Solicitors and continuing professional development

The Solicitors Regulation Authority (SRA) have recently published a consultation seeking stakeholder views on reforming the continuing professional development (CPD) obligations on solicitors.

You can have a butchers at the consultation entitled “Training For Tomorrow: A new approach to continuing competence” here.

Given the ever changing landscape in which solicitors practise, the SRA feel that the rules on CPD are in need of a refresh.

As the SRA put it:

There can be no doubt therefore that continuing professional development […] is a necessary and important requirement for individuals and entities if they are to deliver competent legal services and meet their regulatory obligations.

The SRA highlight that CPD is currently viewed as a necessary evil to which lawyers pay lip service (let’s face it – they’d much rather be fee earning or playing golf / shopping for shoes – delete as appropriate). They’re probably right about that.

To try and make CPD more meaningful and relevant to individual solicitors, the SRA pondered, albeit briefly, whether making the rules more prescriptive would do the trick.

But no: less is more in the new trendy world of outcomes-focussed regulation.  The SRA decided to reject greater prescription for 3 reasons:

1. The wildly diverse needs of CPD between practitioners and areas of practice;

2. The fact that practitioners at different stages of their careers need different amounts of CPD; and

3. For reasons of buck-shifting. The SRA wants the firm entity for which the solicitor works to be responsible for managing CPD.

Maintaining the SRA’s apparent love of the number 3, they set out, yep, 3 options for possible reform:

Option 1 - a shift from procedural compliance to competence.
There would be no mandatory minimum number of hours that must be spent on CPD, or the type of CPD that must be undertaken. It is up to individuals and firms to decide what CPD needs to be undertaken to meet their regulatory obligations set out in the Code of Conduct. The emphasis is on self-reflection and all that jazz. This is the SRA’s favoured option.

Option 2 - regulations requiring solicitors to plan and reflect on their development.
Like option 1, there would be no mandatory minimum number of hours that must be devoted to CPD. Instead, solicitors would be required to reflect on their practice, identify their training needs and plan, implement and evaluate their training on an annual basis. The SRA would take a prescriptive approach in how CPD is planned, recorded and reflected on, specifying the format of a log that must be kept.

Option 3 - retain a minimum hours scheme with some modifications. 
This would involve retaining a mandatory CPD scheme for solicitors which prescribes a minimum number of hours of CPD that must be completed each year. The CPD would have to relate to the individual's current or anticipated area of practice, while allowing a wider range of activities to count as valid CPD.

The consultation window closes on 2 April 2014.

More tweaks to the Dangerous Dogs Act

From: BBC News 09/09/13:

Dog owners will be safe from prosecution under revised dangerous dogs laws if their pet attacks someone trespassing in their home - even if the "intruder" is doing a good turn.

Ministers say dogs cannot be expected to "ascertain the intentions" of those entering a property before reacting.

The clarification comes in response to MPs who are scrutinising proposals to update the law in England and Wales.

The government plans to extend existing laws to cover dog attacks in homes.

It is currently updating the controversial 1991 Dangerous Dogs Act.

Ah yes – one of the most heavily criticised pieces of legislation that has ever been enacted!

In fact, in the seven years following the original enactment, there were 35 editorial items in the press that used the Dangerous Dogs Act as an example of bad regulation. And just in case there was any doubt of the extent of the criticism, a very interesting article* I came across sets the record straight:

In public debate the DDA has become a synonym for any unthinking reflex legislative response to media hype. Indeed, the Government's own Better Regulation Task Force (BRTF), the official arbiter of good and bad regulation, has condemned the Act.

Back to the trusty BBC article:

At present, the act covers only attacks by dogs in public places and private areas where animals are banned from being - such as a neighbour's garden or a park.

[D]og owners will not be able to be prosecuted if the victim was trespassing in their home.

