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Models of Regulation for the Legal Profession

Models of Regulation for the Legal Profession. Colin Scott colin.scott@ucd.ie Regulatory Reform for a 21 st Century Legal Profession Department of Justice & Equality 6 th July 2012. Feedback (information gathering). Norms (standard-setting). Regulation.

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Models of Regulation for the Legal Profession

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  1. Models of Regulation for the Legal Profession Colin Scott colin.scott@ucd.ie Regulatory Reform for a 21st Century Legal Profession Department of Justice & Equality 6th July 2012

  2. Feedback (information gathering) Norms (standard-setting) Regulation ‘regulation is the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly identified outcome or outcomes which may involve mechanisms of standard-setting, information-gathering and behaviour-modification.’ (Julia Black, 2002) Correction (behaviour modification)

  3. Pure Self Regulation Self-Regulatory Body Sets Norms Version A: Reactive Adjudicates complaints Version B: Proactive Monitors Enforces complains Regulated Organisations/ Activities Protected Class Examples: • Analysis • Low Cost, Expert • BUT, risk that industry • interests placed above • public interest

  4. Mandated Self Regulation Legislature Minister Version B: ‘Shadow of Hierarchy’ Version A:‘Supplies LegislativeFramework’ • Analysis • Low cost, expert • Modest political investment • May be challenging to align • industry and public interest Self-Regulatory Body Sets Norms Version A: Reactive Adjudicates complaints Version B: Proactive Monitors Enforces Buy- In complains Regulated Organisations/ Activities Protected Class Examples:

  5. Analysis • Low cost, expert • Provides Reassurance • Requires learning by • regulatees • May require separation • of representative and • regulatory functions • Risk of industry • domination Meta-Regulation Legislature Minister Monitors ‘Supplies Legislative Framework’ Monitors Approves/Recalls Rules Recalls Decisions Learns Adjudicates Self-Regulatory Body State Regulatory Agency/ies Sets Norms Proactive Monitors Enforces Reactive Adjudicates complaints complains Regulated Organisations/ Activities Protected Class Examples:

  6. Mega-Regulation • Analysis • Provides public • assurance • Costs • Requires agency to • to learn quickly • Risks • ‘agency drift’ • low industry support • excessive • expectations Legislature Minister Monitors ‘Supplies Legislative Framework’ State Regulatory Agency/ies Reactive Adjudicates complaints Sets Norms Proactive Monitors Enforces Buy- In? complains Regulated Organisations/ Activities Protected Class Examples:

  7. Meta- Regulation Mandated Self-Regulation Self-Regulation Managing Regulation: A Pyramid of Technique Mega-Regulation

  8. Legal Services Regulation Bill, October 2011Meta-Regulation Legal Services Regulatory Authority Barristers Solicitors 1. Approve codes 2. Review: a. admissions standards, b. professional education & training Self- Regulation (statutory for solicitors) Bar Council King’s Inns Law Society

  9. Legal Services Regulation Bill, October 2011 Regulated Meta-Regulation 1. Appoint/remove members, chief executive, 2. Direct issue of codes 3. Consent to issue of Codes 4. Provide funds 5. Request reports 6. Consent to Regulations 7. Approve membership of Complaints Committee Legal Services Regulatory Authority Minister/ Government Barristers Solicitors Inform Submit strategic plans & annual reports Reports on: a. Education and training b. Unification 1. Approve codes 2. Review: a. admissions standards, b. professional education & training Self- Regulation (statutory for solicitors) Review education & training Bar Council UniversityLaw Schools King’s Inns Law Society

  10. Issue codes, Make regulations (accounts, complaints, advertising, etc) Supervision of accounts, Inspection, Charge Fees, Investigate complaints, Initiate investigations, Apply to Disciplinary Tribunal, Apply for court orders, Prosecute Legal Services Regulation Bill, October 2011 Mega- Regulation 1. Appoint/remove members, chief executive, 2. Direct issue of codes 3. Consent to issue of Codes 4. Provide funds 5. Request reports 6. Consent to Regulations 7. Approve membership of Complaints Committee Legal Services Regulatory Authority Minister/ Government Barristers Solicitors Inform Submit strategic plans & annual reports Reports on: a. Education and training b. Unification 1. Approve codes 2. Review: a. admissions standards, b. professional education & training Self- Regulation (statutory for solicitors) Review education & training Bar Council UniversityLaw Schools King’s Inns Law Society

  11. Conclusion • Not a matter of identifying ‘best model’ • Space for experimentation and learning –Revisable • Regulatory model adopted will depend on view of • activities/organisations to be targeted • Opportunity to orient professional oversight around • regulatory objectives • Audience is not just national – perceptions of • regulation affect international trade in services

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