Legal Services Regulation Research Articles

Modification and termination of legal services supply agreement

The article is focused on studying the possibility to modify and terminate legal services supply agreement. The author has noted that the volume of foreign investments is a significant stimulus for the recovery of the domestic economy, and this should be facilitated by proper protection of the rights of investors as less protected participants of investment relationships. All this will contribute to the need to streamline legislative mechanisms for regulating relations in the sphere of services provision. In particular, civil regulation of legal services, despite the extraordinary social importance played by relations on providing legal services in society, has not been sufficiently developed yet, in order to affirm that a fairly well-balanced regime for regulating these relations functions in Ukraine. The author of the article has indicated that the right to apply measures of operational influence by legal services’ customers requires a clear description in the legislation, but not to be established through a multi-stage interpretation of the relevant norms. The exercise of such a right should not depend on its enshrining in the terms of legal services supply agreements, i.e. its normative basis should be the relevant legal norms, which should increase the guarantee of protection of the rights and interests of the customers of such services as less protected participants of contractual relations. The author has proved that the application of legal services on protection by the customers in the form of terminating the agreement, first of all by filing the corresponding claim to the court, has no particular specificity, compared to similar protection within other contractual obligations. The analysis of court practice indicates the lack of acute problems requiring scientific description and resolution in this regard. There is a stable court practice in Ukraine regarding the protection of legal services’ customers through the termination of relevant agreements. Termination of the contract, as a terminating legal fact, protects rather the customer’s interests, but not the rights (for safeguard of assets; for concluding the same meritous contracts with other entities, etc.). The author of the work has specified that modification and termination of legal services supply agreements, which are carried out based on the understandings between the parties, as a general rule, are not applied in the context of the parties’ reaction to the offense committed by the counterparty, but due to other motives. In particular, a significant modification of circumstances can be mentioned among such motives.

Designing Just Solutions at Scale: Lawyerless Legal Services and Evidence-Based Regulation

Around the world, billions of people lack access to justice, often because they cannot access help in resolving their justice issues. An important reason for this is that many access models rely centrally on lawyers, and such models simply cannot scale. Some jurisdictions allow lawyerless legal services. We offer a new framework for understanding lawyerless legal services that breaks away from lawyer-centric logic. Inspired by experiments in reregulating the practice of law in the United States, we propose a paradigm shift: just solutions. A just solutions framework has two distinct characteristics: it is evidence-based and it is outcome-focused. We draw on experience from other lawyerless models to imagine what a just solutions framework could look like in practice, including a growing body of evidence on legal needs and effective services, as well as scalable funding innovations. Freed from the lawyer-centric paradigm, a just solutions framework is closer to people’s actual needs and, unlike the lawyer-centric model, has the potential to scale to meet them.
 KEYWORDS: Legal services; access to justice; unbundling; regulatory reform; evidence-based policy and practice.

ANALYSIS AND EVALUATION OF LEGAL AID IN THE INDONESIAN COURT

This article examines the regulation and application of legal aid services in Indonesian Courts. Normatively, the guidelines for the provision of legal aid in court are based on the Law on Judicial Power, Law on General Courts, Law on Religious Courts and Law on State Administrative Courts, and Supreme Court Regulation Number 1 the year 2014 (Perma). On the one hand, there is incoherence in the provision where the law determines that free legal service (Posbakum) service supported any level of the court until the decision is legally binding and executable, whereas in Perma applicable for the district court. On the other hand, there is an expansion of the provision of legal aid services regulated by Perma, namely that the recipient of services is not required by the poor as stipulated by law, but also for those who cannot afford to pay for advocate services. The leniency of this requirement is to facilitate people who are not categorized as poor but cannot pay for the services of a lawyer. In addition, Perma also provides services in the form of Sessions Outside the Court Building (SLGP) to facilitate justice seekers who have limited access to transportation and accommodation for the distance from the court. So the inability of the justice-seeking community is also interpreted as the inability to access trials or litigate cases in court due to the remote location or difficulty in transportation and accommodation. There are several obstacles in providing legal aid services at the court, namely related to budget constraints, lack of socialization, and availability of facilities and infrastructure. This article contributes to the role of the Indonesian Court in providing unique access to justice.

Access to Justice and Legal Services Regulatory Reform

Researchers have launched a new era of studies exploring relationships between legal services regulation and access to justice. These scholarly developments respond to recent changes in how Anglo-American jurisdictions regulate the practice of law, changing who can make money from the practice of law, who can engage in it, and who can direct and control it. Often described as projects of deregulation, most are actually acts of reregulation. This article reviews empirical evidence of the relationship between these changes and access to justice. While evidence suggests some promise for increasing access, particularly through lawyerless legal services, most of these projects are in early stages and their impacts on access to justice will take some time to understand. Because much remains to explore, we also offer a research agenda for this emerging subfield.