In a response to MPs on the Environment, Food and Rural Affairs Committee - which has made a number of recommendations to ministers - the government rejected the idea of a similar exemption in relation to attacks on people trespassing in gardens or outhouses.

"A child retrieving a ball from a garden, or a neighbour retrieving garden cuttings, should be protected from dog attacks," officials said.

I think the drawing the distinction between those trespassing within a dwelling with those trespassing elsewhere is a sensible one (particularly when you consider the scenarios of a friendly neighbour retrieving hedge cuttings or a child collecting a lost ball given above).

However, I’ve long thought that it should be mandatory for all dog owners to erect signage of a specific size which is featured prominently at all likely entrances of premises where a dog is kept.

I accept the point that it’s more likely for a trespasser to have ill-intent if s/he enters a dwelling (compared to just a garden, say) and it’s therefore logical for the Act to not apply should a dog attack subsequently take place. However, we would be on much firmer ground – from a good regulation standpoint – if any trespasser who went on trespass within a dwelling did so knowing that a dog was on the premises.

After all, all dogs have the capacity to be dangerous, but often times you don’t find out which ones actually are until it’s too late.

* Hood, C., Baldwin, R. and Rothstein, H. 2000. Assessing the Dangerous Dogs Act: When does a regulatory law fail? Public Law, Summer 2000: 282-305.

Facebook, Grooming and the Regulatory Mix

From the Guardian 09/03/10:

Senior police officers clashed with the UK's most-used social networking site today, accusing Facebook of ignoring worrying trends that it is providing a safe haven for predatory paedophiles by refusing to sign up to a "panic button" for children and young people.

Jim Gamble, chief executive of the Child Exploitation and Online Protection Unit (Ceop), was joined by the country's lead officer on homicide to tackle the site about its repeated refusal to sign up to a key safety practice adopted by many other similar websites.

The American-owned site has 23 million active users in the UK but refuses to display an official "panic button" that links users directly to Ceop to report suspected activities by predatory paedophiles.

Chapman, a convicted double rapist, posed as a young man called Peter Cartwright on Facebook and spent time grooming Ashleigh before the pair exchanged mobile phone numbers and agreed to meet. Ashleigh was raped and suffocated by Chapman, who dumped her body in a field near Sedgefield in County Durham last October.

Facebook has refused repeated requests by Ceop to include a panic button on its site. Information from the button is used to build intelligence reports on suspects which can become part of police investigations into paedophiles, rapists and violent individuals.

User education is key here. I’ve propounded the idea for greater use of panic button functionality before but that’s only part of the story.

Young, naive users are doing exactly what Ashleigh Hall did all the time. Re-examining the dangers of social networking at a grass roots level is what is needed – and exactly why I’ve been calling for online safety to be made part of PSE (or whatever it’s called in schools now) for ages.

There are also greater societal and parental issues brought into stark focus by cases like this – and better education of the risks is crucial here, too.

A more pro-active, ex ante means of regulating these situations must start with user education. While other elements of the regulatory mix can be added into the pot – such as code and law, from a Lessigian standpoint - a strong foundation of user education remains vital.

While profiling stalkers and groomers is a very important cog in the overall regulatory machine, over-reliance on it can also result in the ‘Fisher-Price Fallacy’ – the false sense of security that users are lured into by cloaking technology from which potentially serious harm can flow with a benign and innocent user interface. ‘Bad’ or ‘false’ security is worse than no security at all.

If user education breeds good judgement in society, that has got to be made a number one priority. Otherwise tragic stories like this will continue unchecked.

Mozilla CEO and bad analogies

From Right Side News.com 25/01/10:

Baker said she worried about "the increase in laws that make it difficult to run an open network," especially rules about content.

"You suddenly become liable for anything that gets downloaded, whether it's legal or not," she said. "If you said to a municipality, if you build a road, you have to guarantee nothing illegal happens on it - that's what's happening on the Internet now. So that's the kind of regulatory disruption that's going to have some long-term consequences."

Wacky hair-dos aside, I’ve nothing particularly against Mitchell Baker.  And yes, that’s despite her recent efforts in spearheading unreasonable demands in relation to the ‘ballot screen’ idea for Microsoft to include with further versions of Windows to better allow other browsers to compete on a level playing field.  Kind of.  As head of Mozilla, I guess that’s her prerogative. 

What I don’t get is why she’s come out with this ridiculous analogy, which crumbles to pieces on even the most cursory of glances. 

Finding the correct regulatory balance is one of the challenges in any sphere of modern life.  Governmental regulation can often overstep the mark and it must be kept in check.  My grievance with Baker is that her comments were wholly unsubstantiated – she didn’t even try and back her point up with examples.  Far from those ‘running networks’ being held liable, recent developments point the other way: that end users are being held more and more responsible for their contact rather than the organisations offering services to them through which their spurious behaviour is conducted.

ISPs continue to fly under the radar through the exception to liability under the heading of ‘mere conduit’ and just last week, the  outcome of the OiNK case saw the site’s creator escape the teeth of national regulators.

Regulation of the net is inevitable and vital.  Of course it shouldn’t be arbitrarily done and, where possible, competitive forces should be harnessed to regulate efficiently.  But Baker’s points were poorly made and not backed up in the slightest - which detracts from the underlying worthiness of the cause.

Trying to compare national regulators who seek to hold road builders responsible for the conduct of road users with situations on the internet is a terrible example.  This oversimplification does nothing to try and help find the correct regulatory balance and just makes Baker look a trifle silly – with or without that bizarre hair cut.

Panic Button Added to Social Networking Sites

From Tech Watch 07/12/09:

Facebook and other social networking sites have agreed to adopt recommendations drawn up by the government to provide a panic button on their web pages.

Bebo has already introduced this measure, which basically consists of a highly visible button that kids can click on to report offensive or inappropriate material.

The idea, which is something that the Child Exploitation and Online Protection Centre has been recommending for some time, was put forward by the government’s adviser on online safety, Tanya Byron.

Other guidelines will stress the need for sites to provide parental control options to better supervise their offspring’s online activities, and will also apply to chat rooms, instant messaging services and the like.

I’ve been advocating something along these lines for years. However, in my opinion, a butt which simply provides a means of reporting abuse does not go far enough and it should constitute more of a ‘stop-this-and-get-me-out-of-here-now’ function first and foremost. Reporting of the alleged abuse is surely secondary to stopping it in its tracks.

So, in addition to reporting abuse, pressing the button should also have more immediate functionality. For instance, a single press on it could bring up a window which overrides any window activity below and freezes input of new communication to the user’s account (be that messages, a chat conversation, items posted on a ‘wall’ and so forth.) This window could give the victim a chance to select very easily and quickly those contacts they wanted to stop all communication with – based on who they been in contact with most recently.

This would be much more preferable to just hitting the close button in the appropriate window as, while that would stop the abuse, the victim would still be subjected to witnessing it the next time they logged back in.

The window could prevent the perpetrators from successfully contacting them again at that point or offer a cooling-off period of a pre-defined period of time – perhaps over 24-48 hours. Either way, if the block is made permanent and they wish to do so, abuse could be reported to the service provider at this stage.

In this way, a stop or ‘panic’ button on social networking services could operate in a similar way to what I advocated in my dissertation for virtual worlds which allow for sexual activity between avatars:

Through the modality of code, avatars capable of engaging in sexual activities could be required to have a ‘stop’ function – essentially allowing teleportation or some other means of escape from the unwanted attention of another avatar. This means of regulation represents an ex ante rather than ex post solution – the victim need never be subjected to the trauma in the first place.

Surely this is the right way of regulating the problem of online abuse (in whatever form)? After all, it makes sense to take advantage of the fact the environment is a artificial binary construct which allows a level of regulatory efficiency to be achieved which real-world regulators can only dream of.