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ISSUE 5 – April 2016
HIGHLIGHTS

Transforming regulation: Will you volunteer for pilot project?

On March 24, 2016, Council approved the 10 elements and descriptors on which the Society’s proposed Management System for Ethical Legal Practice (MSELP) is founded. Council also approved the development of a pilot project to test and further refine the MSELP Self-Assessment Tool. A written project plan for the pilot project will be brought to Council for approval at its May 27 meeting, along with a new policy framework.
 
The Society has already engaged in significant consultation with lawyers and other stakeholders in relation to the MSELP and plans for a self-assessment process. As reported further in this newsletter, the response to this initiative has been very positive.
 
Testing the self-assessment process
In the interests of ongoing engagement on this important component of Council’s strategic direction to transform the regulation of legal services, the pilot project aims to test the Society’s proposed approach for a lawyer and legal entity self-assessment process as a means of helping them achieve an effective MSELP, i.e., the 10 elements. (Learn more about these elements in the April 7 notice on the Society’s website.)
 
Commencing in July 2016, the pilot project will require engagement with 50 volunteer lawyers and firms. The Society intends to roll out the Self-Assessment Tool testing with our volunteer firms primarily during the timeframe from September 2016 through January 2017. Please stay tuned for further details via the Society’s website, InForum and the next Legal Services Regulation Update

Cultural competence and legal services regulation

Society President Jill Perry
The mandate of legal regulators is to regulate in the public interest. We fail to do so if we ignore the cultural competence imperative, which was underscored in the recent report of the Truth and Reconciliation Commission. Its Call to Action #27 specified that cultural competence training for lawyers must be part of redressing the toxic legacy of residential schools in this country. 
Since 2013, the work of the Nova Scotia Barristers’ Society has been guided by two main strategic priorities: 1) transforming regulation and governance in the public interest; and 2) enhancing access to legal services and the justice system for all Nova Scotians. Cultural competence figures prominently in the work we are doing in each of these areas.

The Legal Services Regulation connection
"Legal Services Regulation" is the name for the new model of regulating the profession that we have been developing and refining during province-wide consultation. A key feature of the new model is a move away from prescriptive, reactive rules towards a more principled, preventive approach. As part of this reorientation, we are asking lawyers and law firms to reflect on how they are doing in 10 areas – from conflicts of interest and fees to competence and timely communication. Taken together, these 10 areas are referred to as the "Management System for Ethical Legal Practice."   

Cultural competence is a key part this new model and is directly relevant to at least three of the 10 areas. Element 9 asks lawyers to consider if their legal entity is "committed to improving diversity, inclusion and substantive equality and ensuring freedom from discrimination in the delivery of legal services and the justice system." Element 10 requires reflection on the degree to which your legal entity "encourages public respect for, and tries to improve, the administration of justice and the enhancement of access to legal services." Element 1 looks at delivering legal services with appropriate skill and competence.

The point is not to penalize lawyers for failing to be culturally competent; instead the goal is to encourage lawyers to consider their practices from this perspective and to provide the resources for self-improvement. Cultural competence is a far-reaching goal that demands a lifelong commitment to inclusion and equity.

This is an excerpt from President Jill Perry’s column in the Spring 2016 edition of The Society Record, which will be mailed to lawyers and available online by the end of April.

Toward a consistent reporting regime

Council has approved the creation of a pilot project that will evaluate the self-assessment process being developed for the requirement in the near future that all legal entities have a Management System for Ethical Legal Practice (MSELP). In developing this draft process, through consultation with the profession it became clear that there are in fact two types of reports legal entities should provide:
  • the self-assessment, which will address the MSELP, and
  • an annual report that will address matters such as trust accounts, compliance with Client ID regulations, no large cash transactions and similar matters.
Several of the items that are really ‘compliance’ matters are now addressed in the Annual Lawyer Report. The plan is to simplify that document and to have all compliance-type issues addressed in a single annual report.

Changes will begin this year in the Annual Lawyer Report, to ensure it generally asks only for information that is important and that the individual can provide. The other changes will be developed over the coming months and will be seen later in 2016, most likely with the Annual Trust Account Reporting Process.

Update: Consultation with the legal profession

Darrel Pink, Executive Director 
 
Since November, the Society has engaged in an extensive consultation process with the profession about our legal services regulation work in general and specifically, entity regulation and the Management System for Ethical Legal Practice (MSELP). This allowed the Executive Director, the Officers and members of Council to engage with lawyers and managers from every type of legal practice: sole practitioners; small, medium and large firms; corporate counsel and public sector legal departments.
 
The goal was to be as inclusive and comprehensive in this process as possible. Invitations were extended to all large and medium firms to participate: all large firms did; almost all mid-sized firms did as well. The extent of knowledge about our work was not consistent, so each presentation was tailored to the audience. The Society also sent a followup to all participants inviting further written input, either by direct communication or via the online draft self-assessment tool. Read more for details on the feedback we received ...  

