First published on slaw.ca
When the Chief Justice of Canada highlights global liberalization of legal services regulation, recognizes that our old monopolies are fading, says that the legal profession must embrace new ways of doing business and that the question is not whether our rules should be liberalized but how, even those most resistant to change must take heed.
On August 14, 2015, Chief Justice McLachlin addressed the Canadian Bar Association annual plenary in Calgary . In her remarks entitled The Legal Profession in the 21st Century, the Chief Justice suggested that the legal profession must ask itself three questions:
- First, where does the profession stand as it enters the second quarter of the 21st century?
- Second, what are the forces that have led to the challenges the profession is facing?
- Third, against this background, how can the profession move towards the newer world it seeks?
Not surprisingly, the Chief Justice addressed the first question, in part, as follows:
Statistics support the view that accessing the justice system with the help of a legal professional is increasingly unaffordable to most people. Nearly 12 million Canadians will experience at least one legal problem in a given three-year period, yet few will have the resources to solve them. According to an American study from a few years ago, as much as 70%-90% of legal needs in society go unmet . We all know that unresolved legal problems adversely affect people’s lives and, ultimately, the public purse. Among the hardest hit are the middle class – who earn too much to qualify for legal aid, but frequently not enough to retain a lawyer for a matter of any complexity or length. Additionally, members of poor and vulnerable groups are particularly prone to legal problems, and legal problems tend to lead to problems of other types, such as health issues .
These are important points. Legal problems are common yet most legal needs go unmet. The middle class, the poor and vulnerable groups all suffer unmet legal needs.
On the second question, the Chief Justice focused on the powerful effects of technological change saying that:
… the digital revolution and the modern social and economic forces it has unleashed are creating new modes of delivery of traditional legal services, creating new demands and expectations for meaningful access to justice, and eroding the fundamental assumptions upon which the legal profession of the past was built. This is compelling the legal profession to revise old patterns and approaches – to seek, in Tennyson’s phrase, “a newer world”.
As to the erosion of fundamental assumptions, the Chief Justice said:
Liberalization of the rules that govern the legal profession is rapidly spreading to other jurisdictions, like the U.K. and Canada. Recognizing this, the Canadian Bar Association recently launched a “Legal Futures” probe into the future of the legal profession, to help the Canadian legal profession remain relevant, viable and confident in the face of change. Everywhere, more and more, the profession is accepting that the old monopolies are fading and that the profession must embrace new ways of doing business. And increasingly calls are heard for law schools to adapt their curricula to these new realities. The question is not whether the rules governing the legal profession should be liberalized, but how.
On the question of how can the profession move towards the newer world, the Chief Justice offered the following thoughts:
- The first step is to accept the idea of change. Lawyers and judges need to stop fearing change. Rather, they must accept that change may be necessary. Change should not be seen as an evil, but rather as the source of new opportunities.
- [Lawyers] will need to develop strategies to cope with the fact that in the very near future, straightforward, out-of-court work will face brutal competition. They will need to use technology in creative ways. And it may be that they will need to accept that some tasks traditionally performed by lawyers can be out-sourced to non-lawyers.
- A … source of opportunity for the profession lies in expanding service to sectors that may not have benefited from legal services in the past. Many communities have traditionally been underserved in terms of legal services. Some suggest that the way of the future lies in cutting back legal services. A better way may be to find ways of delivering legal services to people who need them but have traditionally not received them.
- Lawyers should not forget that those whose legal needs are not being met come in many forms. … These very different clients all have two things in common: They cannot afford legal services when delivered in the traditional way, and they cannot afford the disproportionate cost of pursuing a case in court. The consequences for legal businesses are plain: for businesses to thrive, they will need to find innovative ways to make their legal services more generally affordable.
- [Another] source of opportunity lies in collaboration with other lawyers and other professionals, in recognition of the fact that clients’ problems are often complex, polyvalent and incapable of solution on uniform cookie-cutter models.
In my recent article So many lawyers, so many unmet legal needs, I addressed the apparent paradox that so many lawyers are looking for work and so many legal needs are unmet and suggested that regulation was part of the reason that the legal services marketplace does not evolve to permit supply to address demand. The Chief Justice’s call for regulatory liberalization and finding new ways of delivering legal services to people who need them but have traditionally not received them is to the same effect.
As the title to this column signals, innovation is needed and is inevitable. For lawyers, the question is whether we will innovate or “be innovated”. The point of this column is to talk about different types of innovation. As a recent discussion with a bencher colleague made clear, what we mean by innovation in this context isn’t always obvious.
Of course, some innovation is big and transformative. One example is artificial intelligence. The Globe and Mail recently reported on Ross, the app which uses IBM’s artificially intelligent Watson computer to do legal research. Scary stuff perhaps but the potential to directly deliver some lower cost legal services is obvious. Another innovation is the use of large business processes to deliver legal services. Some sneer at “commoditization” and reject the idea that lower cost services may be desirable, even necessary, in some contexts.
But some innovation is simpler and not necessarily transformative, at least from the perspective of practising lawyers. For example, we know that there are substantial civil needs in society that are not addressed by lawyers yet the lawyer’s monopoly extends to areas unserved by lawyers. Allowing others to serve these legal needs may not cause an explosion of legal services – but neither will it materially affect the legal practices of those who do not now serve those legal needs.
While it may seem surprising, the areas of legal services reserved to lawyers in England are limited to only six areas of legal activity essentially being appearing before the courts, conducting litigation, transfer of land and certain other property by instrument, probate activities, notarial activities and the administration of oaths. Other than wills writing which is controversially not a reserved activity in England, these six areas are quite consistent with the principal areas of private practice for individuals in Ontario namely criminal law, family law and personal injury (the litigation practices) and real estate and wills/estates (the solicitor practices)
Another example of simple innovation arises from the observation that our current regulatory system only permits practices owned by licensees and legal aid clinics to deliver legal services to the public. There are many organizations in society that are dedicated to serving vulnerable and other communities. It would be innovative, for example, to permit the CNIB to provide relevant paid legal services to the blind and partially sighted Canadians. The value of this approach is demonstrated by the pro bono legal services now delivered by Pro Bono Law Ontario’s Children’s Hospital Projects which provide relevant legal services to sick children and their families where and when needed.
A further area of non-transformative innovation is better and expanded service delivery by existing legal practices. A study released in July 2015 by the English Legal Services Board and Solicitors Regulation Authority entitled Innovation in legal services distinguishes between “radical” innovation and other innovation in the following categorization:
- Service innovation – the provision of new or significantly improved services to clients
- Radical service innovation – services new to the market and introduced before competitors
- Innovation in service delivery – significant changes in the way services are delivered to clients
- Strategic innovation – implemented a new or significantly changed corporate strategy
- AMT innovation – implemented any advanced management techniques (AMT) such as knowledge management systems, Investors in People, etc
- Organisational innovation – implemented major changes in organisational structure such as the introduction of team-working or outsourcing of major business functions
- Marketing innovation – implemented changes in marketing strategies or channels
While we often think that innovation only means fundamental change like Watson/artificial intelligence, many important innovations are evolutionary within existing businesses rather than revolutionary. And of course, innovation is the product of many factors. Competition is one factor and especially competition, or potential competition, from other innovators. Expertise and money are also factors. The consequences of failure and the prospects for success are others. Regulation can constrain innovation by limiting innovative competition and by limiting the human and economic resources available for innovation.
The Innovation in legal services report mentioned above provides evidence of the effect that regulation has on innovation. Steve Brooker, