Jonathan P. White is a Staff Attorney with the Office of Attorney Regulation Counsel for the Colorado Supreme Court. He was also featured in The Colorado Lawyer regarding the Colorado lawyer self-assessment program.

He is here with us today to talk in-depth about Colorado’s lawyer self-assessment program. This program is an initiative of the Colorado Supreme Court Advisory Committee’s Proactive Management-Based Subcommittee (PMBP).

Q. Jon, thanks for being here. Let’s begin with the basics for our readers. Your name, occupation and how long have you been there.

JW: Jon White, Staff Attorney, Office of Attorney Regulation Counsel, Colorado Supreme Court. I have worked for the office since November 2016.

Q. Give me a little history about PMBP. What’s the background of this proactive movement?

JW: This program, PMBP, really originates with a larger, international movement toward proactive practices by having regulatory bodies, so whoever oversees the licensing and discipline of lawyers in a particular jurisdiction, help lawyers meet their professional obligations. Traditionally, that regulation has been done in a reactive way, through discipline. The self-assessment approach is different. It takes a proactive approach and encourages lawyers to identify strengths and weaknesses in their practice with the goal of preventing problems before they arise.

The concept originated in New South Wales, over a decade ago. New South Wales, Australia, allowed non-lawyer ownership of law firms. There was a corresponding concern that allowing a non-lawyer who is not familiar with the Rules of Professional Conduct to manage and run a law firm may compromise lawyers’ ethical obligations.  

To respond to and address that concern, New South Wales created a requirement that law practices engage in self-evaluation to ensure that the firm has ethical practices in place to avoid problems.

What happened in New South Wales had really good results. Surveys showed that law firms there that completed self-assessments had fewer complaints. That data got other jurisdictions motivated to bring in proactive practice initiatives in regulation for the purpose of educating lawyers and helping them practice in a proactive, problem-avoidance manner.

That concept became known as or referred to as “proactive regulation,” and has been written about extensively by several professors including Ted Schneyer at the University of Arizona, Rogers College of Law, Ted Schneyer, along with  Professor Susan Fortney at Texas A&M University School of Law, as well as Laurel Terry from Penn State's Dickinson Law School. They have referred to this as “proactive management-based regulation programs” (PMBP or PMBR).

Q: How has PMBP developed in Colorado?

JW: Denver hosted the first international regulators workshop in May of 2015. The Office of Attorney Regulation Counsel co-sponsored that workshop along with the American Bar Association Center for Professional Responsibility and The Maurice Deane School of Law at Hofstra University. That day-long meeting consisted of regulators, lawyers, law professors, not just from the United States but also from Canada and the UK. They came together for the conference to clarify the value of having a proactive education and self-assessment program.

It was from that workshop that the Colorado Supreme Court Advisory Committee established, in the summer of 2015, a proactive management-based program subcommittee.

Q. Describe the subcommittee—what are the members’ backgrounds?

JW: The subcommittee is comprised of approximately 46 people, including lawyers and non-lawyers, with varied backgrounds -- everything from criminal defense, to professional responsibility, civil litigation, to appellate law.

Q. What did the subcommittee set out to do?

JW: After convening in 2015, the subcommittee’s first task was the development of regulatory objectives—that is, a set of objectives to articulate to lawyers and the public the Supreme Court’s objectives in regulating the practice of law in Colorado.  The regulatory objectives were reviewed by the Colorado Supreme Court Advisory Committee and sent to the Colorado Supreme Court for review, comment, and approval.  In April 2016, the Colorado Supreme Court adopted these regulatory objectives as the Preamble to the Rules Governing the Practice of Law. Colorado was the first state in the country to adopt such objectives.  

Objective #5, in particular, underscores a proactive approach: “Helping lawyers throughout the stages of their careers successfully navigate the practice of law and thus better serve their clients, through COLAP, CAMP and other proactive programs.” 

After developing the regulatory objectives, the subcommittee turned to creating the lawyer self-assessments as part of a proactive law practice program. The lawyer self-assessments are tools for lawyers to use to evaluate their practice. They cover ten core practice areas aimed at assisting lawyers in better understanding and complying with professional obligations as well as practices that are just plain helpful to good client service and office management. The assessment is framed as questions that lawyers use to evaluate their practice, with a compilation of resources related to each of the ten core practice areas.

Q. Describe the process for developing the self-assessment.

JW: The subcommittee formed individual working groups related to these ten core practice areas, with anywhere from 3 to 6 participants involved with each of those working groups.