Regulatory Objectives: now with detailed commentary

On March 24, Council approved the following final Regulatory Objectives, which clearly articulate the Society’s purpose, goals and manner of regulation:
  1. Protect those who use legal services.
  2. Promote the rule of law and the public interest in the justice system.
  3. Promote access to legal services and the justice system.
  4. Establish required standards for professional responsibility and competence in the delivery of legal services.
  5. Promote diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system.
  6. Regulate in a manner that is proactive, principled and proportionate.
The draft Regulatory Objectives were approved in principle in November 2014. The final set is now available on the Society’s website, along with detailed commentaries.
 
The concept of Regulatory Objectives for professional regulators began in Europe and Australia, and has been gaining momentum globally in the past two years – the American Bar Association recently adopted its own model Regulatory Objectives. As recently as last week, Colorado also adopted its own regulatory objectives. Here in Nova Scotia, they express the Society’s key priorities in the public interest, and are becoming a key frame of reference for existing and future regulatory programs, while providing greater focus and guidance for the Society’s activities and initiatives.

National and international update

The Society’s work to transform regulation continues to be reflected in other jurisdictions. Council has directed that we maintain both communication with other provincial law societies and as much collaboration as possible.

With that in mind, we continue to work with the three active entity regulation projects in Ontario, British Columbia and the Prairie provinces.
  • In Ontario, the Law Society of Upper Canada expects to provide a report to Benchers in May or June on its Compliance-Based Entity Regulation project. We have been sharing the results of our consultation, especially relating to the work of our Solo and Small Firm Working Group.
  • In British Columbia, consultations are nearly complete with the expectation that a report will be released later this spring by the law society’s Law Firm Regulation Task Force.
  • In the Prairies, in-person consultation processes will begin later in the spring, with reporting likely in late summer or early fall on the Innovating Regulation collaboration.
We also maintain a liaison with several U.S. jurisdictions, as there is considerable interest in Proactive Management-Based Regulation (PMBR). The American Bar Association, the National Organization of Bar Counsel and several upcoming conferences this year (the International Legal Ethics Conference in New York and the International Conference of Legal Regulators in Washington, DC) will devote part of their programs to addressing PMBR in general and our work in Nova Scotia in particular.

LSR in the news

For more news about legal services regulation – in Nova Scotia and elsewhere – see the latest news page in the Legal Services Regulation section of the Society’s website. Also follow our Twitter feed @NSBS.

New reports and resources online

Several significant new reports and resources are available on the Legal Services Regulation section of the website. See the Other resources page for the following recent addition from the American Bar Association:

Innovation Profiles

As a key aspect of our transforming regulation work, the Society fosters an environment that encourages innovation in the legal services sector. For inspiration, we’re profiling organizations that are improving access and creating new ways to bring legal services to their clients – here in Nova Scotia, across Canada and elsewhere.
 
Profile #1: Deloitte Conduit Law LLP
The recent past has seen major international accounting firms gain further footing in the legal services industry through partnering with – or outright acquiring – “NewLaw” firms.
 
Deloitte has been particularly active in legal services: It recently announced a partnership with Kira Systems, a provider of machine learning artificial intelligence to legal service providers; it also acquired ATD Legal Services Professional Corp., a legal process outsourcer.
 
In March 2016, Deloitte acquired Conduit Law. Conduit began as a NewLaw firm that provided outsourced lawyers to support in-house legal teams; Conduit now practises in affiliation with Deloitte LLP. Learn more in Deloitte’s announcement and analysis in the Financial Post by Mitch Kowalski.
 
Profile #2: Highlander Law Group
Highlander Law Group decided to “Do Law Differently” right from the get-go. Launched in early 2016 in Upper Tantallon, the new firm provides upfront and flat fees and offers detailed, itemized billing information to clients.
 
Most notably, Highlander has a referral team of lawyers at other firms, who focus their practices on some of the more specialized areas of law. After meeting with a potential client whose needs would be better served by someone else on the referral team, Highlander will help transfer the file. This works well for clients – and for colleagues in the legal profession, who can meet new clients who might not have ever heard of them otherwise. Learn more about Highlander Law Group at highlanderlaw.ca.
 
Have an idea for a future Innovation Profile – organization or individual? Share your suggestions by emailing communications@nsbs.org. Read more profiles at nsbs.org/innovation-profiles.

Glossary: Self-Assessment Tool

​A practical tool in the form of a questionnaire for a lawyer or legal services provider to determine the appropriateness of their structure, policies and procedures that ensure lawyers comply with their ethical duties and that non-lawyers associated with the entity behave in a manner consistent with the lawyers’ duties. See the Society’s draft Self-Assessment Tool and visit the Glossary of terms for more definitions.

