Category Archives: Stories

France, Stories

Kami Haeri, Partner, August Debouzy

If you gather five interns in your office, you will see immediately which ones have been encouraged and loved. You will see immediately which ones had a father or a mother or an uncle who said to them “you know what — you’re 13 years old — you should read this, you should read that. And you can do it.”

Kami Haeri is one of four authors of “L’Avenir de la profession d’avocat” (The Future of the Legal Profession), a report submitted to the French Minister of Justice in February, 2017.

The structure and the representation of our profession raise governance issues. We have three governing bodies, the CNB (Conférence National des Barreaux), the Conférence des Batonniers and the Barreau de Paris. The Paris bar is by far the largest of the French bars, and also by far the richest. In our highly centralized county, the Paris bar has the most direct exposure to the French public authorities. The CNB is the general assembly representing the overall community of French lawyers and is meant to represent all of them, nationwide, via its 82 members. The Conférence des Batonniers represents all of the bars in France, except Paris: that’s 160 (again, excluding Paris) super diverse bars. When there are new ideas to develop and new issues to debate, the fact that we have these three bodies to be consulted raises a huge structural problem of representation. I state this not as a reproach, but as something I regret.

We see this problem manifested in our professional bar schools, for example. The vast majority of the students who are admitted to an Ecole d’avocat know that they will just have to suffer through an 18-month program that does not convey the energy and practical education that they expect in anticipation of their future job. All they do is hold their breath and wait for it to finish. Why aren’t we, as a profession, able to create an attractive forum for education?

The answer is that we don’t always have the information and governance that we need for the profession to move forward: to conduct a qualitative or quantitative approach or analysis of us as a profession, to understand who we are and where we are going, who joins us, and why. In this context, I think it makes sense that the Minister might have asked someone outside of the representative bodies to do the work that we (the Haeri Commission) did.

I met the Minister of Justice for the first time in July, 2016, when I attended a dinner that he organized (something he does from time to time). I did not know him and I don’t know for sure why he invited me to that particular dinner, but it might have been linked to the work I did in 2013 on the quality of new lawyers and access to the profession. (In that report, I deplored that it is our universities and not us, lawyers, who decide who joins our profession).

I’m not a big fan of small talk, and certainly I wasn’t going to waste my time with the Minister of Justice on small talk. So I immediately spoke with him about the image of our profession that new lawyers have, and that we as lawyers have of ourselves. I spoke about how we are blinded by the legend of our profession, and how the storytelling around us keeps us from thinking about our profession with more creativity and curiosity.

I teach in a variety of contexts and for that reason I have spent a lot of time with law students. With that experience, I could speak with confidence to the Minister about how worried today’s law students and new lawyers are. We spoke for two hours — it was an amazing moment. The Minister expressed a genuine interest in our discussion.

To be honest, I don’t think I know or understand these matters any better or worse than anyone else does. I do feel that technology is changing our market, as is globalization – we have not integrated the changes of the outside world into our profession, or into our thinking. And young lawyers are right to be worried, and they are right to demand that we address this.

So, he asked me, what are your ideas? I responded that we need to re-think our approach to legal education. We need to be more focused on how we, as a community, can be more structured and innovative and how we can better train young lawyers. (I also believe that we need to re-think our institutions, but that was not the focus of my conversation with the Minister and it is not the focus of the Report. In the Report, we seek to make what we hope are useful suggestions. If our institutions agree, then they will use them and if not, they won’t). It was a very cordial and very pleasant dinner.

A week or two later, I received a call from the Minister’s office asking me if I would be interested in going further — in doing research and preparing a report. Of course I responded that I would be honored. So I was invited to the Minister’s offices, where I met with Professor Pierre Berlioz, who is a law professor and also the person responsible in the Ministry of Justice for France’s variety of legal professions. We agreed upon format and methodology. We agreed that the approach needed to be balanced and that it was important to include all kinds of lawyers in the work (Paris/province, solo practice/larger firm, litigation/transactional, men/women). I was honored to gather a team composed of Sophie Challan-Belval (a sole practitioner in Rouen), Eleonore Hannezo (an associate at Linklaters, Paris) and Bernard Lamon (the founder of an IT dedicated boutique in Rennes). It was important to keep the number of people on the Commission small as a large one would be too difficult to manage, and certainly impossible to manage quickly. And, given the upcoming elections, we agreed that the work needed to be done very quickly. We ended up doing the work in just over three months.

Regarding our methodology: Of course it was important that we speak with elected representatives of the bar institutions and as well as with representatives of the lawyer unions, and we did speak with them. However, we felt it was equally important that we speak with people who are not representatives of either — who are not elected and do not have a public duty of any kind — and that we spoke with them first. Also, we felt that it was important that the four of us on the Commission work together as much as possible, and that the result be a mutual product of the four of us. We didn’t want to split up the work as “this is Eléonore’s part, this is Bernard’s part, this is Sophie’s part,…” with the result being a mere agglomeration.

