The International Bar Association’s (IBA) 17th Annual Bar Leaders’ Conference was held from 22 to 25 May 2024 in Bucharest, Romania. President of the Law Society of South Africa, Joanne Anthony-Gooden attend the conference and compiled the following report.
The conference commenced with the welcoming address from the President of the Bucharest Bar Association, Professor Aurel Ciobanu. He informed delegates of the 200-year history of the Bucharest Bar Association, and shared they currently have 20 000 active lawyers in Bucharest.
During the first day of the conference, a panel was held with the theme: ‘2024 is “the global year of elections”. What should Bars and law societies do during national elections? Heads down or speak up? How can you participate with impact on important issues without being seen as politically partisan?’
President of the Law Society of South Africa, Joanne Anthony-Gooden and the Chairperson of the Legal Practice Council Janine Myburgh, attended the International Bar Association’s’ 17th Annual Bar Leaders’ Conference was held from 22 to 25 May 2024 in Bucharest, Romania.
The panel consisted of speakers from across the globe. Co-Chairperson of the International Bar Association’s Human Rights Institute, Anne Ramberg from Sweden started off the discussion by stating that a free and independent Bar is crucial. She added that lawyers must speak up on issues regarding human rights, and even more so in an election year. Ms Ramberg said that the independence of the judiciary is a core focal point and as lawyers, we must make sure that there is no threat to the rule of law. ‘Rule of law must remain paramount. All independent Bar associations should speak out on constitutional threats and should speak out on corruption and the abuse of power by government,’ she added.
Vice President of the Taipei Bar Association, Hung Ou Yang, said that in Taiwan, congress was trying to expand congressional powers to regulate government officials and there is conflict between congress and the executive. He said that there have even been allegations that the Bar Association is acting as a political party. He said that while there may be a negative political impact, lawyers must still speak up. ‘We are speaking up to ensure that the rule of law is respected and the IBA is the global voice of lawyers’, he said.
Vice President of the Taipei Bar
Association, Hung Ou Yang,
discussed the situation in Taiwan.
Co-opted member of the Credentials Committee and immediate past president of the American Bar Association in New York, Deborah Enix-Ross, said that in the United States (US) they were under pressure to replace democratic principles with an autocratic system. She said that there was a significant threat to the independence of the justice system. She added that the citizens of the US do not know how the government works and there is an increase of political polarization, adding that almost 25% of adults in the US cannot name one branch of government.
Ms Enix-Ross said that lawyers in the US need to maintain calm and build trust. She said the Bar Association has six points to focus on, and that lawyers should –
Co-opted member of the Credentials Committee and immediate past
president of the American
Bar Association in New York,
Deborah Enix-Ross.
Ms Enix-Ross closed off by saying that lawyers need to become a trusted source of information to protect democracy and the rule of law.
The Law Society of England and Wales Chief Executive, Ian Jeffery said the Law Society of England and Wales has taken the justice system to court for failure to provide for sufficient funding for legal aid, adding that the law society has a strong working relationship with the British Parliament.
Mr Jeffery noted that as political parties commence with launching their manifestos and campaigns, the law society must ensure that detrimental policies to the rule of law must be challenged. ‘The Law Society must be heard on key issues and not be heard as political partisan and not on political issues,’ Mr Jeffery said.
President of the Latin American Bar Leaders Association, Nuhad Ponce Kuri from Mexico said that people must be encouraged to use their vote for the good of the country. She continued to say that Mexicans under the age of 29 held 44 million votes but the youth were apathetic to vote. She added: ‘The Bar Association has launched a campaign among the youth to encourage positive voting and be conscious of their voting rights.’ She indicated that attacks on the judiciary and the rule of law in Mexico continue.
The first panel discussion of the International Bar Association’s’ (IBA) 17th Annual Bar Leaders Conference, where the panel consisted of speakers from left to right: The Law Society of England and Wales Chief Executive, Ian Jeffery; Co-opted member of the Credential Committee and immediate past president of the American Bar Association, Deborah Enix-Ross; Chairperson of the Law Society of Ireland and the IBA Bar Issues Commission, Ken Murphy; Co-Chairperson of the International Bar Association’s Human Rights Institute, Anne Ramberg; and Vice President of the Taipei Bar Association, Hung Ou Yang.
