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Earlier this month, I was fortunate to appear on the closing panel at the International Conference of Legal Regulators<\/a>\u2018 2021 Virtual Conference<\/a>. The premise of our panel<\/a> was that regulatory innovations are taking place in many different countries, and we should decide whether this is a good thing or not.<\/em><\/p>\n 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.<\/em><\/p>\n \u2013 \u2013 \u2013 \u2013 \u2013 \u2013<\/p>\n When I was reading over the description of this session, one line in particular jumped out at me: \u201cShould everyone be embracing some form of innovation?\u201d<\/p>\n I want to try answering that by reference to what we\u2019ve just heard, because my<\/a> fellow<\/a> panelists<\/a> are<\/a> telling us something important about what\u2019s happening not just in their own countries \u2014 reforms that authorize regulatory sandboxes, alternative business structures, and paraprofessional programs, among other things \u2014 but in the legal services sector worldwide.<\/p>\n What\u2019s going on in all these places is really a return to first principles in legal regulation. These jurisdictions are asking themselves questions like, \u201cWhat\u2019s the purpose of legal regulation? What are we trying to accomplish here?\u201d<\/p>\n 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: \u201cWhat\u2019s your purpose? What are you here to do?\u201d And what I usually hear back is some variation on, \u201cWe are protecting the public.\u201d I think many of you probably use that phrase, or it\u2019s in your institutional mandate somewhere.<\/p>\n And I think it\u2019s a really interesting answer, because it then allows me to ask an important follow-up question: \u201cOkay. And what are you protecting the public from<\/em>?\u201d<\/p>\n That leads to a number of responses, which all tend to revolve around a common theme: \u201cWe are protecting them from unscrupulous <\/em>providers<\/em> of legal services. We are protecting them from incompetent<\/em>\u00a0purveyors<\/em> of legal assistance.\u201d<\/p>\n Okay. Good answers. I think we\u2019d all agree that it\u2019s pretty important to keep the unscrupulous and incompetent away from people whom they could exploit and abuse.<\/p>\n But see, here\u2019s where it gets interesting. Because traditional legal regulation, having answered that question, then makes a fundamental error.<\/p>\n Traditional regulation says, \u201cWe want to protect the public from the unscrupulous and incompetent. And here\u2019s how we\u2019re going to do it. We\u2019re going to divide the world into two groups: lawyers, and everyone else.\u201d<\/p>\n So they divide the world into these two groups, and they say, \u201cLawyers: we\u00a0presume\u00a0you to be scrupulous and competent. Everyone else: we\u00a0presume\u00a0you<\/em> to be un<\/em>scrupulous and in<\/em>competent.\u201d<\/p>\n Now, I put it to you that this is a category error. Traditional regulation takes one question \u2014 \u201cHow do we keep the unscrupulous and incompetent away from people?\u201d \u2014 and answers a completely different question, by saying, \u201cHere are lawyers. They\u2019re fine. Everyone else is out.\u201d<\/p>\n It\u2019s an error because you and I and everyone else here today knows two things are true:<\/p>\n I don\u2019t think that\u2019s a blasphemous observation. I think that\u2019s reality.<\/p>\n 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<\/a> about how effective those things are. But at least we\u2019re doing them. We favour lawyers with the presumption of competence, but we test that presumption.<\/p>\n But legal regulation does not extend the same courtesy the other way. The presumption of incompetence and unscrupulous nature for non-lawyers is\u00a0absolute<\/em>. The prohibition is\u00a0absolute<\/em>. There is no process by which non-lawyers can try to rebut the presumption of their unfitness.<\/p>\n Except, that is, in England & Wales<\/a>. And in Utah<\/a>. And in British Columbia<\/a>. And in Arizona<\/a>. And in many other jurisdictions \u2014 like Germany<\/a> and Australia<\/a> and Scotland<\/a> and Florida<\/a> and Ontario<\/a> and Washington<\/a> and Alberta<\/a> and North Carolina<\/a>. In all these places, regimes have been set up, or pilot projects are being proposed and established, whereby people who aren\u2019t lawyers are given the opportunity, the mere sliver of a chance, to say, \u201cHey \u2014 I know we\u2019re not lawyers. But we\u2019re ethical. And we\u2019re effective. And we can do some good for people.\u201d<\/p>\n And you know what \u2014 people need someone to do good for them. Because whatever the quality of the services lawyers are giving, most people aren\u2019t getting those services<\/a>. We know this. We didn\u2019t need study after study to prove it, although we have them now, too.<\/p>\n And so I say to regulators, \u201cOkay, you\u2019ve kept the public safe from the unscrupulous and incompetent. More or less.<\/a> So \u2014 is the public fine now? Do they have what they need? Is everyone happy?<\/p>\n \u201cAnd if that\u2019s not the case, then\u00a0have you done your job<\/em>? 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\u2019t 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<\/em> the public? Or are you also here to serve<\/em>\u00a0it?\u201d<\/p>\n 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.<\/p>\n There\u2019s a word for that. It\u2019s called \u201cinnovation.\u201d And yes \u2014 everyone should be doing it.<\/p>\n<\/p><\/div>\n\n