Theoretical and legal analysis of normative and legal bases of regulation of administrative and legal services provided by the State Migration Service of Ukraine

This article analyzes the content of legislative and bylaws governing the provision of administrative services by the State Migration Service of Ukraine.
 The author singles out a number of controversial issues in the Law of Ukraine "On Administrative Services". In particular: 1) determination of the range of subjects of appeal; 2) the lack of the principle of digitalization during the formation of state policy in the field of administrative services; 3) absence of out-of-court appeal of the decision and actions of the officials authorized in accordance with the law to provide administrative services, administrators. Therefore, it is proposed to supplement the Law of Ukraine "On Administrative Services" with a rule that one of the rights to determine the right of the subject to extrajudicial appeal against decisions and actions of officials authorized by law to provide administrative services, administrators. When exercising the right to an administrative appeal, the subject of the appeal has the right to a direct administrative appeal and a diagonal administrative appeal; 4) lack of mandatory monitoring of control over the number of services provided by authorized entities and, accordingly, the quality of their provision (successful implementation of the principles of providing administrative services); 5) lack of norms that take into account the peculiarities of providing administrative services in cases of formation of a united territorial community.
 It is noted that the lack of outlined shortcomings of the special legal act creates negative conditions for neglect of certain administrative and legal norms for the provision of administrative services and creates conflict situations in which the subject can not fully receive quality and fast necessary administrative service, including including in the field of migration, citizenship.
 It is proposed to understand the system of legal norms that regulate public relations arising during the provision of administrative services in the areas of migration, citizenship, registration of citizens of Ukraine, foreigners, stateless persons under the regulatory framework of regulation of administrative and legal services provided by the State Migration Service of Ukraine. , refugees and other statutory categories of migrants.

Legal Technology: The Great Disruption?

This paper considers how legal technology, defined here as the use of digital information and communication technologies to automate or part automate legal work process, to provide decision support to legal service providers, and to provide legal information and advice directly to clients/end users, is re-shaping both legal work processes, and the organisation and governance of legal practice. Starting from an essentially descriptive and functional account of legal technology, the paper explores its role in changing the temporal-spatial and organisational characteristics of practice, and in creating new challenges for the regulation of legal services. The paper then moves explicitly into sociological theory to address the question how new legal technologies are reshaping the landscape of professional knowledge and expertise itself. It concludes by drawing together implications of these various strands for the future sustainability and legitimacy of the legal profession in its present form.

Billing without Bilking: Regulating Time-Based Legal Fees

Forthcoming, Dalhousie Law Journal. A lawyer should be a loyal ally for each client, and should never exploit a client for personal gain. Legal services regulation should prevent such exploitation. It should also create certainty, and foster trust in every lawyer-client alliance. When it comes to time-based legal fees, Canadian legal services regulation is not yet doing its job. Throughout Canada, rules say that legal fees must be “fair and reasonable,” and “disclosed in a timely fashion.”1 These fine sentiments are supported by long lists of factors to be considered when a legal fee is called into question and then assessed retrospectively. That is, more or less, all that the codes of conduct have to say about time-based legal fees. What we lack are clear rules and efficient procedures to determine what specific billing and disclosure practices are -- and are not -- “fair,” “reasonable,” and “timely.” The status quo gives unethical lawyers room to take advantage of inexperienced clients in niches such as family law, estate law, and employment law, in which time-based billing is common.2 It also subjects ethical lawyers, and their clients, to unnecessary distrust and disputes regarding fees. Reconciling the obvious need to charge and collect fees with the ethical obligation to practice “honourably and with integrity” raises complicated ethical issues,3 for which regulators should offer more concrete guidance. Without fixing prices or curtailing flexibility in billing arrangements, regulatory reform can create a much fairer field for agreements between lawyers and clients about time-based fees. Part 1 of this article considers first the beginning, then the middle, and finally the end of a typical retainer involving time-based billing and an inexperienced client. At each of these three junctures, we find ethical ambiguity creating both opportunities for exploitation and conflicts of interest. The vagueness of the rules requires a lawyer to unilaterally make decisions that increase or decrease the client’s bill. This creates a conflict between the lawyer’s financial self-interest, and their fiduciary obligation to put the client’s interest first. Part 2 argues for more detailed regulation of time-based legal fees, in order to prevent exploitation, create certainty, and eliminate fee-related conflicts of interest that undermine trust in the lawyer-client relationship. Wherever possible, the best practices for time-based billing already used by ethical and conscientious lawyers should be enshrined in regulation. Drawing on regulatory theory, I argue that a move from the current vague standard to more precise rules would create certainty, without significantly constraining flexibility. Part 3 turns from the rules to the procedure that is meant to enforce them. I argue that the court-based process for identifying and remedying unethical billing is inaccessible, inconsistent, and vulnerable to strategic abuse by both lawyers and clients. Making law societies fully responsible for regulating legal fees would make the system more holistic, accessible, and consistent.