Officially we spoke with 130 persons but unofficially we spoke with about 160. The reason that not all of their names appear at the end of the report is partly by mistake but mostly because some did not want their names to appear. They wanted to be able to speak freely about their institutions. Further, you’ll note that we did not quote anyone in our Report.

We did a small experiment with the online collection of opinions. While we did receive interesting input in that manner, we quickly decided not to place any emphasis on it as a method for collecting input. This is because, we discovered, if we conducted an online information gathering process, we would also have to hold an online debate regarding our work, and we did not want to do that. Instead, we wanted to be able to completely focus on our analysis and deliver a finished work. In our opinion, if you launch a live debate, you cannot work on the report at the same time. It was either-or. This was especially the case since we had so little time.

The first steps — the first weeks — of our work were devoted to learning as much as we could about society at large, about how clients and people in general live, work, consume. What do they need today? What is their relationship to institutions? To mobility? What is their relationship to work, and how it is structured? With this analysis, we can understand where we are going as a society, which should permit us, as a profession, to realign our own projection to match society’s.

We spent those first weeks on the one hand reading as much as we could, and, on the other hand, speaking with as many people as we could who were experts in those areas. We also spoke with experts in diversity and gender parity. We spoke with clients of legal services, and union members. And we spoke with people who used to be lawyers but have left the profession. It was only after those discussions that finally we spoke with members of the profession. In other words, we tried to have an outside-in approach, where we looked at what is happening outside our profession before we looked in detail at what is happening inside.

We did not speak with elected representatives of bar institutions or of lawyer unions until the very end. This was not because we didn’t want to speak with them or because we didn’t think that what they had to say was not important — we did and it was. But their conversations are the most structured. We wanted our discussions with them to be useful. So we wanted to absorb a lot of information before, and we wanted to be able to challenge them if necessary with what we had learned.

And we learned amazing things. About how people approach work, about why certain generations think and work certain ways, about how loyal we are to our legal community, … We would very much have liked to speak to many more people, and especially to more people outside the legal profession, but the four of us are all practicing attorneys with heavy workloads, and we just didn’t have time. In the end, we focused on what we thought was the most urgent. We wanted to wake up our collective conscious on what we are as a profession, and on the huge gap in salaries between men and women.

Much of the information we present in the report, and notably the statistics regarding the profession, is not new — it’s been in the public domain for quite some time. By including it in our report, in a consolidated format, it is our hope that it will finally get the attention it needs and deserves. We hope that the fact the report was prepared by persons who are not connected to any of our bar institutions will mean the report carries additional credibility. Further, we say things in the Report that you wouldn’t read in any official document issued by our bar institutions, and we do so in a tone they would not use. It is our hope that this also adds to the Report’s credibility.

Over 200 years ago we had a Revolution in France. Yet here we are, still with a highly centralized system, still with our love for strong leaders. We despise weak leaders. We cut off the head of our king, yet just a decade later we crowned an emperor. Social change is hard for us in France. Our profession could be so much more innovative than it is.

In the end, we hope that we have created a momentum, first for discussion and then for change. Will this in fact happen? I don’t know.

We didn’t prepare the Report for people who as a general matter don’t pay attention to issues it raises. We didn’t prepare the Report for people who don’t appreciate the fact that we were entrusted with this mission. And make no mistake, there are those who don’t appreciate it — they have said: “Who are you? You are not from any of our institutions and your appointment is an insult to our institutions. Who are you to open debates, and to re-open debates that have been closed?” My response is: are there only specific, designated groups who are entitled to debate? To decide what is open for debate? The world doesn’t work this way, and I am glad that people from outside our institutions open these debates.

We lack dialogue among law students, young lawyers, and older, established lawyers. This causes us to miss many things, and to fail to develop an understanding of how the profession needs to develop. How do you think it makes us look when creators of legal start-ups go to conferences and explain how our institutions sued them to keep them from operating, but lost?

I believe in appearances. And I also believe we should take ideas from innovative sectors. Take their working spaces, for example. They like to work in open spaces to encourage the free-flow of ideas. I believe that if we as lawyers set up our working spaces in a more creative way, we would create the appearance of creation, and our thinking and our work product would also be more creative. Same for education. If we change our methods, if we change our spaces for education, it will automatically change the content. Immediately.

I believe in equality of opportunity. In this context, I have had the chance to observe the many interns we have had in our offices at August Debouzy. From the moment they walk in the door, I see major inequalities among them. Learning substantive law can be tough, but it’s not the toughest thing we have to face in our profession. After all, we often face challenges bringing us to learn or update our knowledge on in areas in which we’ve had little to no training. And when a law changes, it can force us to develop a completely new understanding. That happens every day. Our substantive knowledge becomes outdated every day. And someone who has better substantive knowledge than us comes along every day. That’s not where the problem of equality of opportunity lies.

If you gather five interns in your office, you will see immediately which ones have been encouraged and loved. You will see immediately which ones had a father or a mother or an uncle who said to them “you know what — you’re 13 years old — you should read this, you should read that. And you can do it.” (I don’t know what, say To Kill a Mockingbird or Camus’s L’Etranger, whatever). The fact that someone has done this for some of our new lawyers but not for other creates a massive gap in equality. Because the new lawyers who have had a father or a mother or an uncle like this are the new lawyers that have confidence in themselves. They have the real skill, which is to know how to speak, how to behave, how to convey confidence.