The IBA has undertaken a survey, as to legal education, best practices and well-being issues. In the discussion, ‘Well-being in the legal profession: The role of Bars and law societies in tackling the crisis’, practitioners were encouraged to have regular medical checkups and to educate themselves about emotional intelligence. Lawyers are most at risk for wellness issues due to the mental and physical risk factors. Well-being initiatives in the profession have become paramount and must be further considered and developed.
Issues of concern, include –
Lawyers need to be aware of the medical facts to encourage each other to seek professional advice and suicide prevention should be improved. During the discussion it was noted that there is a high percentage of practitioners who have identified the need for mental health assistance but do not get the support they need. Lawyers must not be ashamed to ask for help when they need it.
The topic of ‘Artificial Intelligence and professional ethics: Old wine in new bottles?’ was discussed on day two at the International Bar Association’s’ (IBA) 17th Annual Bar Leaders Conference. The panel from left to right are: Senior Vice Chair, IBA International Commerce and Distribution Committee, Riccardo Cajola; Australian Bar, Sydney, New South Wales, Vice Chairperson of the Bar Issues Commission Regulation Committee, Dominique Hogan-Doran SC; KPMG Singapore and IBA Section on Public and Professional Interest Council, Hanim Hamzah; Istanbul Bar Association, and Chairperson of the IBA’s Artificial Intelligence Working Group, Derya Durlu Gurzumar; Conseil National des Barreaux Paris President, Julie Couturier; and American Bar Association’s Washington Chairperson of the Bar Issues Commission Policy Committee, Steven Richman.
In the fourth discussion on the first day of the conference, the topic discussed was ‘How to improve Bar and law society engagement with the work of the IBA’. During this session, independent Bar associations were invited to familiarise themselves with the IBA’s website, including the IBA’s projects and Bar Issues Commission together with the Legal Policy and Research Unit’s flagship projects, which include –
As part of the IBA Presidential task force on AI, the Bar Issues Commission was tasked with reviewing the impact on regulatory and ethical rules regarding lawyers. Several jurisdictions have already issued guidelines and best practice commentaries relating to the professional conduct of lawyers. The panel was to provide a cross section of comparative responses by Bars and regulatory authorities to AI on the topic: ‘Artificial Intelligence and professional ethics: Old wine in new bottles?’
During the discussion it was stated that when using AI, all jurisdictions should introduce guidelines on –
As users of AI, legal practitioners need to ensure accountability and professional ethics. Practitioners have a duty to oversee the work done by AI and to ensure that there is transparency regarding the impact on fee structures and communications with clients. There is a human resource impact on the use of AI in the law practice, which could include possible confidentiality issues and job losses, but there must be a supervisory role when working with AI. Currently, in the US, a task force has been established in California to promulgate regulations and rules on AI in legal practice.
Regarding the costs of AI, the question asked was how do you pass on costs to your client, or should the costs be absorbed into the overheads of the law firm? The view was that the client could not pay for AI. Another item was the impact AI had on practice insurance, as well as the impact on the cost of profession indemnity insurance. One of the key questions asked was who would be liable if the data/information generated by AI was incorrect? This is a key issue for consideration and there must be proper terms and conditions and proper contracts in place on the use of AI in your legal practice.
Another point made was with the rapid developments in law, how would lawyers improve their soft skills and build their personal relationships with their clients and the judiciary.
It was also stated that AI creates a divide between lawyers who can afford AI and those who cannot, fostering a culture of inequality. Moreover, the cost of implementing AI in practice is not necessarily feasible for all practitioners. The smart use of AI by smaller firms can assist them to compete against the larger firms and there should be proper training for lawyers regarding the competency and accuracy of advice provided by AI.
It was explained that there are two types of AI, namely –
An issue, which remains is that algorithms are not 100% accurate and can be manipulated and one of the biggest questions are – who is checking the checker? Human verification and principles must remain in place regarding the checking and verification of information. Ethics remains a key issue. AI must, therefore, be used responsibly. The algorithms must continually be checked for consistency and accuracy.
Human rights and AI are two important issues and lawyers are the guardians of the rule of law and human rights need to be protected, including access to justice and the independence of the judiciary.
Also, lawyers retain clients by building in person relationships with their clients. Will this affect the way lawyers do business? It was stated that lawyers need to remain calm, confident and transparent in the ethical dealing with the use of AI in their practices.
