Management Based Regulation

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Long title: 
Proof and Possibilities: An Empirical Examination of Management-Based Regulation
Fortney, Susan
Author(s)' contact information: 
Hofstra University, New York, USA
Conference title: 
International Legal Ethics Conference VI
Conference location: 
City University London

Twenty years ago Professor Ted Schneyer emphasized the role that “ethical infrastructure” plays in influencing lawyer conduct. Legislators in the state of New South Wales (NSW) in Australia took the pioneering step of including an “ethical infrastructure” requirement in the statute allowing lawyers to incorporate their law practices. The legislation requires that incorporated law practice (ILP) appoint a director to be generally responsible for the management of legal services provided by the ILP. Second, the statute provides that the director must ensure that “appropriate management systems” (AMS) are implemented and maintained to enable the provision of legal services in accordance with obligations imposed by law.
To guide firms with complying with the statutory requirements, the Legal Services Commissioner for NSW worked with various stakeholders to develop an “education toward compliance” approach in which the ILP must complete a self-assessment process (SAP). Because this approach focuses on prevention and mitigation, Professor Schneyer describes the NSW program as a prototype for “proactive, studying and implementing proactive management-based regulation of lawyers.”
Early research revealed a significant reduction in the number of complaints involving firms that completed the SAP. To explore the reasons for the reduction in complaints, as well as other effects of the SAP, I conducted a mixed method empirical study. I will discuss survey findings and recommendations for improving the SAP. The thrust of the recommendations is to build on the positive track record of “education toward compliance” approach to regulation.

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