I believe that with legal education we can provide balance — we can and we must help the less fortunate students and young lawyers to develop the soft skills they need to succeed in our profession. We can help them to develop confidence in themselves. We are proposing a continuing legal education program for new lawyers — for their first six years or so after law school. In this program, each year they will be invited (not required) to learn a new soft skill.

Let’s put it in this context: We know that after about five or six years of practicing law, most lawyers reach a pivotal point in their careers when they must take full stock of their opportunities and make decisions about how they want the rest of their career to progress: do they want to go in-house, do they want to be on a partnership track, etc. Now let’s step back, to when such a lawyer was a law student: Law students are inundated with classes, programs, information — a lot of things are put in their brain. But once they are sworn into the bar, they are abandoned. They are completely abandoned. And so what happens? Those who have a father, an uncle, a friend in the profession — they are helped by wise people who can guide them to make the right decisions, as well as guide them through the many other challenges they encounter in their career. On the other hand, those who are alone, they will learn, sometimes by making mistakes, by banging their heads against a wall and thus being forced to change direction until they finally find a path, if indeed they do find a path. Those are the people I want to help. Those are the people I think can be helped by the CLE program we are proposing.

Our bar institutions do a fair amount of research and collect certain statistics with respect to the legal profession. To be sure, there are many skilled and dedicated people doing good work in this regard. However, I would fault their work in two ways. Firstly, there is little planning and strategy to it — their work seems to go off in all directions without any thought as to how it does or should fit together. Further, most of their work is retrospective; very little is prospective. That is, very little looks ahead to the future. Further, we should have a research body that is only dedicated to numbers and statistics. Especially we need statistics in order to understand bias, and notably gender bias. Without statistics, we cannot show how we have failed with respect to diversity and gender parity.

In the Report, we deliberately did not address the problems of our bar institutions. This is not because we don’t think that they have problems — of course they do. We just didn’t see any point in addressing them in the Report because it wouldn’t have changed anything. Those who govern our institutions know the institutions have problems and that they suffer from them. They have not been able to fix those problems, and there is nothing our Report could do that would make them more able to fix them. It takes a huge amount of courage to give up some of your sovereignty, even when you know it’s for the greater good. It is unlikely that our bar institutions will change without some kind of powerful force from the outside.

Another problem we have as a profession is in working with the other regulated professions. We see each other in meetings, and we say nice things to each other, like “we should work together,” and then nothing happens. We need to create spaces and platforms that bring the different regulated professions together, that facilitate their work together. In my opinion, interprofessionality is the future. It’s the addition of intelligences. We are far too inward-looking. We have so far to go. There was so much controversy around the Macron Law. So many debates that afterwards we’re now all exhausted. And for what? All the Law does is allow us to create platforms for different professions to work together. I can’t understand the resistance to this.

Look at what happened with AGN Avocats. This is a law firm that has set up their offices to look like shops, where anyone can walk in without an appointment. They were able to raise funds in the way a start-up would, but in order to stay within the rules, only members of the bar were allowed to invest. Our bar institutions were opposed to AGN, and they sued them, but lost. And for what? What is wrong with making it easier for people to see a lawyer? We should have law firms in malls, so that people who feel lawyers are inaccessible can access them.

It was only relatively recently that lawyers were allowed to join together in firms. For a long time, law was seen as strictly an individual endeavor. Lawyers that still practice alone today see our new structures and cannot recognize the bar or themselves.

Stories

The Story Behind the Stories

The stories on this website are the work-product of oral interviews I conducted between March 2014 and June 2016.

The principal way that I identified candidates to tell their stories was to scour the website Legal Futures.[1] This website is a treasure trove of information especially (but by no means only) with respect to alternative structures in England and Wales. In particular, this is the go-to website for information about newly licensed ABSs — in searching the archives as well as the current pages of this site, it was possible for me to identify not only the ABSs that merited attention, but also the best person with those ABSs for me to contact for an interview. Once I identified a candidate, my next step was to search for that person’s contact information. In most cases a simple and quick Google search sufficed to produce an email address, but in a few cases lengthier and more in-depth Google sleuthing was required.

The other way I was able to identify as well as access candidates was through personal introductions. In this context, I am indebted to a number of persons for making those introductions, and most notably to Neil Rose (the Editor of Legal Futures), John Chisholm, Mitch Kowalski, Colin Lachance, Lisa Webley, and Paddy Oliver.

I wasn’t sure what kind of reaction I would get when I reached out to request an interview. Would they agree to speak with me? Would they even respond to me? How long would it take to receive a response? At the beginning, some (but not many) of the people I contacted did not respond to me. In retrospect, I think this was because they were not the people I needed, and they recognized that faster than I did. In time I got better at identifying the people I needed, and as I did, nearly everyone I contacted not only responded to me, but also responded relatively quickly, and expressed little hesitation in agreeing to speak with me.