The legal profession of China in a globalized world: innovations and new challenges

ABSTRACTThe legal profession is undergoing fundamental changes; and this is the case not just in established legal markets. Based on a state-of-the-art sketch, this paper identifies and analyzes the latest innovation initiatives and alternative business models in China’s legal profession. It finds that, propelled by market demands and benefiting from technological advancements, the provision of legal services has become highly versatile today, giving rise to various alternative service providers, especially the rapidly rising online legal service portals. Because they are technically not law firms, the exclusivity requirements on lawyer ownership and legal service provision are not applicable to them. In the meantime, the competition for large corporate clients and lucrative business transactions is fierce and will continue to be so, not only within the club of big Chinese corporate law firms, but also between Chinese law firms and international law firms globally. In this course, some leading big corporate law firms in China are observed to have creatively incorporated key corporate features in running their business and compensating their partners, effectively deviating from the partnership + pure legal services regulation. Such market realities question the necessity and effect of the regulatory restrictions on law firm legal form and ownership structure, and call for an agenda for related research in the future.

Risk Regulation for the Legal Profession

This article explores the current state of Canadian legal services regulation and changes that are impacting it. The authors argue that the only legitimate purpose for legal services regulation is the protection of the public interest, and this goal is best achieved through risk regulation. The article discusses four roles risk plays in regulation: as an object of, and justification for, regulation, as an organizing principle, and as a measure of accountability. It includes practical examples and comparisons to other jurisdictions and professions. Finally, the authors recognize that substantial changes will be required to shift to a risk regulation regime for legal services, but that such a change is necessary.

LEGAL RECORDS AT RISK WHAT SHOULD BE DONE TO RESCUE PRIVATE SECTOR LEGAL RECORDS?

Private sector legal records are at risk of becoming lost or inaccessible through globalization, digital obsolescence, physical neglect, lack of interest on the part of information owners or reduced archive resources to preserve and provide access to the records. All records in the private sector face similar challenges, but modern legal records (early twentieth century to the present day) are particularly vulnerable due to recent developments which are transforming the nature, organisation, regulation and economics of legal services. These changes are outstripping the capacity of the traditional providers of legal research facilities to preserve and make available relevant records. Unless systematic efforts are made towards collecting private sector legal records, we are in danger of losing a significant proportion of our legal heritage. Research using modern legal records will continue to be weighted towards the study of government policy, legislation and the courts, producing a distorted historical picture of the UK’s legal framework.

Régulation de la qualité des services juridiques et gouvernance de la profession d’avocat

Le mouvement actuel de dérégulation du marché des services juridiques s’exerce indistinctement sur l’ensemble des services produits par les avocats, dont la variété n’est donc pas prise en compte. À l’encontre d’une telle conception, nous considérons des services juridiques hétérogènes. Nous analysons cette hétérogénéité à partir de la classification économique des biens de confiance, de recherche et d’expérience, et en tirons les implications régulatoires. Nous montrons ainsi que les mécanismes de marché fondés sur la réputation individuelle des avocats sont suffisants pour réguler l’offre des services ayant des caractéristiques de recherche ou d’expérience. En revanche, une réglementation est nécessaire pour assurer la qualité des services juridiques caractérisables comme des biens de confiance. Cette réglementation peut alors être produite soit par autorégulation, soit par hétérorégulation, en fonction des coûts et avantages relatifs de ces deux modes de production du droit professionnel.

Corporate Lawyers and the Public Interest

Examining the role of 'public interest' in legal services regulation and its meaning in the context of corporate and finance lawyers in large firms.