The working group members spent several months reviewing, meeting and discussing the content and the form it should take. They created questions covering law practice and law office management to help lawyers. This process wrapped up at the end of 2016, beginning of 2017, which was about the time that I came on board. I reviewed the content as well and made sure there were no areas of overlap.

A number of the working groups identified educational resources that pertain to certain questions. I worked to add additional educational resources to that. The process led to  a PDF that is a downloadable and printable survey tool.

The print tool was finalized in the early part of 2017. This went through a beta testing process with several community volunteers. At that point, additional revisions were made.

Since May 2017, the subcommittee’s focus has been on developing an online survey platform that resembles the print, PDF version.

Q: How long would it take a lawyer to complete the assessment, start to finish?

JW: Based on personal experience, and from our beta testers who went through the print and online versions of this, I would say an hour to an hour and a half.

 Q: That’s a significant time investment; what’s in it for the Colorado lawyer?

JW: For any attorney, this assessment is a way to review your practice to make sure that you have systems in place that promote your compliance with the Colorado Rules of Professional Conduct. Maybe you’ve had these systems in place for years – excellent. But this is a way of making sure, really, that you have covered all of the bases and made sure that your practice has, as Rogers College of Law professor Ted Schneyer has coined it an “ethical infrastructure.”

What does this mean? It means: Do I have the policies and procedures in place to make sure that my trust account is reconciled annually? Do I ensure that my staff is aware of the duty to preserve client confidences? Do I assess when I bring in new clients that I really am competent to handle that representation?

So to answer your question, ‘What’s in it for a Colorado lawyer?’ It’s making sure that all the boxes are checked. If they are, great. If not, that’s OK too. The value of the program is that it allows a lawyer to reflect on what’s working and what’s not working.

If there’s an area where you feel you answered ‘no’ to the questions, and you say, that’s a  practice I should look at, this gives you the opportunity to implement changes in your practice to bring those practices into the daily routine of your law office. I definitely think that’s a big benefit here.

Certainly lawyers who are transitioning to solo or small firm practice and beginning to run their own firm, may find this particularly beneficial. However, I think it would be beneficial to anyone, at any stage of their practice.

For example, if I’m using a cloud-based storage for my client files, have I advised the client of that and have I looked into whether that information is encrypted by the cloud service provider if there’s some type of cyber-security breach. So it’s not just information for someone who is new to the practice or new to an area of practice should find beneficial. I think it’s a tool for all lawyers.

I would add that the subcommittee is exploring ways to incentivize participation in the program. Once it launches, we will look at whether we can work with lawyers’ professional liability carriers to provide a discount to the lawyer who represents that they’ve gone through the self-assessment process. We’ll also explore ways to do CLE credit for completing the online self-assessment. So we are looking at ways to incentivize completions.

Q: Let me present you with a more focused scenario.

JW: Of course.

Q: I’m a new lawyer. I just graduated law school four months ago. I see there’s a self-assessment tool and I hear my colleagues talking about it but I’m new to the practice of law. Would that self-assessment benefit me as a new lawyer?

JW: If you’re new to the practice of law, you’ve probably recently taken the required professionalism course. You’ve taken the MPRE. But it may not be fresh and you may not want to go back and review your outline. The practice of law looks different than the theoretical practice or the review of appellate law that you get in law school.

This is a way for you, as you’re setting up a trust account, to go in and make sure that you’re following proper procedures in setting up that trust account and keeping the correct documentation of trust account transactions. The survey would be an extraordinary valuable resource in that regard.

Similarly you have a duty to preserve client confidences. Two assessments in this consolidated survey deal with confidentiality and file management issues which go to the core of protecting the confidences of the clients you represent

As a new lawyer, this is a way to get you up to speed with issues that are common to lawyers at all stages of practice, whether its five years or 25 years. It’s a way to make sure, coming out of the gate, that your practice is on both a solid ethical footing and that you are delivering good client service. This can lead to lead to additional client referrals.

That’s why I think, as a new lawyer, I think it’s an incredibly valuable resource. Also, as a new lawyer, you’re looking to soak up wisdom from lawyers who have been practicing for years. This self-assessment, which has been the work product of a subcommittee of almost 50 lawyers, represents hundreds of years collectively of practice. Why wouldn’t you take a look at it?

Q: Let’s look at the other side of the coin. Let’s say I’m an experienced attorney with 15 years or so under my belt. Why would I take a few hours out of my day to go through this self-assessment if I’ve been practicing the same way for years and haven’t had any issues?

JW: If you feel confident in your practice, I would say “great.” Where the tool comes into play is you may think your practice covers every potential contingency. I still think it is worth looking at questions of best practices and rule requirements that dozens of attorneys have helped create and review your ethical infrastructure. I think we can always learn and ask ourselves “can I do this better?”