I conducted the interviews either by phone or skype, with one exception (Sir David Clementi, with whom I met in person). Most interviews lasted about one hour. A small number were shorter — about 30 minutes — and some were much longer — up to two hours, with some of those taking place over more than one call. When I conducted the first interviews in early 2014, I had no idea what I was doing: I wasn’t sure what questions to ask, I wasn’t sure in what order to ask them, and I wasn’t adept at formulating follow-up questions. After the first few interviews, I got the hang of it. The interviews became semi-structured, with the support of a topic guide.

More specifically, I developed a core set of questions. Before each interview, I studied the publicly available information about the organization and the interviewee, and tailored the core set of questions to reflect the specificities of both. As I listened to each interviewee, I got into the habit of noting follow-up questions and I got better at identifying the right moments to ask them. Because I was never sure that I asked all the right questions, my last question became “What should I have asked, but didn’t?” Often it was this question that elicited the most interesting comments.

In most instances, the interviews were recorded with the permission of the interviewee, and I also took handwritten notes as needed. After each interview, I prepared a write-up. I quickly recognized that a simple transcript of the interview wouldn’t work: hearing the spoken word is one thing — reading the spoken word is something entirely different. Run-on sentences, sentence fragments and the repetition of words and ideas are tolerated and even expected in speech, but not in writing. So, what I did was take the words and ideas that the interviewee expressed orally, and organized them on paper (or, more precisely, on a screen) in way that they could be easily accessed by a reader rather than a listener. Because I wanted the focus of the reader to be on the interviewee and not on the interviewer (me), I excluded from the write-up the questions that I posed and any other limited commentary I occasionally made during the interviews. An unfortunate by-product of this is that sometimes in reading the stories, the transitions can be abrupt.

I sent each write-up back to the interviewee. In doing so, I invited him/her to make comments and corrections. At first, I wasn’t sure how “warmly” I should extend this invitation. Naturally I wanted any factual errors to be corrected. More than that, I wanted the interviewee to be comfortable with the write-up. At the same time, however, I didn’t want the write-up to be transformed into something that no longer reflected the interview, and I especially didn’t want changes that would transform the write-up from an interview to advertising. In progressing with the first few write-ups, I discovered that those fears were mostly unfounded — most interviewees made very few if any substantive changes. And when substantive changes were made, in most cases I felt that they improved the write-up. So, after those first few write-ups, I became comfortable extending what I intended to be a warm invitation to make comments and corrections, saying “please don’t feel wedded to what I have typed” and “it is important that you are comfortable.” And when I received a write-up back, usually in the form of a mark-up, I did not question or quibble with the changes — instead, in nearly all cases I accepted all of them, and then went back through the revised document simply to correct any spelling or grammatical errors.

As noted above, the interviews were conducted between March 2014 and June 2016. In August 2015 I contacted everyone I had interviewed up to that time, and I invited them to work with me to update their write-ups — most of them did so, if not immediately, then over the course of the following months.

[1] http://www.legalfutures.co.uk/.

Voices of Modern Regulation

James J. Grogan, Illinois Attorney Registration & Disciplinary Commission

Today, regulators are gaining more experience as well as professionalism. As we do so, it is natural that we ask how we can do it better. It is natural that we seek to be less reactive and more proactive.

Operating under the authority of the Illinois Supreme Court, the Illinois Attorney Registration & Disciplinary Commission (ARDC) regulates, licenses and disciplines the lawyers of the state of Illinois.

The young attorneys entering the profession today have professional and economic challenges that attorneys a generation ago did not have. Today law students graduate with a high level of debt and enter a world of significantly fewer professional opportunities. Further, nothing in their legal training equips them to deal with the business aspects of a law practice, and, once they graduate, mentoring no longer occurs on the scale it used to.

Most lawyer regulators will say that our business is to discipline. They will say that there are bad apples, and that it is the regulator’s job to remove them from the profession. Of course, we need to keep doing that. But not only do that — to only do that is the old model. We need to do more.

There are also lawyers who are not bad apples, they simply are not equipped to handle the rigors of practice. This is particularly true of sole practitioners, who operate without effective oversight. This might be less true in a large firm, where there are checks on a lawyer’s practice, such as insurance.

We have a very large attorney population in Illinois — nearly 96,000 lawyers, with over 45,000 of those based in Cook County (Chicago). In 2015, the Supreme Court allowed us to collect certain information from our lawyers during the annual registration process. That information includes, most notably, the types of structures they work in, whether they have malpractice insurance, and the succession planning they have in place. (By succession planning, I mean what happens if a lawyer is disabled, dies, or is otherwise unable to practice).

Of our 96,000 registered lawyers, 68,000 are registered as active (the others are either inactive or retired). Of those 68,000, about 20% (13,555) are sole practitioners. Those are the people in the trenches. Of those attorneys, 7,967 say they have malpractice insurance, and 5,588 say they do not.

What does it mean when a sole practitioner does not have malpractice insurance? It means, most likely, that they have not analyzed their systems. That is, when you seek malpractice insurance, the insurer requires you to analyze your systems: do you maintain certain books and records, do you have a system for screening conflicts, do you have a succession plan, etc.