Changing the conversation: Integrating ‘Triple P’ into the complaints process 

The Society is making significant adjustments throughout its operations, in preparation for a new model of legal services regulation in Nova Scotia. The Professional Responsibility department has been introducing Triple-P (principled, proportionate, proactive) concepts into its response to complaints against lawyers where appropriate. Most committees this department supports have also been moving in this direction over the past year. 
 
The Professional Responsibility Policies and Procedures Committee (PRPPC) has been reviewing alternatives to the traditional disciplinary system, including practice assistance programs that are offered in other jurisdictions. The majority of complaints received by the Society relate to competence and quality of service issues that may be better addressed through diversionary processes. It is hoped that the adoption and implementation of such processes will allow complaints to be managed in a manner that works at the root of the problem and results in behavioural changes, in a way that our traditional system does not.  
 
For specific examples of new approaches underway in the complaints process, see the April 8 operational update on the Legal Services Regulation news page of the Society’s website. All of these efforts involve ‘changing the conversation’ with lawyers and the public, and this will be a work in progress. Find other examples in our operational update from February 2016.

New tools for achieving equality, diversity and inclusion in legal services delivery   

Regulatory Objective 5 states that it is a goal of the Society’s legal services regulation to “promote diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system.” The Society has created several new tools to assist legal entities in their efforts to achieve this objective:
  1. Element 9 in the Management System for Ethical Legal Practice
    This new element in the proposed Management System can be found in the draft self-assessment tool on the Society’s website. It provides legal entities with a list of things to think about when assessing their own performance in this area.
  2. The Equity Portal: nsbs.libguides.com/equityportalLegal entities can find tools to help build an equity strategy in their practice in the Society’s Equity Portal. Use it for toolkits, model policies, assessments, articles, cultural competence training resources, a reference library and more.
  3. A new Standard in Equity and Diversity
    The Society is currently seeking input from lawyers (by April 20) on a proposed Equity and Diversity Standard, to be added to the Law Office Management Standards. Introduced to Council on March 24, the Standard is intended to be a succinct articulation of the existing requirements of lawyers and a comprehensive listing of other pertinent information.
See the complete article on the Society’s website to read the proposed Equity and Diversity Standard in its entirety and for more details on the other tools noted here.
 

Update: Legislation and Regulation Working Group

The Legislation and Regulation Working Group (LRWG) is one of the Society’s four Legal Services Regulation Working Groups. It is tasked with reviewing the Legal Profession Act and Regulations, and developing an appropriate legislative and regulatory framework to support the risk-focused, proactive, principled and proportional Legal Services Regulation framework.
 
Since last fall, the LRWG has focused on reviewing and revising the Regulatory Objectives (ROs) and commentary. This document went through several revisions to ensure it reflects the Society’s mandate and supports the regulatory structure for the previously identified regulatory outcomes. 
 
Now that the ROs are completed and approved by Council, the LRWG is working on determining where they fit into the legislative structure and what amendments may be required to support the new regulatory model. This has begun an as-is analysis of the Act and Regulations, with a view to identifying barriers to legal services regulation and/or gaps in the legislation relevant to legal services regulation. This work will evolve into the development of a framework for any legislative amendments that may be required. 
 
The LRWG is supported in its work by the Society’s Australian consultants, Creative Consequences, who are assisting with review and assessment of the following:
  1. the current legislative framework for regulating the delivery of legal services in accordance with the approved Regulatory Objectives;
  2. the current legislative framework for regulating “legal entities”; and
  3. the current legislative framework to accommodate the decision to allow legal services to be delivered by legal entities in combination with other services and be subject to the MSELP.
Received in February 2016, the consultants’ first report provided the LRWG with the foundation to answer some initial policy questions regarding the final “home” for the ROs and whether an entirely new Legal Profession Act is required or whether the current Act can be amended to capture the changes to the manner in which the legal profession will be regulated.  
 
The LRWG is currently considering revisions to Sections 4 (Purpose of the Society) and 16 (definition of the Practice of Law) of the Act. These amendments, once finalized, will provide the groundwork for identification of areas of the Act where changes will be required both to support the new legal services regulation model and for consistency.
 
The LRWG includes David Bartol, Chair, First Vice-President Daren Baxter QC, Marjorie Hickey QC, Genevieve Harvey and Chris Mosher.

Comments? Questions?   

Do you have any comments or questions about the Legal Services Regulation initiative? Would your organization like to schedule a discussion or presentation? See Contact us and Consultations for more info.
 
Please forward this newsletter along to any of your colleagues who would be interested; they can contact communications@nsbs.org to arrange free subscriptions via email. Previous editions are available online. For ongoing updates between editions, bookmark the Legal Services Regulation section of our website and follow @NSBS on Twitter, NSBarristers on Facebook and NS Barristers’ Society on LinkedIn. 
 
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Copyright © 2016 Nova Scotia Barristers' Society, All rights reserved.


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