any opinions that could be considered a “restraint on trade” as of December 2015—effectively gutting much of the committee’s authority to do just about anything. The bar is currently reviewing the committee’s work, but has not indicated how long the committee’s authority will remain in check.

State definitions of UPL remain few and far between. In light of an over trend towards acceptance of legal technology services such as LegalZoom, these definitions have no choice but to evolve. What legal technology companies also have yet to be set in stone, especially when it comes to more hard-core legal services like court proceedings. As technology continues to evolve and new services emerge, however, these issues may need to be addressed.
upl  regulation  robolawyer  it  competition 
january 2016 by JordanFurlong
Quinn Emanuel Wins Overtime Challenge for Document Review | New York Law Journal
William Henig sought overtime pay from Quinn Emanuel Urquhart & Sullivan under the Fair Labor Standards Act, saying he did no more than review 13,000 documents for whether they were, or were not, responsive to a discovery request.
temp  process  regulation 
january 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 Board mulls extending reach into unregulated market
The Legal Services Board (LSB) has begun work on whether it could and should introduce a voluntary regulation scheme for currently unregulated legal services providers.

As part of a wider package of work on unregulated providers, it is also to investigate in depth their role in the will writing and estate administration, family law, and intellectual property markets.
december 2015 by JordanFurlong
The Legal Whiteboard
"There are bigger issues - alternative legal providers, the changing demands of what our people want in terms of non-lineal career paths, the cost pressures on our clients and the demands they place on their lawyers," Baker & McKenzie national managing partner Chris Freeland said.

"That's what keeps me awake at night," he said.

Behind closed doors, however, [the law firms] are genuinely worried about the accounting firms cutting into compliance, due diligence, employment and taxation work, and mergers and acquisitions advisory particularly in infrastructure and inbound investment.

Large law firms identified the accountants as their main rivals in a recent Macquarie Group legal benchmarking survey.

Some law firms are quietly shifting work to boutique accounting firms because they refuse to be in bed with their emerging adversaries.

The Australian legal market liberalized several years, making it possible for nonlawyers to own and control legal enterprises.  In contrast, India has rules that are much closer to the U.S.  Yet, when it comes to the accounting firms, the official rules don't seem to matter much, as the competitive dynamics vis-a-vis big accounting firms in these two countries are very similar.  

A simple explanation is that bar authorities in any country are loath to pursue unauthorized practice of law actions when the clients are multinational corporations and the providers are large accounting firms.  That is too big a fight.  Further, the rules on unauthorized practice are in place to protect clients, not the guild.  Thus, it is not surprising that the accounting firms are getting bolder.
accountants  upl  regulation  competition 
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
CBA AB - ABS & the Regulatory Dilemma
It may be that avoiding undue regulatory risk is rational.  It’s hard to argue in favour of pursuing uncertain risks while incurring certain costs.  And the Working Group is certainly right that undoing bad regulatory change is impossible (I’d look at electricity deregulation in Alberta as an example; others would have different perspectives and their own examples).  But it may also be that being unwilling to explore real change ensures our mutual destruction.  The way forward is unclear.
clementi  regulation 
november 2015 by JordanFurlong
LegalZoom Fought the North Carolina Bar — And LegalZoom Won | Big Law Business
It is still unclear how that case might apply to State Bar regulators, but LegalZoom thought it opened the door for a $10.5 million antitrust suit. This was a significant upping of the ante by LegalZoom, and the North Carolina Bar suddenly had to decide whether it was willing to go to the mattresses with LegalZoom in a true “loser leaves town” battle: if LegalZoom prevailed on its antitrust suit the Bar might, as a practical matter, lose some or all of its regulatory power. The timing of the settlement (just four months after LegalZoom filed the antitrust suit) speaks volumes about how seriously the State Bar took this threat.
upl  regulation  competition  access 
november 2015 by JordanFurlong
Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters
Nonlawyers and the Unauthorized Practice of Law:
An Overview of the Legal and Ethical Parameters
upl  competition  regulation  ethics 
november 2015 by JordanFurlong
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