The question that I find most interesting is the one regarding succession planning. If you work in-house, or for the government, and even if you work in a small firm, succession planning is not such a big issue. If something happens to you, it is likely someone else will be available to step in. But if you are a sole practitioner, this is a big deal. The information we have collected reveals that of the13,555 sole practitioners in Illinois, 10,463 say that they do not have succession plans. 2,167 say that they do, and 925 say they are not sure. (In fact, when we asked this question, we received hundreds of calls from lawyers asking us what a succession plan was).

It’s a terrible problem when a sole practitioner becomes incapacitated without a succession plan. What it usually means is that the regulator has to step in as the receiver, and the clients end up lost, unable to understand what is happening with their matters.

All of this leads to proactive management based regulation (PMBR). No one wants lawyers to fail. No one wants lawyers to not be in a position to render the most competent legal services. PMBR helps a sole practitioner to know where he/she needs help.

What we are doing is looking at what lawyers who are obliged to conduct self-assessments do, whether it’s a self-assessment done for the purposes of insurance or under the requirements of another jurisdiction, such as Australia or Nova Scotia. We are studying the mechanisms that will help sole practitioners to study their systems.

We are not doing this with the idea that big brother is watching and will come to get you if you don’t do it right. To the contrary, our goal is for sole practitioners to have successful careers so that we don’t have to deal with them. Most lawyers are perfectly competent when it comes to their one-on-one work with clients. But their offices are a mess.

Our Commission, the ARDC’s governing body, is so interested in this that each and every one of its seven members has joined the subcommittee that is studying PMBR.

There has been an evolution in how lawyers are regulated. In the 1960s and 1970s, the regulatory system for lawyers was broken. Today, regulators are gaining more experience as well as professionalism. As we do so, it is natural that we ask how we can do it better. It is natural that we seek to be less reactive and more proactive. Are we doing a good job in serving licensed lawyers? A part of this is to look outside the US, to see what is happening in England, in Australia, in Canada.

In Illinois we, as regulators, do not have the authority to regulate entities — we only have the authority to regulate individual licensees. That being said, given how often lawyers move among firms, entity regulation would be a moving target. In fact, there are only a few states in which entity regulation has caught on in any form. In Illinois, I expect that our approach will be limited to the individual lawyer. In our opinion, we can get to an entity via its individuals, on the grounds that a partner was not properly managing his or her office. In sum, not only do we not have the formal authority to regulate entities, but we also do not see the need to do so.

In 2010, the ARDC, with the approval of the Supreme Court, adopted a mission statement, which you can consult on our website. When you look at it, you will see that we perceive our role to be larger than just discipline — it also includes registration and education, and PMBR is also a natural outgrowth. We view this mission statement as being akin to Colorado’s regulatory objectives.

In our opinion, once big states like Illinois and Colorado make progress on this topic, other states will follow fairly quickly. This begs the question: why are Illinois and Colorado at the forefront of PMBR in the US? There are a number of reasons for this. To begin, more generally speaking, our two states have often been leaders in lawyer regulation. Secondly, without criticizing the unified (or integrated) bar structure, I think that the fact that in Colorado and Illinois we do not have unified bars makes developing regulatory initiatives easier. Another reason is that in each of Illinois and Colorado we have a singular regulatory system, as compared to a state like New York. In that state, regulatory authority is spread among the various judicial departments, resulting in a Balkanized system that makes the development of regulatory initiatives more difficult. Finally, in both Illinois and Colorado, the regulatory agency has a positive and healthy relationship with the Supreme Court, with regular and positive dialog. You don’t see that in many other states, where the relationship might even be adversarial.

Of course, this cannot work unless there is lawyer buy-in. So far, the reaction to PMBR we’ve received from the state and local bar associations (such as the Illinois State Bar Association, the Chicago Bar Association,…) has been quite positive. Remember, many of the officers of the bar associations are sole practitioners themselves. They understand the challenges of being a sole practitioner, and they want sole practitioners to survive. We are focusing our discussions on the young lawyer sections and well as the solo and small firm sections. In my opinion, they understand the benefits of PMBR.

While everything is on the table, it is possible that our first steps with respect to PMBR will concern sole practitioners only. Or, stated more generally, it will be directed to those who don’t have the safety net offered by a firm structure or by professional liability insurance. The reason for this focus is that our experience at the ARDC is that it is typically sole proprietors that get into trouble. For example, in 2015, 75% of the lawyers sanctioned were either sole practitioners or in small firms. What our first steps might consist of, for example, is a rule that requires those who do not otherwise have a safety net of some kind to perform a self-assessment. We might accompany this with, for example CLE (continuing legal education) credit for practitioners to learn about the self-assessment. Of course, whatever we do must be approved by the supreme court.

We don’t see that PMBR is connected to alternative business structures. Or, at least, we don’t see that it needs to be. For us, we see PMBR as our way to help lawyers, and sole practitioners in particular, to avoid us, the regulators. And as our way to help lawyers provide optimum service to their clients. That being said, again, everything is on the table for review, even if our focus at the moment is on PMBR.