Q: So, truly, this is going to be not only an educational resource but also a learning tool for attorneys?

JW: Yep, exactly.

Q: How recently was this tool launched?

JW: Fall of 2017 – just in time for the holidays.

Q: I know you touched on this briefly as well but to be clear, when someone completes the survey, what happens to their answers and do they go anywhere?

JW: Those individual answers are essentially scrubbed from a personally-attributable information. There’s no information for anyone to recover as to what  answer a lawyer gave to best practice number four, for example. The Office of Attorney Regulation Counsel is not receiving individual user answers.

However, information that will be kept is general, jurisdiction-wide data: What questions are getting the most attention? What questions are getting the most ‘no’ answers? What sections of the survey are getting the most user responses? Etc. That information is in the aggregate and it’s anonymous.

So, there are no names attached to anyone who completed those sections. But the number of hits, for example, on a particular page, that information is kept so there’s a way for educational programs to be developed. Programs that effectively correspond to what lawyers in the community need and what areas of the survey got the most attention. The lack of an answer to a particular question could even indicate a need for more education around that topic.

It’s that type of aggregate, collective, but anonymous data that should help improve educational opportunities in the form of CLEs for lawyers in Colorado.

Q: The self-assessment is about to be kicked off but it’s obviously just scratching the surface of how attorneys can benefit from this initiative. Where does the self-assessment go after the program is launched and what types of projects are looking to have incorporated into the future of survey process?

JW: We are working with CBA-CLE to have short, one-hour to 90-minute lunch-hour CLEs, on a regular basis that hit on one of the 10 core practice areas. They have been an excellent partner in this process, as has the CBA itself. So if you take the assessment on conflicts of interest and you want more education about that, and you can go and get first-hand interaction and educational training and resources. That will happen once it launches.

In addition, down the road, these surveys are ripe for additional sections to be tailored to a specific practice area, such as family law or criminal defense.

I hope there is also a way to create software that allows not just for a one-time only use of the survey and report card to print or download; but also for you to go back and interface and interact with previous surveys, take a new survey, and look at new educational resources that have been generated in the past few months.

I’d add that we know other professions do this type of quality-building reflection. In medicine, they have a peer review process. I think the practice of law will only get better if there is similar interest and surveys and resources available for lawyers who want to undergo a self-assessment and peer review process. This is really just the beginning.

Last, once this launches, the subcommittee will continue to meet. One of the areas they are going to focus on is how to align the self-assessment process that a lawyer goes through on an individual basis with a mentor or a peer reviewer.

So, if, a lawyer just isn’t sure how he or she is doing in a certain area, one of the best ways we feel to address that is not just to have a link to certain resources in the form of articles or template forms from a professional liability carrier but to sit down with a practicing lawyer and talk about those issues.

There is a lot of potential here for the program and I am very excited about what it will look like. Not just after it goes live, but as we get feedback, as lawyers in the community evaluate and critique the process, making it a better survey and better tool for the community.

Q: Other than Colorado, are there any other states working on creating a program like this for their jurisdiction?

JW: Illinois is the only other state right now that has a program that is nearing completion. Illinois calls their program “PMBR,” Proactive Management-Based Regulation, as opposed to calling it a program.

Q: So what’s the distinction there?

JW: In Illinois, their program is not voluntary. Starting next year, Illinois requires completion of a self-assessment program for lawyers who do not have professional liability insurance. In Colorado, the self-assessment process is entirely at the lawyer’s self-initiation and self-motivation.

Q: From what you understand, does it appear that the proactive programs in each state are looking to accomplish the same objectives?

JW: Illinois sees it just as Colorado does. This is a way to promote competence.

Q: For you specifically, how did you get involved with this initiative and the subcommittee?

JW: As the staff attorney here. The subcommittee needed someone who could devote time towards reviewing content, adding content, and adding citations to the Rules of Professional Conduct. Also, the subcommittee needed someone working on platform design and promoting the program. My position as a staff attorney for the Office of Attorney Regulation Counsel was a good fit for that.

For me, on a personal level, I certainly value the program. It’s a simple idea and something that should become more commonplace in practice. Let’s make sure we’re avoiding problems. It is part of our professional obligation to deliver competent services, regularly communicate with clients, and to maintain confidentiality. Anything that helps further those ends is beneficial and certainly the idea of doing that on a proactive basis, by looking at your practice before a problem arises, to prevent problems, we need to do that.

Wrap-up: Thank you Jonathan for taking time out of your busy day to go in such depth about PMBP and the lawyer self-assessment program.