In the session, ‘Who speaks for the Bar? Presidents, executive leadership or its members?’ it was stated that various Bar associations across the world have different protocols. Often, they have specific spokespeople for specific topics.
During the session, various countries were looked at:
It is a bedrock democratic principle that the legal profession must be independent of the state. But what about the way the legal profession and legal services are regulated? What exactly does it mean to be independent from the state and where does accountability lie? In the discussion titled: ‘Independent regulation of legal services under the microscope – current threats and opportunities for Bars and law societies’ delegates heard from Bar leaders in jurisdictions whose systems of governance have been, or are in the process, of being reviewed by the state, and learn how they are dealing with change or the prospect of change.
President of the Law Society of Scotland, Susan Murray said that the separation of power is fundamental to the independence of Scotland, adding that the rule of law is not taken for granted. She said that the Law Society of Scotland is a professional body for lawyers and the regulator, and they have set standards in the last 75 years, and they can authorise who can practice in Scotland. Ms Murry said that most of the legislation in Scotland was passed before 1980 and a review of the outdated and inefficient legislation governing lawyers is needed. She said that an independent review needs to be done.
In the discussion titled: ‘Independent regulation of legal services under the microscope – current threats and opportunities for Bars and law societies’ delegates heard from Bar leaders in jurisdictions whose systems of governance have been or are in the process of being reviewed by the state. From left to right: Member of the New Zealand Law Society, Frazer Barton; Member of the Law Society of South Africa, and Officer at the IBA Bar Issues Commission, Tshepo Shabangu; President of the Federation of Law Societies of Canada, Erin Kleisinger; and President of the Law Society of Scotland, Susan Murray.
Ms Murry said that in April 2023 draft legislation (Regulation of Legal Services Bill) was published by the Scottish Government. This draft legislation would improve processes and introduce stronger regulation, but it also created new powers for government to interfere with lawyers. It would essentially give government the power to censure lawyers and civic society and would allow government to have the power to appoint itself as the regulator. ‘This was immediately challenged by the Scottish Law Society and a new campaign was launched to educate lawyers and the legal profession to remain independent from the government’ Ms Murry said.
Ms Murry explained that the Law Society of Scotland made it clear that this draft legislation cannot be made into law as there is danger in what was being proposed. ‘The feeling within the profession was that this is an unprecedented imposition on the judiciary by government and that the Chief Justice went as far as to comment on the proposed legislation by stating that “this is a threat to the independence of the judiciary,”’ Ms Murry said. She added that if the Bill is passed in its current form, the judiciary would be open to political abuse.
Ms Murry reported that there was huge backlash and fierce opposition to the Bill and in January 2024 the Scottish Government did an about turn and confirmed via their Minister of Justice that it recognised the objections from the legal profession and judiciary and that it would agree and remove the government oversight provisions.
Ms Murry closed her discussion by stating that lawyers must never take the rule of law for granted and they must maintain the independence of the judiciary and freedom from political abuse is crucial.
Member of the Law Society of South Africa, and Officer at the IBA Bar Issues Commission,
Tshepo Shabangu with the President of the Law Society of South Africa,
Joanne Anthony-Gooden.
Member of the Law Society of South Africa, and Officer at the IBA Bar Issues Commission, Tshepo Shabangu said that there were several drivers for reform in South Africa (SA), which include –
Ms Shabangu added that the most significant reform in SA’s regulatory framework has been:
Ms Shabangu also gave information on other reforms in SA’s legal regulatory framework, namely, the dissolution of the statutory law societies on 31 October 2018 and the Law Society of South Africa’s governance structure includes nine provincial attorneys’ associations. The LSSA is a voluntary association and comprises of nine independent lawyers’ associations, the Black Lawyers Association, and the National Association of Democratic Lawyers. The LSSA through its constituent members represents more than 30 000 attorneys and approximately 6 500 candidate legal practitioners.
Ms Shabangu discussed the key difference between the LSSA and the LPC in terms of the LPA (see table below).