To download a pdf of this and the other stories, please click below.

Voices of Modern Regulation

James Coyle, Attorney Regulation Counsel, Colorado Supreme Court

We want to understand how we as regulators can help attorneys...to have the tools they need to build an ethical infrastructure. In our opinion, the best way to do that right now is to develop a self-assessment form for attorneys who are in private practice.

Operating under the authority of the Colorado Supreme Court, the Office of Attorney Regulation Counsel educates, regulates, licenses and disciplines the lawyers of the state of Colorado.

Our state has 39,229 registered lawyers, of which 26,500 are active. Of those active attorneys, approximately 16,500 are in private practice, either as sole practitioners or with a small, medium or large firm (the remaining active lawyers work either as in-house counsel or in government positions).

When I look at the work of the Solicitors Regulation Authority (SRA) in England and Wales, I see that they spend a lot of time assessing risks and identifying ways to reduce those risks and to improve client services. Here in Colorado we do not have the resources of the SRA, but I think there is still a lot we can do. This is especially the case if we use the English and Australian models to guide us.

When the ABA House of Delegates met in February, 2016 to discuss the proposed Regulatory Objectives, they ended up adopting them with two significant changes. The first change related to lawyer wellness programs: this is a change that I strongly encouraged because I think that such programs pay great dividends. The second change clarified that the ABA has not changed its position with respect to nonlawyer ownership of law firms. This change reflects an undercurrent of fear in the US that nonlawyer ownership will cause our institutions to change too much, such that we lose client confidentiality and the ethos of the lawyer-client relationship.

In Colorado, our focus is on how we can improve the provision of legal services in our state. In particular, we want to understand how we as regulators can help attorneys, and especially sole practitioners and those in small firms, to have the tools they need to build an ethical infrastructure. In our opinion, the best way to do that right now is to develop a self-assessment form for attorneys who are in private practice.

Not only do we want to develop a powerful tool, but also we want to develop incentives for practitioners to use it. For example, we can offer CLE credit for training programs on how to use the tool. We can develop a kind of certification program akin to the one offered by the Better Business Bureau, to indicate that a firm has completed the self-assessment process and verified compliance. We may be able to negotiate insurance premium reductions for participants.

At first, we’ll run the program as a pilot project. After a couple of years or so, once Colorado lawyers have become familiar and comfortable with the process and recognize its benefits, we may consider developing a mandatory program. That program could include, for example, entity registration and the requirement that each firm appoint a compliance officer.

It’s baby steps. We understand that there are some who are fearful of change, and we are sensitive to that. We also want to collaborate with the general public and Colorado lawyers on how to regulate in the most effective manner.

The reason that England and Wales as well as Australia adopted PMBR is because their systems were changed to allow for nonlawyer ownership. While their systems are not perfect, they also offer a lot of advantages. In Colorado, we are probably not ready to go as far as England and Wales and Australia, but I think we are ready for more proactive approaches that improve lawyer competence, diligence and client service. And when we are ready for more, we’ll do more.

Lawyers today struggle with the concepts of self-governance and the public interest. Since the 19th century, lawyers have taken for granted that self-governance is in the public interest. I think we need to challenge that. We need to make sure that regulation is done through the lens of the public interest. In Colorado we are trying to do this, for example, by increasing consumer choice through lawyer mobility and by revising our continuing legal education (CLE) program. More specifically as regards CLE, we would like both to make it more meaningful and useful for lawyers, and to make information about individual lawyers’ compliance available to the public. In this way we believe we can increase lawyer commitment to professional development. We are also studying alternative regulated legal service provider programs.

Colorado has an advantage over other states with respect to the regulation of legal services. The Office of Attorney Regulation Counsel is a cradle to grave shop: we handle attorney admission and registration as well as CLE, discipline and unauthorized practice of law. This has enabled us approach the regulatory function in a holistic manner. Further, this means that we are not compartmentalized in silos of confidentiality, like most other states are. That is, our office has access to all attorney admission and registration information, to all CLE information, and to all discipline information. We can analyze all of this information together in order to understand patterns and where risks lie. We can understand to what extent our admissions policies are successful. We can connect discipline issues to firm structures and other aspects of lawyer practice, such as practice areas. This allows us to anticipate discipline issues and take actions to reduce their occurrence. Very few states have this ability.

Colorado has a history of regulatory innovation as compared to other states. For example, in the 1990s, we were one of the first states to put in place a central intake system for complaints, and we were the first to make it telephone-based. When my predecessor and then employer told regulators in other states that we were planning such a system, we were laughed out of the room. We were told that we were crazy, because it would result in triple if not quadruple the number of complaints, and most of those would be unfounded. It is much better, we were told, to require the complainant to make their complaint in writing. In that way, they will spend time tailoring their complaint to the rules of professional conduct. We went ahead with our system anyway. And the other regulators were right, it did quadruple the number of complaints we received. But this had great value. It allowed us to speak with these people. It gave us the opportunity to explain why the attorney was doing what they were doing, and why it was exactly what the attorney was supposed to be doing. We could also help to re-connect the client and the attorney, on the basis of better communication channels. In that way, we could help improve the attorney-client relationship. Further, if something really was wrong with an attorney — for example, if six different clients called in complaining that the same attorney is not responding to calls — our system gave us a means to know that and take action quickly. This reduced further client harm and allowed us to help steer the attorney back on track.

