An essential component of the Society’s transformed Legal Services Regulation framework is an enhanced focus on risk. By risk, we mean ensuring that:
- lawyers and firms are able to achieve the ten elements of a management system for ethical legal practice (MSELP);
- lawyers engage in conduct that reduces risks to the public; and
- the Society identifies and responds to these risks in a proactive, principled and proportionate way, and achieves our Regulatory Objectives and Outcomes.
Developing and embedding a risk focus in our regulatory work is unfolding on a variety of levels, requiring both internal and external culture changes, as well as changing the conversation with lawyers to offer support and to work collaboratively to reduce risk.
A Risk Matrix was developed in 2015, identifying the top 15 risks that could impact the Society’s ability to achieve its Regulatory Objectives. We then began documenting our Risk Responses with the goal of minimizing the impact of the top 15 risks. These run the gamut from providing lawyers with mentoring and education, engaging in proactive supervision, and/or intervention as needed. Further, we have developed a Risk Based Maturity Model to track implementation of the Triple P and risk-focused model from ‘development’ to ‘embedded’ over five years. We are currently well into Year 4 and are on track. Council receives regular reports in this regard.
How the Triple P and risk-focused approach is making a difference
The Society’s new regulatory approach necessarily includes understanding risks to law firms in achieving the 10 MSELP elements, as well as better understanding the environment of risk impacting our ability to be an effective, trusted and respected regulator. This involves an ongoing cycle of evaluation, as depicted in the diagram below:
This risk evaluation process is applied to both the Society as an organization, as well as the MSELP self-assessment process for firms. The self-assessment creates the starting point for identification of risks to achieving the ten elements. The proposed followup process will support firms in working through their own risk management cycle of assessing, monitoring, controlling, evaluating, and (hopefully) learning and adapting.
On this new foundation of Triple P and risk, the Society is already seeing significant changes and improvements in the way it regulates. For example:
- We are embarking on research and development of an improved process for lawyers’ trust account oversight called the Trust Assurance Program, bringing the trust audit function in-house to maximize the benefit of the auditor’s experience for firms and for the organization, and to focus the audit on its educational purpose.
- We are working more proactively with lawyers who are considering retirement to help them minimize trust accounts and practice management problems at the end-of-career stage. Some of this support is also being developed through the Succession Planning Task Force.
- We are enhancing our record keeping by recording all member-related decisions made throughout the organization (including decisions to take or not take action), and opening up access by all staff to all member and firm information to enhance risk-based decision-making within the organization.
- In conjunction with the enhanced information-sharing initiatives above, the Society instituted two years ago biweekly ‘Rounds’ meetings among key regulatory staff for purposes of sharing relevant information and collaborating on Triple P and risk-focused decision-making.
- The Society is now more creative and regularly applies Triple P and risk principles when making complaints and credentials/licensing decisions. Through careful examination of the Society’s stories of success and failure in changing lawyer behavior, we are using these learning moments to better respond to similar risks in future.
- Council and key regulatory committees have been trained to apply Triple P and risk principles to decision making, and have been tasked with ensuring that the Society’s programs and activities are closely tied to the new Regulatory Objectives and Outcomes.
- A reallocation of effort and resources is taking place within the Society to emphasize areas of higher risk, coupled with a reduction of effort and resources dedicated to areas of low risk and low probability. This in turn is allowing us to reengineer some of our key regulatory processes and create greater capacity to focus on proactive Legal Services Support, rather than reactive responses and discipline.
In addition to these organizational and operational changes, other steps are underway to embed the Triple P and risk-focused approach in our regulatory system:
- The Society created this electronic newsletter in 2015 to update members and stakeholders on its progress with transforming regulation, to facilitate strategic engagement and to share developments of this nature from other jurisdictions.
- The Society is expanding its ability to be proactive with regard to sole practitioners nearing the end of their careers. We have found that providing such assistance reduces the need for appointment of receivers to manage crises after such lawyers suddenly cease to practice, thereby providing better public protection.
- The Society is developing means for identifying risk earlier, such as in situations of potential incapacity of a lawyer. Our Fitness to Practise diversionary program is the only one of its kind in North America – a consensual program for assessment of incapacity and creation of measures to address these risks, and to divert a matter from discipline. By examining the histories of lawyers who have been referred to this program, the Society is learning more about when the signs of incapacity became apparent, and how it can identify and respond to these indicia of such risk sooner.
- Through creation of the position of Officer, Early Resolution (previously the Officer, Compliance), more time is being devoted to creative ‘problem-solving’ rather than moving through the escalated and adversarial process of complaints intake calls to written complaints to investigation. As previously stated, the Society has started to incorporate a restorative approach throughout the complaints process, to try to engage lawyers in repairing harm, rather than escalating it.
In the area of licensing, the Triple P and risk-focused approach has made a significant difference by giving staff the flexibility to be more creative and subjective when assessing the qualifications of those seeking to be licensed as new lawyers or as transfers from other countries. For example, the Society is more flexible about articling arrangements, given the need for more positions, and permits such things as shared articling, part-time articling, and articling in non-traditional areas of employment including at the Society itself.
Several changes have also been made in the areas of education, the Bar Admission Course and admission requirements:
- A client and practice management course and assessment has been incorporated into the Bar Admission Course, to proactively address areas that often form the basis for future claims and complaints.
- A risk-focused, practical trust accounts management assessment has been created, which is required to be completed by anyone operating a new trust account where they have not had one before. This must be completed before trust funds can be received.
- A full-day cultural competence program has been added to the Course, again to proactively train lawyers to develop appropriate levels of competence in this area, and avoid complaints.
- A toolbox with resources for those opening a law firm for the first time has been developed, and when articled clerks identify during their training that they plan to open a sole practice or small firm, proactive discussions are had with staff to help them begin this journey on the right path.
- A new Land Registration Act course and assessment has been created with the assistance of a psychometrician to help identify current required competencies in real estate practice and ensure the education program targets those competencies. This is part of a risk response to the high number of claims and complaints in the area of real property practice.
Many of our members have by now had some level of exposure to the positive changes brought about by our Triple P, risk-focused, Legal Services Support approach to regulation. One of our next key challenges will be to begin to measure whether this approach is making a difference, both for the public we are mandated to protect, and the members we seek to support.
For more information about the development and implementation of Legal Services Regulation by the Society, including a discussion of environmental and behavioural factors impacting ethical decision-making by lawyers, refer to “NSBS Journey Toward Transforming the Regulation of Lawyers: Are We on the Right Path?”
Victoria Rees, BA, LLB, CAE
Director, Professional Responsibility