The question every legal regulator needs to answer

Earlier this month, I was fortunate to appear on the closing panel at the International Conference of Legal Regulators2021 Virtual Conference. The premise of our panel was that regulatory innovations are taking place in many different countries, and we should decide whether this is a good thing or not.

I was the last of the panellists to speak, and I shared with the audience the following observations, which I thought might be of interest to you.

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When I was reading over the description of this session, one line in particular jumped out at me: “Should everyone be embracing some form of innovation?”

I want to try answering that by reference to what we’ve just heard, because my fellow panelists are telling us something important about what’s happening not just in their own countries — reforms that authorize regulatory sandboxes, alternative business structures, and paraprofessional programs, among other things — but in the legal services sector worldwide.

What’s going on in all these places is really a return to first principles in legal regulation. These jurisdictions are asking themselves questions like, “What’s the purpose of legal regulation? What are we trying to accomplish here?”

I get to speak to a number of people in the legal regulatory field on a regular basis, and I sometimes ask them that very question: “What’s your purpose? What are you here to do?” And what I usually hear back is some variation on, “We are protecting the public.” I think many of you probably use that phrase, or it’s in your institutional mandate somewhere.

And I think it’s a really interesting answer, because it then allows me to ask an important follow-up question: “Okay. And what are you protecting the public from?”

Riddle me this.

That leads to a number of responses, which all tend to revolve around a common theme: “We are protecting them from unscrupulous providers of legal services. We are protecting them from incompetent purveyors of legal assistance.”

Okay. Good answers. I think we’d all agree that it’s pretty important to keep the unscrupulous and incompetent away from people whom they could exploit and abuse.

But see, here’s where it gets interesting. Because traditional legal regulation, having answered that question, then makes a fundamental error.

Traditional regulation says, “We want to protect the public from the unscrupulous and incompetent. And here’s how we’re going to do it. We’re going to divide the world into two groups: lawyers, and everyone else.”

So they divide the world into these two groups, and they say, “Lawyers: we presume you to be scrupulous and competent. Everyone else: we presume you to be unscrupulous and incompetent.”

Now, I put it to you that this is a category error. Traditional regulation takes one question — “How do we keep the unscrupulous and incompetent away from people?” — and answers a completely different question, by saying, “Here are lawyers. They’re fine. Everyone else is out.”

It’s an error because you and I and everyone else here today knows two things are true:

  • Some lawyers are unscrupulous and incompetent.
  • Many non-lawyers are scrupulous and competent.

I don’t think that’s a blasphemous observation. I think that’s reality.

And legal regulation recognizes half of that. Because it puts in place a system by which lawyers have to do certain things to get licensed, and they have to do other things every year to stay licensed. Now, I have my opinions about how effective those things are. But at least we’re doing them. We favour lawyers with the presumption of competence, but we test that presumption.

But legal regulation does not extend the same courtesy the other way. The presumption of incompetence and unscrupulous nature for non-lawyers is absolute. The prohibition is absolute. There is no process by which non-lawyers can try to rebut the presumption of their unfitness.

Except, that is, in England & Wales. And in Utah. And in British Columbia. And in Arizona. And in many other jurisdictions — like Germany and Australia and Scotland and Florida and Ontario and Washington and Alberta and North Carolina. In all these places, regimes have been set up, or pilot projects are being proposed and established, whereby people who aren’t lawyers are given the opportunity, the mere sliver of a chance, to say, “Hey — I know we’re not lawyers. But we’re ethical. And we’re effective. And we can do some good for people.”

And you know what — people need someone to do good for them. Because whatever the quality of the services lawyers are giving, most people aren’t getting those services. We know this. We didn’t need study after study to prove it, although we have them now, too.

And so I say to regulators, “Okay, you’ve kept the public safe from the unscrupulous and incompetent. More or less. So — is the public fine now? Do they have what they need? Is everyone happy?

“And if that’s not the case, then have you done your job? If the quality of legal services is high, but the availability of those services is a mere trickle, and millions upon millions of people can’t get the legal help they need, then is your work here done? Or is there more you can do? Are you here only to protect the public? Or are you also here to serve it?”

Answering those questions, I think, leads regulators to rethink their purpose, reimagine their goals, and readjust their strategies. It leads them to try something new and different, in hopes of getting better outcomes for more people.

There’s a word for that. It’s called “innovation.” And yes — everyone should be doing it.



2 Comments

  1. Alexandar Pavlov

    Dear Jordan, thank you for your article. Are you interested with the regulation in the civil law jurisdictions? I have experience from Bulgaria.
    Thank you.
    Alexandar

  2. Jordan Furlong

    Thanks, Alexander — by all means, I’d be quite interested! Most of my research comes from common-law and English-speaking countries, so I’d be interested in knowing more about lawyer licensing competence frameworks in jurisdictions that feature only one or neither of those elements.


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