Today in Colorado we have established two subcommittees, one to study PMBR and the other to study an alternative legal service provider programs, such as Limited License Legal Technicians (LLLT) or Navigators.

The topic of a LLLT program is a controversial one, and the voluntary bar in Colorado is currently opposed to this. This is something we will continue to work on, and I remain hopeful that eventually we will adopt a program of some kind here in Colorado. I believe that are many functions that people who are not fully trained as lawyers can fulfill more than adequately. An LLLT program increases consumer choice, availability of legal services and competition. Further, in my opinion and as any economist would argue, an LLLT program should also result in increased business for lawyers, because it increases the opportunities for issues that do require the involvement of a lawyer to be identified and, indeed, referred to a lawyer.

In contrast to LLLT, proactive risk and management based programs are not as controversial.

Our subcommittee for PMBR is comprised of a broad range of lawyers (sole practitioners, small, medium and large firms) and of the voluntary bar associations, including some who are opposed to LLLT. The committee also includes experts in professional liability as well as ethics. Finally, the subcommittee includes a representative of the Better Business Bureau, to learn from its Standards for Trust and other programs.

The self-assessment form that we are developing in Colorado is based upon ten principles for law firm ethical infrastructure. In identifying the ten principles, we were greatly inspired by Nova Scotia’s Management Systems for Ethical Legal Practice. Perhaps the most significant difference between Nova Scotia’s and ours is that we have added a principle relating to attorney wellness and inclusivity. I think we are the first in the world to elevate attorney wellness to this level of importance.

Our ten principles include “working to improve the administration of justice and access to legal services.” As regulators, I think that we need to do a better job of helping attorneys to understand how they can have an economically viable law practice while representing clients of modest means. A part of this is considering what other business models attorneys can use: unbundled legal services, modest means programs, legal needs inventories (or check-ups). Lawyers only serve about 15% of the legal services market; how can we as regulators help lawyers to reach a greater share of the market?

I think that there are many improvements we could make to how we provide legal services, in order to make them more accessible. We could be inspired by how urgent care facilities have made medical services more accessible. For example, why couldn’t we establish legal clinics in shopping centers: A place where, on a Saturday morning lawyers could meet with clients and, for example, prepare wills on the spot? This is possible, but not by lawyers working on their own: they would need to work with business experts, process experts, IT experts. These are levels of resources that law firms today don’t have. I think it is possible to get these resources to law firms in ways that would preserve the rules of professional conduct and at the same time make legal services more consumer-friendly and responsive to consumer needs. Australia as well as England and Wales demonstrate that this is the case. But making the changes to allow for this in the U.S. will require time.

Very little of what we are doing in Colorado is unique or original. To better understand it, all you need to do is sit down and read what is going on in the rest of the world: England, Australia, Nova Scotia, British Columbia,… We’re just taking what we like from their systems and adapting it to Colorado. And we believe that both lawyers and clients will benefit from it. It’s a win-win for everyone involved, and it just makes sense.

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Voices of Modern Regulation

Herman Van Ommen, Law Firm Regulation Task Force, Law Society of British Columbia

We see the regulation of law firms as housekeeping. That is, it’s time for it. Law firms have been part of the legal services landscape for the past 40 years, albeit larger and more dominant in the past 20. As of now, we don’t directly regulate them, even though firms are responsible for much of the behavior of lawyers.

The Law Society of British Columbia regulates, licenses and disciplines the lawyers of British Columbia.

In 2012 our Legal Profession Act was amended to grant to the Law Society the authority to regulate law firms. Before that, the Law Society only had the power to regulate individuals. Now we are in the process of developing the rules we need to exercise that authority.

My Task Force was created in 2014. Our mandate is to consult with each other and with the members of the Law Society, and on that basis to propose a framework for the regulation of law firms. To date, my Task Force has issued a brief consultation report, we’ve conducted a written consultation process, and we are now traveling through the province in order to meet in person with local bar associations to obtain their input and views.

Our mandate is to develop a framework for rules to regulate law firms, as opposed to entities more generally. The Task Force is not looking at alternative business structures (ABS). We are not opposed to ABS, but nonlawyer ownership of law firms implies policy issues that my Task Force is not being asked to consider at this time. Of course, whatever we do with respect to law firm regulation will likely have application should we ever decide to permit ABS.

We see the regulation of law firms as housekeeping. That is, it’s time for it. Law firms have been part of the legal services landscape for the past 40 years, albeit larger and more dominant in the past 20. As of now, we don’t directly regulate them, even though firms are responsible for much of the behavior of lawyers. For example, when a lawyer engages in a conflict of interest, often it is with the permission of the governing committee of the law firm. Yet, we don’t discipline a firm when its makes inappropriate decisions of that kind. Law firm regulation is a way to make sure that all the actors in the legal services market are directly subject to regulation.