The legal profession in Troikaland: before and after the Irish bailout

Ireland is feeling a chill wind of austerity emanating from ‘the Troika’; the European Commission, the European Central Bank and the International Monetary Fund. However, this paper concerns an altogether different Troika: an ‘Unholy Trinity’ of bankers, property developers and lawyers. It is argued herein that the combined activities of this Unholy Trinity contributed to the growth of the property bubble, the banking crisis and Ireland's subsequent economic collapse. Whilst the roles of bankers and property developers in the demise of Ireland's ‘Celtic Tiger’ economy have been extensively documented, the role of lawyers has received less attention. This paper seeks to correct the current discursive imbalance. First, the paper outlines the ‘Unholy Trinity’ hypothesis which postulates the existence of a tripartite grouping of social actors that contributed to the Irish economic collapse. A case study of Michael Lynn, property-developer-lawyer is presented, which examines the regulatory failings which Lynn manipulated so effectively. A brief account is also given of the sequence of events which culminated in the receipt of the Troika bailout. Finally, the paper assesses whether the reforms contained in the Legal Services Regulation Bill (LSRB) 2011 will be sufficient to rectify the regulatory failures which are identified herein.

Let Sleeping Lawyers Lie: Organized Crime, Lawyers and the Regulation of Legal Services: Table 1

The study examines the range of crimes in which solicitors become involved as primary offenders (mainly fraud) or on behalf of others (criminal planning and money laundering) and critically reviews the factors in their personal and working environment that may promote or inhibit such crimes and the ways that criminologists and socio-legal scholars have accounted for deviance and the regulation of the profession. It ends by discussing trends in contemporary lawyering and its regulation—ethics, discipline, ownership and surveillance—that could plausibly affect rates of crime by solicitors, focusing on England and Wales but also giving some comparative context with the United States.

Towards the Law of Legal Services

Imagine that someone asks you how legal services are regulated in the United States. You might answer that lawyers need a license in the jurisdictions where they intend to practice, typically after graduating from an ABA-accredited law school and passing the bar examination. You could explain that lawyers are governed by rules of professional conduct and subject to discipline, including disbarment, for failing to comply. You also might mention the growing patchwork of state and federal regulations that govern lawyer behavior. Each of these answers offers a slightly different perspective on the regulation of legal services, but they share one common feature: they are all about lawyers. This Article contends that the current lawyer-based regulatory framework should be reimagined if we hope to spur more innovation and expand access to justice. Rather than focusing on the so-called “law of lawyering” – the body of rules and law regulating lawyers – this Article suggests that we need to develop a broader “law of legal services” that authorizes, but appropriately regulates, the delivery of more legal and law-related assistance by people who do not have a J.D. degree and do not work alongside lawyers. For example, the Washington Supreme Court recently adopted a framework for allowing specially educated and separately regulated professionals – Limited License Legal Technicians (LLLTs) – to deliver a narrow range of family law services without a traditional law license. Some observers predict that LLLTs will be able to offer assistance at a lower cost than lawyers and improve access to legal services. This type of regulatory reform, which falls outside the law of lawyering, illustrates the growing importance and potential utility of the law of legal services. The idea of looking beyond the law of lawyering for ways to encourage innovation is conceptually different from many recent calls for regulatory reform, which tend to focus on expanding opportunities for lawyers and nonlawyers to work together through alternative business structures (ABSs). To be sure, ABSs are a potentially important development, but they are necessarily a creature of the law of lawyering. Consider, for example, the authorization of ABSs under the United Kingdom’s Legal Services Act (LSA). Passed in 2007, the LSA requires ABSs to have a lawyer manager, provides detailed regulations about a lawyer’s role in the ABS, and explains the role nonlawyers can play relative to lawyers. The LSA does not purport to regulate nonlawyers who want to deliver legal services completely apart from the legal profession. In other words, reforms focused on ABSs overlook regulatory innovations outside the law of lawyering – like the LLLT program – that hold the promise of an even greater impact on legal services.For too long, regulatory reforms have focused primarily on the limited options available within the law of lawyering. By looking beyond that body of law, we can unlock the innovative potential of new providers who are capable of delivering legal services to those who need them. In this way, the law of legal services can safely expand the public’s options for addressing many legal needs, and it can do so in ways overlooked by conventional regulatory reform efforts.

Trade Agreements and Legal Services: An Anatomy of the GATS and Preferential Trade Arrangements

There is little doubt that the past two decades have seen an extraordinary advance in the globalization of the world's economies. In this context, the legal services play a crucial role in facilitating business and form a vital part of the infrastructure that underpins world commerce. As a result, this service sector has experienced continuous growth over the last ten years. However, the regulation of legal services in most jurisdictions did not follow the same evolution, which results in restrictions on cross-border legal practice. Yet economic growth and globalization of economies increasingly require the adaptation of the regulation of legal services. In most instances they take place in the context of trade agreements. Until recently to the exception of the EU and the NAFTA, the liberalization of trade in services took place within the General Agreement on Trade in Services (GATS). However, the last decade has seen a proliferation of Preferential Trade Agreement (PTAs), which contain liberalization of trade services, including legal services. Such evolution leads to the coexistence of the GATS and the PTAs. The objective of this article is to analyse the interaction of these agreements in the context of the liberalization of trade in legal services using four principles of trade liberalization: the transparency; the nondiscrimination; the avoidance of unnecessary restrictions; the recognition.

