RegulationUpdate: Consultation with the legal profession
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. Therefore, invitations were extended to all large and medium firms to participate. All large firms did; almost all mid-sized firms did as well.
Given that the extent of knowledge about our work was not consistent, each presentation was tailored to the audience. The original goal of the consultation was to address the MSELP and the draft self-assessment process; however, the extent of specific input on these varied in light of the wide spectrum of knowledge of our work. Therefore, the Society sent a followup to all participants inviting their written input, either by direct communication or via the online draft self-assessment tool.
Here is what we heard:
- There is strong support for the direction that Council is taking the Society and recognition that legal practice has changed significantly.
- The concerns and issues for lawyers/firms in Halifax and those outside differ considerably.
- There is strong support for the Society’s role in enhancing access to legal services in communities across the province, and a willingness among the profession to consider a variety of means to achieve this goal.
- There is a strong appreciation for the emphasis the Society has taken in its work with regard to supporting the rule of law, and the role that lawyers and the legal profession play in enhancing the rule of law and the constitutional aspects of our work.
- Most participants welcomed an approach that will see the Society, as the public interest regulator, supporting lawyers in the delivery of enhanced legal services.
- There is strong support for approaches that are designed to allow lawyers, firms and other legal service providers to reflect on matters in a way that is tailored to their own practices and circumstances.
- In the MSELP, it is crucial that the standards against which lawyers/law firms assess themselves be clear and be based on those that are currently applied to the profession through the Code of Professional Conduct, the Professional Standards, the Regulations and the Common Law.
- There is strong support for approaches that will allow legal entities to deliver legal services in whatever way they determine appropriate and through lawyers and other staff in law firms, so long as the standards are the same for all and the duty of supervision and oversight is in place to ensure that non-lawyers who provide legal services are both competent and ethical in providing the services they do.
- Whenever there is reference to policies or guidelines, the Society is expected to provide at least one resource as an illustration of what the document might look like.
- There must be clear way for lawyers/law firms to report to the Society on compliance matters such as trust accounts, Client ID rules, etc. and these should be distinct from the self-assessment process.
- Because the circumstances of lawyers and firms vary significantly, there may be a need for alternative versions of the self-assessment tool.
- The fact that Nova Scotia is the first law society to specifically recommend this approach was a concern to some. Some expressed concerns about Nova Scotia developing an approach that is not adopted in the rest of the Atlantic region or nationally, and about costs associated with complying with different regulatory regimes and the possible ‘competitive disadvantage’ that would cause.
- The consultations so far have shown we must continue to learn more as we move toward implementing a new regulatory model – thus the plans for a pilot project to commence this summer, to further test and fine tune the draft self-assessment process.
Darrel Pink, Executive Director