 Good afternoon. I always enjoy the WICWIRE lecture. It's a nice opportunity to find ourselves among friends. Welcome to the Schulman School of Law and Kim Brooks, the dean here at the faculty. We're pleased that you're able to join us this afternoon and that we're co-hosting this year's FB WICWIRE Memorial Lecture in Professional Responsibility and Legal Ethics with the Nova Scotia Barrister Society. This lecture is named in honor of Ted WICWIRE. He received his LOB here in 1962. The lecture honors a man who worked tirelessly to ensure that lawyers maintained a level of uncompromised professionalism. We're fittingly proud of his contributions to the legal academy, the university, and the profession. All the better that we have an excuse to do this lecture in combination with our friends at the Nova Scotia Barrister Society. This lecture reflects part of a rich, ongoing relationship between the school and the society. Speaking for the school, that relationship is one that enhances the richness of our program in people and that informs our daily understanding of law, legal education, and the legal profession. Finally, let me say I'm proud to have a lecture that focuses on professional responsibility and legal ethics here at the law school. We house the leading scholars on legal ethics in this country, dare I say, around the world with the exception of today's speaker. We're prepared to have one stray outside of the school. Our students have had a required course in this topic for years and discussed issues of ethics and professionalism pervasively in their time here at the school. Let me turn the floor over to my fabulous colleague, Richard Devlin, who will say a few words of welcome and introduction to the rest of you. Please enjoy. So it's pretty obvious that Kim is on some cold medication when she used the word fabulous associated with my name. So I think it's only cold medication. So I've been invited to introduce our guest today and the initiative is meant to be Jocelyn, but Jocelyn's got a poor voice at the moment. So she's asked me what I do and I'm delighted to have this opportunity. The only problem is that our guest has a 21 page resume. Which sometimes looks like some of the resumes I think some of the students submit for their law firm applications. So the question is, what do I pick from this? So I'm going to just pick a few highlights from your resume. It might take us all afternoon. But the basic background is that Professor Fortney has her Masters of Laws from Columbia. Then she liked the Academy so much when she went on to do her doctorate again at Columbia. Having sort of succeeded at Columbia she went off to Texas Tech University starting off as an assistant professor and then moving her way up over a 10 year period to being the interim dean for a year. She may have got wise on the virtues of deaning and didn't go for it full time. You'll see there's a little gap between Susan and him here. And as that leaves Texas to become the hard Lichtenstein Distinguished Professor of Legal Ethics and the Director of the Institute for Legal Study of Legal Ethics at Hofstra University in New York which is why she's so close to Halifax. And this is her destiny always to end up in Halifax. I could sort of add a few other things. She has three books and some of this may be of particular interest to those who are currently in practice. The first one is Legal Malpractice Law. So Problems and Most Importantly Prevention. So clearly a proactive thinker. Secondly, a Concisory Statement of the Law of Governing Lawyers. And then thirdly, I thought this one is very interesting. In pursuit of attorney work-life balance. And it's not fictional. It's actually a real boot, guys. So best practices for management. So starting something to look forward to. There is a long list of honors and awards both as a researcher and as a teacher. She has, I know, taught 19 different courses. I'm trying to imagine Kim trying to talk my colleagues and myself into teaching one new course per year. So over the course of the year she's teaching 19 different courses. So clearly a scholar, a researcher, a teacher who has much to share with us. And will today talk about management-based regulation of law firms, proof, and possibilities. Susan Fortman. Thank you. I appreciate it. Well, I appreciate that kind, generous introduction. I am absolutely honored to be here this afternoon. And to deliver this Wickwire lecture that's named in recognition of Ted. I saw it was Frederick, but now I know it's Ted Wickwire. And reading his background, I was impressed that not only did he serve the Barrister Society, but he also was a dedicated community servant connected to the law school. And also someone that was instrumental here with the Legal Aid Commission. And so that's very impressive. And so I, as I mentioned, I'm very, very honored thanks to Dean Brooks, to Richard Devlin, the law faculty that are here, people that I've met today. Also the representatives of the Barrister Society, the President, Daryl Pink. I appreciate all of you welcoming me. And I have to commend the people that are at the law school as well as the Barrister Society for the manner in which that they are approaching issues related to the delivery of legal services. Rather than bearing their head in the sand, as some jurisdiction, sometimes my own United States, various states have done, I think that you as a group and your representatives that work in this area have been very, very proactive. We'll use that word throughout this next hour. And looking at these radical changes in legal profession and what's the proper response. And you're fortunate when you go through this examination process in having people that are leaders in the field like Richard Devlin, the people at the Barrister Society. And so I think as Canadians, people that are here connected to this process, you should be very proud as to the way that they're undertaking this initiative in examining what's going on. And just to start with, as Professor Devlin mentioned, I'm going to be discussing management-based regulation of firms and largely drawing on work that I did in Australia. And so with that, I want to get you involved a little bit and we'll make this interactive. Typically when I teach large groups or conduct professional development programs, I have the responder units that way people can't fall asleep on you. And I know it's about 4.30, 4.45. So we won't have responder units today, but I'll ask you to raise your hands on this one question. Because what I'd like you to do is to consider what comes to mind when somebody mentions changes in the legal profession in Australia. So maybe you could just have a showing of hands. How many people think of Wiglas Barristers in federal court? Okay, nobody. How about... Oh, somebody. All right. You go to... You wake up in the middle of the morning thinking of Wiglas Barristers, right? Okay, but you've heard about it. All right. How about... Okay. Law firms selling stock in public offerings. All right. And how about the third? Lawyers systematically managing their practices. So a few of you, people maybe who've done work in the area. Well, what I base this on is there's a radio program some of you may have heard of in the U.S. typically on this radio program that's called Ask... Let's say Ask Ask. Don't... Oh, no. Wait, wait. Don't tell me. They have these quiz kind of questions and typically each of the answers presents something somewhat farcical and one of them's correct. In this case, all three of these are correct. So what we now have in federal court in Australia are Wiglas Barristers. When I was looking at this, I appreciated the fact that there is a four-page report that talks about attire and they say that it's a brief description of attire in federal court. So that's true. It's also true. Some of you have known about the firms that have gone public and so the first one was Slater and Gordon, followed by two others. That got a great deal of attention and play in the legal profession and in business communities. But the one that has gotten less attention, but in my opinion, is far more noteworthy is the movement towards management-based regulation of lawyers and it's this requirement that lawyers implement management systems within their organization. And so this actually goes back to the legislation that allowed lawyers to basically allow non-lawyers to have ownership interest in a firm. And this has developed over a period of time. But when there was legislation that allowed lawyers to bring in non-lawyer owners without restriction, there was a concern as to what would happen and what would that do to the ethical requirements that are imposed on lawyers, what our standards are. And so what we ended up with in Australia were provisions within their legislation to lay concerns about non-lawyer ownership. And basically what you get when you have these incorporated firms who now can bring in non-lawyer owners is three main requirements that I have on the screen. So your first requirement is that if you're one of these incorporated firms that have limited liability and also the opportunity to bring non-lawyer owners, you have the requirement that you appoint a person. A point person is a legal practitioner-director and it is up to that person to both identify and report professional misdeeds within the organization. But also it is that person's responsibility to implement and maintain what are called appropriate management systems. And the point of this third requirement is to have systems in place to ensure basically that any provision of legal services comply with the requirements of the law. So that's the basic three requirements under the legislation. And basically what we see is the statute itself set forth these requirements but did not really define the meaning of appropriate management systems. So what does it mean? We don't know, but what we had in New South Wales was a very creative regulator. Some of you may have met by the name of Steve Mark. He's visited here before and is coming back. He basically worked with practitioners to develop these ten objectives of sound legal practice. And it was working with people in the field what are the stakeholders, the practitioners, representatives of the malpractice insurance carrier, the law society to identify objectives of sound practice. And the point of these objectives was largely to address concerns that typically arise in client complaints and complaints that get processed by the regulator. So it was the regulator working with stakeholders to determine what are the objectives that should be met for a practitioner or firm to demonstrate that they have in place appropriate management systems. And so that was the first thing that the regulator did with these stakeholders. Then the second thing was to come up with a way of evaluating whether those objectives have been met and what they developed was this regulatory regime that involves a self-assessment process. And what was developed out of this consultation was a self-assessment instrument that covers these ten objectives. And the point of that self-assessment instrument was to allow the legal practitioner-director on behalf of the organization to go through a self-examination process and evaluate what is going on within the organization, what they have that meets the objectives, and what do they need to do to improve what they have, particularly if they determine something is lacking. And that they go through this self-assessment process using the instrument. When they do so, they basically are rating their compliance on the scale of non-compliant all the way through compliant plus. And it's really up to the director to just look at what is basically their organization and whether those controls they currently have comply with the objectives. And just to give you an idea of what the objectives are, the ten of them that there are, basically are ones that those of you that are in practice are familiar with, having competent work practices, a objective dealing with communication, something dealing with the process for liens and file transfers, documentation of fees and cost disclosure. So that's a few of the objectives. And then the last ones you see are also things that every practitioner is familiar with, including covering things like conflicts of interest, records management, supervision, and the proper handling of trust accounts. So that's the basic objectives. And so what you have then is a process where the firm works through these objectives and reports to the regulator. And the idea is to do it periodically. They started with once a year, and the idea is then for this process to be repeated. And the hope is that the practitioner, when he or she is working through the form, that this self-examination will allow them to learn from the process. And that's why it is now referred to as education towards compliance. The point is that the entire process now gives the firm, so it could in some ways force the firm's representative to engage in this kind of self-examination and go through the rating. And then if they determine that something is lacking, then they have the window to work with the regulator to improve, to get their house in order. So putting that together, it is education towards compliance. So it's focusing on more of prevention and mitigation, and that's why the program in New South Wales is viewed as being a kind of prototype for what is called management-based regulation of firms. And so this prototype is considered to be proactive because instead of swooping in after lawyers have violated some particular rule, the idea is that the regulator is educating the practitioners so they know what's required and can improve what they do. And so what has happened in Australia is that this started in New South Wales, and then what it did was to move into the other states in Australia, to Queensland, Victoria, and what we've seen is that each jurisdiction has done something a little differently. What we see in Queensland is that they've been, I think, very, very forward-thinking in not only having the one self-assessment tool, but developing a number of self-assessment tools for practitioners, and all of those are available online if you're interested in looking at them. So we have the other jurisdictions in Australia that now have gotten on board, and in addition, people like me who do empirical research have been very interested in what has happened in Australia and then starting with the first study on the New South Wales system. We see that the researchers now have gotten a good deal of play in terms of their study. And one study that I want to mention is one conducted by Dr. Christine Parker. What that study did was to focus on complaints rates involving the incorporated legal practices that went through this self-assessment process. And you see on the screen that I've put the results, the two key results from that particular study, and this was just basically crunching the numbers. And you see that based on the numbers, that the complaints rates for these incorporated firms that went through the self-assessment process went down by two-thirds, two-thirds after they completed the self-assessment process. I mean, that is a dramatic reduction in the number of complaints. So that speaks to education towards compliance in the way that self-examination can contribute to people getting their house in order and hopefully then not having the same number of complaints. And then there was also the aspect of the study that compared the number of complaints involving these incorporated legal practices and other firms. And you see that the self-assessed firms that went through this particular process, that the number of complaints were one-third compared to firms that did not go through this process. Very, very notable finding as well. And as I mentioned, this particular study, these results have gotten a great deal of attention. They got my attention because what the study didn't do is provide the why. Why did the complaints rates go down? And the researchers made the point of saying that they weren't... We could all speculate on the reason why complaints rates went down, but that wasn't one of the issues that they were looking at. So later in 2012, I designed a study to really focus more on the why. The why did complaints go down? What was the effect of implementing these... First of all, requiring the self-assessment process and the implementation of management systems. What I designed was a mixed-method study. So the idea is to survey as many people as possible that were impacted, so we conducted a survey of all firms that had two or more solicitors who had completed the self-assessment form. And then in addition, and we had a 40% response rate on that survey, but then a survey only gives you so much information. You really want the opportunity to ask follow-up questions, which you get in the other part of the study, which are the interviews. And so with an Australian professor, we conducted 41 studies of directors who had gone through this self-assessment process. And one thing that we attempted to do, both with the survey as well as the interviews, is to try to figure out that connection between the self-assessment process, the ethical norms within the organization, the conduct and culture within the firms. So one, I think, key question in trying to figure out what that connection is is just to ask the firms specifically what steps did you go through to complete the self-assessment process. And so I have those results on the screen. So the question that was specifically posed was, you know, what did you do in connection with completing the self-assessment process? And you see that 84% indicated that they had reviewed firm policies. 71% went beyond just reviewing them, but revised their firm systems, policies and procedures. Close to half, 47% actually adopted new systems, policies and procedures. 47, excuse me, 42% indicated that they strengthened firm management all the way down to 6% who went as far as actually hiring a consultant to assist the firm in developing their policies and procedures. So this gives you an idea as to the steps that they went through. And so when you look at these steps, you can better appreciate that from a risk management perspective that the improvement of these systems and controls is what helps explain that huge reduction in the complaints that were registered against firms that went through the self-assessment process. I think that a noteworthy finding here related to firm size, because what I determine when you analyze the numbers and do cross-comparison, cross tabs, is that there really was no noticeable significant difference in the firms that had taken steps in firm size. So that's another way of saying that regardless of firm size, that steps were taken and hopefully the practitioners and the people they serve benefited from those steps. So that was one aspect of looking at the connection between the self-assessment process and the development of systems. Another thing was to actually ask the respondents what was their impression of the impact of the self-assessment process. And so there was a scale there and what I did was to try to then look at their responses and I grouped them in four areas. So the first group were those things that related to firm management and supervision. You can see that was the greatest impact. Moving down, they noted that there also was impact on client service issues. So less impact as a group when you analyze the results, but there still was impact related to client satisfaction, client communication. Less impact in the area of ethical conduct and leadership and the area that had probably the least impact was what I consider firm dynamics. Now if you compare these results, I think it makes sense because the self-assessment process as designed was focused on management systems. Therefore, doesn't it make sense that the impact that's going to be greatest is on supervision, risk management, firm management. What I thought was most interesting in the discussion with directors was that they saw many of them saw management different from ethics and that they thought of ethical conduct as being something different than just management of their practices and therefore they focused more in their responses on the impact on management including firm supervision and risk management and less on ethics. I saw this in other results too when it came to asking about ethics controls that were not covered in the self-assessment form. There were fewer, far fewer firms that had controls that weren't mentioned in the self-assessment process. So that leads one to ask the question whether firms were just using the self-assessment process as tick the box, just go through the motions. And so I asked a question on the survey that related to this. I asked how many agreed or strongly disagreed with the following statement. The statement was that the self-assessment process amounts to meaningless box ticking. For that inquiry, 12% indicated that they agreed or strongly agreed with that statement. And so what I saw by looking at those responses, putting them together, trying to analyze how this plays out is that the directors seem to fall on somewhat of a continuum when it came to analyzing the self-assessment process, the impact on the firm, and what it meant to them as a representative of the firm. And what I've done in an article I've written, I've talked about the continuum, but for our purposes I thought I'd use a diagram instead to in some way capture the way that firm directors might embrace this particular process. And from the interviews from the survey data, what I learned was that you do have the number that are going through the motions that are ticking the boxes. That appears to be the smaller number. Then when it comes to embracing this entire process, you have a larger percentage who now are looking at this process and seeing its value when it comes to complying with the requirements of the regulator, complying with requirements of clients. Because increasingly those of you that are in-house know that clients now are imposing more requirements when it comes to management systems and controls within the organization. So that's a larger number. You have a percentage who also now are looking at this from the standpoint of risk management and are implementing management controls in order to lower their exposure to negligence claims. But the most interesting to me when it comes to the lawyers who have truly embraced this, they're the lawyers and their firms that see having management systems as a way that they distinguish themselves in the marketplace. It's what may be considered the business imperative to developing management systems. And this has occurred typically with midsize and larger firms in Australia. What I learned in New South Wales is that for the purposes of tenders, of beauty contests, that now firms are using their management systems to sell themselves to these prospective clients and to distinguish themselves in the marketplace. Some of them have actually sought now certification that's provided by the International Standards Organization. And so to me, they're the ones that clearly have embraced the development of management systems as a way of merging good ethics and good practice and good management. So to put this together, I think that all indications from my study and the earlier study conducted by Professor Parker is that this management-based regulation is successfully providing these firm directors, first this incentive to examine what they're doing, the tools to do so, and the authority to make changes within the organization. In effect, it's a matter of going to one's peers and saying the regulator is making us do this. We may not have a good system for conflicts, controls, but now this is something we need. That could be done in a larger organization. It could be done in a firm that has a solo or a couple of solicitors who need to go to their paralegal. I thought this was interesting in one of my interviews that a director indicated that the requirement for the self-examination gave that director the ability to go to the paralegal staff and say, we need to clean up what we do. And so in this case, it gave the person really the authority to make changes within the organization. As far as the director's perspective on this being a learning process, getting back to education towards compliance, the majority indicated that they learned from the process and 65% indicated that it helped them solve problems. And so putting this together, I think that in so far in Australia, starting in New South Wales, moving into the other states there, that you have a good system. And the challenge now is to make that good system better. And I think that the way they do so is by expanding the educational outreach and other aspects of what they're doing. And so I've made recommendations on how they can make those changes in terms of Australia, but I also think that the recommendations can help inform what other jurisdictions do as they consider management-based regulation. Here in Canada, different provinces, including your own here in Nova Scotia, are considering regulatory changes to respond to developments in the delivery of legal services. And what we have seen in the other provinces is that there's been a good deal of attention to alternative business structures and questions raised as to the best approach for dealing with alternative business structures if they're allowed. Just last week, the Professional Regulation Committee for the Law Society of Upper Canada issued a report to their convocation that recommended continued exploration of alternative business structures and development of models for entity regulation. Here in Nova Scotia, the Bearsters Society is engaged in what appears to be a very thoughtful evaluation of both regulation and governance. They're doing so pursuant to a strategic plan that I think is concise and informative. And that strategic plan, many of you may know, states two goals. And I'm going to state them slowly for the students. One is transforming regulation and governance in the public interest. And secondly, enhancing access to justice here in Nova Scotia. Those are the stated goals of the strategic plan. Impressive goals. I'm also, I think, taken by the manner in which they are approaching the process because it's very deliberate in inviting stakeholders to participate. We have here Daryl Pink and Victoria Reese. Some of you know that Victoria is the Director of Professional Responsibility for the Bearsters Society. And she's completed a 70-page plus comprehensive report. And it's called Transforming Regulation and Governance. And that report draws heavily on the great work of distinguished scholars and researchers like Professor Devlin. And I commend to you that report. Please read it. I think it concisely analyzes developments and concerns related to lawyer regulation and the role of the Bearsters Society. And I think it also does an excellent job. I'm not just, you know, trying to be complimentary. I'm calling it like I see it. It does a really good job opposing questions for consideration. It ends with a number of steps that should be taken, and they include adopting a proactive approach with lawyers and law firms that involves education and engagement and possibly the creation of an alternative management systems approach. And secondly, allowing firms the room to establish appropriate management systems that fit their practices. And that is meaningful because it's a recognition that one size does not fit all. And what the society has done in terms of being, I think, inclusive in this process is to invite feedback. And so I pulled for you the page on the website where you have the link to this consultation report that Victoria has written. Very well done. I once again encourage you to read it. And you also have a link to a survey instrument. And those of you that are practitioners, if you haven't done so, that survey instrument is worth completing. It gives you an opportunity to weigh in on these issues and for your feedback to be considered. So please do consider submitting your responses in response to this invitation. Now, as your counsel for the Barrister Society and other interested parties are exploring these different possibilities, what I'd like to do is share some recommendations as to what I would ask you to consider as you're evaluating what you do. And this is based on my work on the Australian experience. And so the first recommendation that I have for improving or designing a management-based regulation is to look at the role of the regulator and the possibility that the regulator is wearing different hats and how that plays out. One thing that I learned in particular in the interviews less in the survey is that there were directors that perceived somewhat of a problem with being candid on self-assessment forms with the regulator. It was that if you have the regulator as both an enforcer and an educator, then you may not be as inclined to disclose problems you have within your organization. And some very sophisticated directors recommended that the roles be divided. I know that Professor Devlin's have written a little about this idea of different roles served by the regulator, but here my recommendation for Australia in improving their systems and for other jurisdictions that are considering management-based regulation is to split the roles so that the personnel that are involved in the self-assessment process, the educational role, are different people, different arm of the office than those that are involved in complaints handling. And one thing that came through in an interview was just how this perception plays out in terms of the director's response to communications from the office. In New South Wales, the Office of Legal Services Commissioner used a distinctive color of stationery. And the practitioners associated that color of stationery with the complaint being lodged against them. So they pick up the envelope, it's that color, and what happens? Their blood pressure goes up because they immediately think a complaint's been filed against me or somebody at my firm. And so what this director said, one way of separating those roles is just to have a different color of stationery for the educational arm versus the enforcement arm. But so this is an example, really, of how dividing up the roles of the regulator could make a difference. And basically the educator is there to help, not to swoop in on people who are not necessarily in compliance, is to help them get into compliance. And in the words of one practitioner, the message should be that the only failure is the failure to learn. So that's recommendation really one, going to the role of the regulator. Another recommendation that I'm making is to take this education towards compliance to the next level. They've done a good deal, but more could be done in terms of providing these practitioners more guidance on what needs to be done. I got a great deal of feedback as to the interest in resources that practitioners were interested in. They wanted more assistance to be provided. And I think from the standpoint of the regulator, the regulator's response may be, well, all that sounds good, but it costs money. And so what I encourage those of you that are thinking about costs associated with providing more education and assistance is to compare the costs associated with providing assistance, being proactive, and what that compares to when it comes to adjusting and handling complaints. And what I'd suggest is that it's more economical in the long run to help avoid complaints, help practitioners stay out of getting in hot water as opposed to having someone go down the wrong path and then have to handle the complaints after the harm's already been done. And so there's various steps that could be done to provide this additional assistance. Recommendations from directors would include a comprehensive website that would have various links, the use of electronic newsletters, seminars, workshops, individual consultations. The directors were very interested in having the ability to call someone up and get guidance on what they needed to do. They wanted more in the way of templates. And once again, I think that if we're serious about educating practitioners, then it's a matter of investing in developing these kinds of workshops and resources to assist the practitioners. So that's recommendation two. Another practical recommendation relates to the form and content of the self-assessment instrument. And this is where, both on the survey as well as in the interviews, we got a good deal of feedback related to the way that the instrument should be designed. And one takeaway is that you want to design this form in a way that it just doesn't lend itself for box ticking. And one way of doing that would be to require more of a narrative than just having people rate compliant or through non-compliant or compliant plus through non-compliant is to force the respondent to do a little more when it comes to completing the form. Now that may take time and that's been one criticism of the process is that it does take time and this could take more time to require something descriptive as opposed to just checking the box or ratings. But if you basically required this description the first time through, then later you could ask the respondents, the directors, just to update what they provided. So that's one possibility, is change the form. Another thing that was very clear is that there needed to be different forms for firms of different sizes. Even though they, the Australians have taken the position that appropriate management systems means that what's appropriate for your firm, what the directors in smaller practices believed and many of them articulated was the concern that this form was designed for larger practices and that it wasn't really covering the nature of their practice. So as you're developing a management based regulation system one thing to consider is different instruments from firms of different sizes. Another possibility is to expand the coverage of the form itself. As I mentioned before the form that's used in Australia now, New South Wales and the other states largely covers client type of concerns with no coverage, effectively no coverage of matters related to duty of the courts and issues related to the dynamics of the firm relationship. So one thing to consider is to help directors consider these other issues by integrating those other issues in the instrument. And one self-assessment tool that does that is a self-assessment instrument that was developed for the Canadian Bar Association by Amy Salson who is teaching this semester at University of Ottawa and some of you know Amy. She's done an excellent job in developing this self-assessment instrument that is available and I have the link on the screen. And basically what that covers is not just client concerns but non-client concerns including equity within the organization duties beyond those duties to the client. So I'd encourage you to look at that particular instrument. One, as we think about instruments that are available my question would be when it comes to let's say the Canadian Bar Association instrument is how many lawyers will voluntarily go through the process? We'll go to the link, go through the process. Will they do it? Will they do it because they heard a lecture say this is a good idea? My concern is that lawyers need a push. We have limited time, limited resources and without a push, without incentives we may not have enough interest for people to devote the time and energy to go through the self-assessment process. So what I'm hopeful of is that we will have interested parties and decision makers try to develop different incentives so that lawyers are more inclined to go through self-assessment and to devote time to improving their management systems within their organizations. Now in Australia that push involved allowing non-lawyer owners and that legislation that I mentioned before. So the push, the incentive became the new legislation that required that lawyers implement management systems. So as other jurisdictions are considering the way they can encourage lawyers to go through self-examination, the possibility might be to include this kind of management-based regulation self-assessment process in any changes any new legislation let's say that allows alternative business structures. So that's a possibility is the features of management-based regulation get integrated in some kind of legislation that allows alternative business structures. Another possibility for integrating management-based assistance or regulation is to look at a kind of diversion program for lawyers that are struggling with management and practice controls. And so what we have in the United States in about half of the jurisdictions is a form of diversion for what is characterized as minor misconduct. And the idea is that if the screener of the complaint evaluates the complaint that has been filed against the lawyer and the screener determines that the issue that's involved is something that would qualify as minor misconduct and the screener can make this referral to a diversion program. And the purpose then is for the lawyer to stay out of the complaint side of the office and instead work on improving the way they handle their affairs. These diversion programs in the US started with assisting lawyers that were struggling with different types of impairments such as substance abuse and now some of the diversion programs have expanded to just generally assist lawyers that have issues related to their practice management. Here in Nova Scotia once again you should be proud that you do have a lawyer's fitness to practice program that allows for this kind of diversion better term for lawyers that have some kind of capacity issue so that there's a question as to their capacity to practice that they can go to the fitness to practice program as opposed to going through the regular complaint side. And so my suggestion is as you evaluate management based regulation you consider expanding the availability of diversion so it's not just limited to lawyers that have some kind of capacity issue, but that it would be lawyers who are accused of some minor misconduct that would benefit from this kind of assistance where they improve what they do and hopefully avoid problems in the future. So that's a possibility in terms of a way you can integrate these management based features in what is currently done. Another possibility to consider is just providing more practice management assistance. That's where I said before that I think that the resources devoted to providing lawyers assistance pays off in the short run as well as the long run. And one thing that I learned from the time that I actually represented lawyers when I was still in practice and represented malpractice carriers is that some of the most sophisticated lawyers in practice were concerned about the way that different materials