The Legal Education and Training Review: regulating socio-legal and liberal legal education?

The Legal Education and Training Review (LETR) which reported in June 2013 conceded that undergraduate law degrees are generally outside the remit of the review other than when there is a direct impact on the provision of legal services. On first glance therefore the review has few implications for those of us interested in delivering a liberal legal education and developing socio-legal approaches to law and legal study. However, on closer reading, the report contains a number of suggestions which, if taken up by the regulators, have significant potential to change law degrees, even if regulation remains “light touch”. This article explores those issues with a particular focus on the implications for liberal law degrees and socio-legal approaches to law teaching. In particular the article will explore issues around possible changes to foundation subjects; the creation of a framework of learning outcomes; the possible strengthening of legal writing and research in the curriculum and the opportunities offered for the introduction of more socio-legal material; and the trickle-down effect likely to be felt by providers of undergraduate law degrees of changes in regulation of legal services and as a result of student, employer and other stakeholder expectations.

Regulation, Access to Justice, and the New Legal Realism: Searching for Connections

What does access to justice have to do with legal services regulation? Can we make it easier for people to defend their legal rights and pursue social justice by liberalizing rules about the provision of legal services? This brief paper will begin by reviewing the economic argument that legal services regulation impedes access to justice. Although this argument has strong appeal in theory, deregulatory reforms have not always delivered their accessibility benefits which the economic critique promises. Moreover, economic criticism of legal services regulation tends to assume that lawyers are simply market actors, as opposed to members of an independent profession whose maintenance has value to clients and to the public. The paper will therefore conclude by suggesting that empirical inquiry using a new legal realist (NLR) methodology can make a constructive contribution to this debate.

Access to justice: is legal services regulation blocking the path?

High prices and lack of innovation have placed expert legal services beyond the reach of too many Americans and Canadians. Is legal services regulation exacerbating common law North America's access to justice problem? Does regulatory maintenance of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for people here to meet their legal needs? This article argues that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand, and work to reduce, the effects of their policies on the accessibility of justice.

The Legal Profession in Troikaland: Before and After the Irish Bailout

Ireland is feeling a chill wind of austerity emanating from the European Commission, the European Central Bank, and the International Monetary Fund. These institutions have combined within Irish political, economic and popular consciousness as ‘The Troika’. However the primary subject of this paper concerns an altogether different Troika, an ‘Unholy Trinity’ consisting of bankers, property developers and lawyers. It is argued herein that the combined activities of this Unholy Trinity caused the property bubble, the banking crisis and the subsequent economic collapse of the Irish state. This paper focuses upon the activities of lawyers during the Celtic Tiger years, but more especially upon one lawyer, Michael Lynn. Whilst the roles of bankers and property developers have been extensively documented when exploring the causes of Ireland’s economic catastrophe, the role of lawyers has received considerably less attention. This paper seeks to correct the current discursive imbalance. Kitchen et al have documented the phenomenon of ‘new ruins’ in Ireland, and the concept is used herein to illustrate the legacy of the Unholy Trinity, and in particular, that of Michael Lynn. Firstly, the paper outlines the ‘Unholy Trinity’ hypothesis postulating the existence of a tripartite grouping of social actors behind the Irish economic collapse. It then presents a case study of Michael Lynn, solicitor, whose activities gave rise to two unprecedented hearings before the Solicitors Disciplinary Tribunal in 2008. Next, the paper examines the failings of the legal regulatory system which allowed Michael Lynn to manipulate it so successfully. The paper also considers the Legal Services Regulation Bill (LSRB) 2011, which contains the changes to the legal profession sought by the Troika in return for the Bailout funds. It provides for the establishment of new bodies to oversee the regulation of legal services, disciplinary matters and costs disputes. It also provides for the possible fusion of both branches of the profession (solicitors and barristers), the potential introduction of multi-disciplinary practices and the end of self-regulation. However the Bill has succeeded in uniting the profession in its opposition to it, as it is perceived as a threat to the independence of the profession. Finally, the paper considers whether the LSRB 2011 is sufficient to give Irish consumers the quality of legal services to which they are entitled, or whether they will be subjected to ongoing systemic failures in the market for legal services.