By regulating law firms, we will not change our Code of Professional Conduct as it applies to individual lawyers. That is, by regulating law firms, we will continue to regulate lawyers on an individual basis as well.

In our consultation process, some have expressed the concern that law firm regulation will add an extra level of regulation, and, in that manner, increase the regulatory burden placed upon lawyers. Our response to that is this: in some ways, we are removing some of the regulatory burden from individual lawyers and placing it on firms. This is because if the firm makes a decision that controls behavior in  areas such as conflict of interest, advertising, trust accounting (as examples), it is the firm that should be responsible.

In our consultation process we often hear the opposite concern as well, which is that if we remove certain responsibilities from individual lawyers, it will lead to more unethical behavior, not less — that law firm regulation will free up individual lawyers to be less ethical. I personally don’t understand this. Firms have a strong influence on lawyers and their activities. Firms influence the professional standards and ethical behaviors of individual lawyers. That is part of a firm’s culture. Law firm regulation will require firms to be more thoughtful about their culture and take steps to ensure they have a good culture. It is wrong to think that because a firm is responsible, an individual lawyer can do whatever he or she wants. Individuals will have to answer to their firms — firms are much closer to their individual lawyers than is the Law Society.

What I have discovered in the consultation process is that the concept of proactive regulation is not well understood. We explain it this way: “We well set out a series of objectives. We are not going to tell you how to meet these objectives, we are not going to tell you what policies and procedures to have in place. We’re only going to tell you to figure out a way to ensure that your lawyers do not, for example, engage in conflicts of interest. That’s all we’re asking you to do.” This is quite a different concept for lawyers because to date our regulation has been very prescriptive.

Currently, we act only on complaints. Law firms have a much better idea than the Law Society does of what its lawyers are doing. In this respect, law firm regulation should result in a greater number of issues being noticed and addressed before they reach the stage of a complaint. In this sense, with law firm regulation, individual lawyers will be subject to greater scrutiny.

With respect to the written consultation process, we received responses that were all over the board. Some people expressed opposition to law firm regulation, while others expressed support. A notable recurring comment relating to sole practitioners and small firms, was that because they don’t have the resources that larger firms do, they should not be subject to the same requirements. It is clear we will need to address this concern.

Interestingly, as we travel around the province to meet with lawyers in person, we are not encountering much pushback on the concept of firm regulation. Some people have said “we thought you already did that.”

In our presentations, we give this example: when a complaint is filed with respect to an individual lawyer, currently we can only deal with that lawyer because all investigations are confidential. We cannot even go to the lawyer’s managing partner and say “Did you know Joe is having a problem? We’ve had two complaints, it appears he is not paying attention to his files. What is going on? Can you help him?” We can’t do that. It’s when we tell this story that we don’t get pushback on the concept of firm regulation.

In our consultations, concern has been raised with respect to the prospect of firms having to develop their own policies. So, the consultation procedure has taught us that the Law Society will need to be involved in helping to develop model policies, and in setting up groups to help firms to work together. Certainly there will need to be a transition time for firms to develop policies to meet the regulatory objectives.

Concern has also been raised around policies relating to equity and diversity in law firms. We’ve received a lot of questions about just what this means, and what the precise objectives will be. We don’t have responses to those questions yet, but we are working on it.

Outside of those specific concerns, most of the people we are consulting with see firm regulation as a relative no-brainer. This is especially true with respect to the core areas like conflicts, file management, client management… They say that of course we should be regulating firms with respect to these issues.

We have watched with interest the debate in Ontario with respect to ABS. In watching that debate, it became even more clear to us the importance of not polluting our project of law firm regulation with the politics of ABS.

Of course, the other law societies of Canada are also working on law firm regulation, and we are in touch with their task forces. We keep close tabs on each other, to keep each other informed as to what we are doing and the directions we are heading. What I have found interesting is that even working separately, we’ve developed quite similar approaches. I anticipate that across the Canadian provinces we will end up in substantively similar places. There will be differences, for sure, but I don’t think they will be fundamental differences.

We get so many complaints that are relatively minor — he didn’t return my calls, he was rude to me, that kind of thing. If every firm was required to have a customer complaint number on their website and on their retainer letters — that would be the first place for clients to call. And any managing partner worth their salt would solve those problems before they reach the Law Society.

Utilizing the law firm in a regulatory model should be a very effective way to impact a lawyer’s behavior, because the firm is more likely to have a cooperative relationship with its members. From a regulatory perspective, the Law Society’s relationship with lawyers is often more adversarial, and adversarial relationships are often less effective in modeling behavior.

Protection of the public is one of the Law Society’s statutory mandates, as is ensuring that lawyers conduct themselves in an appropriate and ethical manner. If we can prevent complaints, or at least reduce them, that fits squarely within our mandate. As compared to a law society, law firms are a much more effective way to impact a lawyer’s behavior. With law firm regulation, there is a real chance that we can reduce the number of complaints that the public make about lawyers.

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