could be used against them specifically when I represented Texas Lawyers Insurance Exchange which was the bar-affiliated carrier in Texas. We developed a self-assessment tool a good 20 years ago and when we then rolled it out and encouraged lawyers to complete it the lawyers that were aware of were basically familiar with what happens in a legal malpractice case were concerned because they didn't want that instrument being completed today and tomorrow being used against them in a negligence case. And so going back to that experience I thought about how we encourage lawyers to go through the self-examination without fearing discovery when they later sued for malpractice. I explored that concern when I conducted an empirical study on peer review in law firms and in that empirical study that involved managing partners of firms with 10 or more lawyers in Texas 36% of the managing partners indicated that they would be more likely to conduct peer review if the results of that peer review were protected and 30% actually indicated that they didn't engage in peer review because they were concerned about discovery. So clearly there's some reluctance to engage in peer review to go through a self-examination process because you don't want the material used against you and so what I'm advocating and I have an article discussing this is a kind of self-evaluation privilege similar to what we have in the United States for medical peer review so that lawyers can go through self-examination the results then would be protected so that they don't have to fear how it could play out in a malpractice case that might be brought later so if any of you are interested in my draft of a proposed self-evaluation privilege please let me know what we have I understand here in Nova Scotia doing some work is currently there is confidentiality that's provided for information that is obtained through the risk and practice management program or through the lawyers assistance program and I suggest that that limited protection be expanded to cover material that is covered and developed in audits including self-audits so that you don't have to hire an outside lawyer to conduct the audit in order for the matters to be protected instead you could develop materials and have that protected if it's done in-house and then finally the incentive that I wanted to mention that is of most interest to me is the possibility of developing a kind of certification program for firms that want to be recognized for their management systems and this goes back to the work in Australia and the feedback that I got from the practitioners that wanted to use management systems to retain clients and to woo new clients could we develop certification programs so that lawyers that were interested in developing their management systems get the certification and that way it is something they do because they want to once again merge good management with good ethics so to put this together as I'm getting to the end of the session here I think that the bottom line for me is that this regulation of lawyers that is proactive really has made a difference and it is and the verb that I've used coincidentally that is the title of the Nova Scotia report that Ms. Reese has written is it transforms that relationship between the regulator and the regulated practitioners because now we no longer have a regulator who is basically coming in after the fact reacting to complaints rather through this proactive approach the regulator is partnering with lawyers and the point is to assist them in improving their management system so it truly is transforming the relationship between the regulator and the lawyers the practitioners from my standpoint I think that we have seen that the proactive system has made a difference we've seen it in terms of the quantitative data on the complaints going down I saw it in the findings from my particular study and I think there's a result that this proactive approach promises not only to reduce the number of complaints and liability claims but also it promises to promote client satisfaction and the quality of legal services and so to me it comes down to public protection and that's somewhat of the drum that I'm beating on this is that if we really want to make a difference long term it will help to rethink the relationship between the regulator and those regulated and to devote the resources to assisting lawyers to get their house in order now one thing that I've done since moving to New York has learned that all good things get captured in a cartoon typically it's the new cartoons out of the New Yorker and I think that often that a lesson can be concisely shared in a clever cartoon so I had to find a good cartoon to capture this and so this one I thought helped us think about being proactive versus reactive so that would be my take away for the students, for the lawyers is to really think about what difference it would make to invest the resources in being proactive and it clearly can all indications lower your exposure for complaints for liability claims there are all sorts of tangible and intangible costs associated with both of those you also have I think longer term the ability to save yourself the headaches associated with those complaints and finally I think in the words of one of the practitioners in Australia the other thing it gives you when you devote time to improving your management systems is the ability to sleep better at night so with that I want to thank you again for including me in this affair today it's been an honor and I think we have a little time for questions so thank you