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of the Nova Scotia Bar; and
finally, the types of complaints
made against lawyers in Nova
Scotia. This analysis provided
substantial information for the
development of an appropriate
ethical infrastructure.
After considering all of the
material we ultimately identified
10 regulatory targets, which we
referred to as “elements”, that we
believed should form the basis of
ethically based management systems for Nova Scotia. All 10 elements
reflect the content and theme of Nova Scotia’s regulatory instruments
and, in particular, the Code of Professional Conduct:
1. Developing competent practices to avoid negligence;
2. Achieving effective, timely and courteous/civil communication;
3. Ensuring confidentiality requirements;
4. Avoiding conflicts of interest;
5. Maintaining appropriate records/file management;
6. Ensuring effective firm/staff management;
7. Charging of appropriate fees and disbursements;
8. Ensuring reliable trust accounts practices;
9. Sustaining effective relationships with clients, colleagues, courts,
regulators and the community; and
10. Achieving access to justice.
We proposed that Nova Scotia’s model be called “A Management
System for Ethical Legal Practice.”
Following this process, we then engaged in Phase 3 of this project – a
consultation phase with relevant stakeholders about entity regulation
and the proposed model for Nova Scotia.
The consultations commenced with a general overview of entity
regulation, PMBR and ethical infrastructure. The overview included
a discussion of the purpose and benefits of entity regulation, and the
role played by the regulator in administering such a framework. We
invited attendees to comment and voice any concerns or issues they
had with the concepts.
Entity regulation embodies a shift
from individual lawyer conduct to a
focus on firm culture and behaviour,
from a focus on discipline alone to
process improvement.
PMBR and ethical infrastructure
play in entity regulation. It was
generally agreed that Nova Scotia’s
current regulatory framework –
which already allows complaints
to be made against law firms and
mandates that firms must already
file an annual law firm report – is
amenable to entity regulation.
Attendees also embraced the
purpose and the benefits of entity
regulation. There was a general
agreement that enabling a closer relationship between the regulator
and the regulated will be one of the most important benefits of entity
regulation. Attendees also appeared to recognize the benefits of
regulating law firm conduct rather than just focusing on individual
lawyer conduct. It was generally agreed that regulating law firm
culture, in addition to individual lawyer behaviour, is a better way
to influence cultural change and could assist in reducing complaints
against lawyers while also promoting greater professionalism and
client protection. Further, there was a great deal of support for a
regulatory system that moved away from discipline alone to assistance
by the regulator to improve the profession.
Following delivery of the Phase 3 report, we then engaged in a series
of discussions with the Society about the recommendations and how
the elements and questions (statements) should be amended. These
discussions produced several iterations of the elements and questions
(statements). The final version of the elements – and a proposed
self-assessment regime that allows firms to self-assess their practices,
apropos the elements and statements – comprised a Phase 4 report.
Council is holding a full day meeting on November 14 for the
purpose of policy level discussion and hopefully approval of the
draft Regulatory Objectives, and the proposed structure for the
Management System for Ethical Legal Practice, set out above.
Following policy direction from Council, two remaining phases exist
in the coming months: a further consultation phase; and finally the
implementation phase, including design of an ‘audit’ or ‘review’
function.
After discussion of entity regulation had subsided, we then asked
attendees to consider the 10 elements and the proposed list of
questions we had developed for Nova Scotia’s ethical infrastructure.
We invited attendees to comment and voice any concerns or issues
they had about the proposed 10 elements and list of questions. At
the conclusion of the workshop, we invited attendees to commit
to moving forward with entity regulation and ethical infrastructure
in Nova Scotia. The Phase 3 report outlined the issues raised by
attendees during the workshops, as well as our observations as to the
effectiveness of the consultation phase.
As described in the Phase 3 report, the discussions during the
consultations were extremely productive. Very little concern
emerged about the move to the new regulatory framework and the
changes that will need to take place in order for entity regulation
to be implemented. Attendees appeared to have achieved a good
understanding of how entity regulation works in practice, and the role
Our journey thus far has been both enlightening and educational. We
have thoroughly enjoyed working with the Society in designing entity
regulation for Nova Scotia, and are delighted that we have been able
to visit the province and consult a considerable number within the
legal profession.
We look forward to embarking on the final two phases of this exciting
project.
For more information, read the consultants’ reports in full at
nsbs.org/transform-regulation.
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