Law Society of South Africa (LSSA) | Legal Practice Council (LPC) |
Be the unified voice of the legal profession. | Represent public interest. |
Represents practitioners’ interests. | Regulates legal practitioners and practices. |
Provides a forum for practitioners to gather and deliberate. | Transformation of the legal profession and practice. |
Provides legal education training. | Develops policies and codes of conduct for practices. |
Provides practice management resources. | Disciplines practitioners and practices. |
Provides advice, practice support and information to legal practitioners, newsletters, notices, monthly magazine (De Rebus). | Accreditation and monitoring of legal education service providers. |
Lobbies government and other stakeholders on important issues. | Maintains database and record of legal practitioners and practices. |
Comments and makes representations on issues that affect the profession and the public. | Coordinates examinations and assessments for admission. |
Provides information on enhancement and maintenance of professional standards, and member benefits initiatives. | Enforces compliance with regulation, for example, Financial Intelligence Centre Act 38 of 2001 and issues Fidelity Fund Certificates. |
Ms Shabangu also gave a summary on some of the challenges experienced regarding the LPA and said that there has been some resistance from some quarters within the profession, including logistical issues in transitioning to the new regulatory framework. She said there were also challenges regarding adequate funding and resources for the LPC and there are some blurred roles between the LPC and the LSSA.
Ms Shabangu said that the question of independence within the legal profession has been a critical aspect of the reform debate. She also added that continued threats to the independence of the legal profession includes –
President of the Federation of Law Societies of Canada, Erin Kleisinger started off the discussion by stating that the Federation of Law Societies of Canada is the national association of 14 law societies, which are mandated by provincial and territorial law to regulate the 141 000 lawyers in Canada, as well as Quebec’s 3 900 notaries and Ontario’s 10 600 licensed paralegals in the public interest.
The role of the law societies was created by provincial or territorial legislation. They regulate the legal profession and are responsible for admission to the profession, discipline and continuing competence. The law societies are not representative organisations and are self-governing. The members of the governing body are elected by lawyers in that specific province. All the law societies have public representatives (non-lawyers) either appointed by the law society or by government.
Regarding the rules and regulations, Ms Kleisinger said lawyers adhere to rules of professional conduct and other regulations adopted by the law societies and the rules are enforced through random and targeted audits, complaints and investigation processes. According to Ms Kleisinger, law societies provide targeted guidance and intervention in high-risk areas. Law societies investigate lawyer wrong-doing and take disciplinary action as appropriate and the law societies always act in the public interest and not in the lawyer’s self-interest. Disciplinary panels in most jurisdictions include non-lawyers and, in most jurisdictions, elected or appointed governors (benchers) sit on discipline panels.
Ms Kleisinger informed delegates that in March 2022, the Government of British Columbia announced the intention to reform governance of the legal professions by creating a single legal regulator. Bill 21 – Legal Professions Act will establish a new regulator for lawyers, notaries public and regulated paralegals. This leaves open the possibility of new legal professions designated by regulation.
According to Ms Kleisinger in the new governing body, there will be a 17-member board of directors and of the 17 directors, there will be a slim majority of lawyers and five lawyers will be elected by and from the ranks of British Columbia lawyers and four will be appointed by board members. There will also be an indigenous council, which will consist of six to nine indigenous people.
Some transitional provisions include:
Ms Kleisinger confirmed that on 16 May 2024, Bill 21 was formally passed and become law after invoking closure and without public input. On 17 May 2024, the Law Society of British Columbia commenced legal proceedings, seeking declaration that Bill 21 is unconstitutional as it is interfering with the independence of the Bar.
The last speaker of the session was President of the New Zealand Law Society, Frazer Barton. According to Mr Barton ‘people are the most important and self-regulation appears to create the perception that lawyers are looking after lawyers.’
Mr Barton said that while some models for regulating and representing lawyers works well in some areas, it falls short in many others. He said that representing lawyers’ conflicts with the duty to regulate in the public interests. There is constrain in the ability to represent the interests of lawyers effectively and it affects how the Law Society is perceived and undermines trust.
Mr Barton spoke about the legal regulation in New Zealand, which is –
Mr Barton gave a background to the independent review and why the Law Society commissioned the same. He also discussed the recommendations given after the review, where the following was addressed:
Mr Barton stated that the Law Society accepted most of the recommendations, including the recommendation to establish a new independent regulator and an overhaul of the system for handling complaints about lawyers. The government has signalled that wholesale reform is unlikely to be a priority in the next three years. Changes that are being made include –
Joanne Anthony-Gooden BJuris and LLB (NMU) is the President of the Law Society of South Africa.
This article was first published in De Rebus in 2024 (August) DR 14.
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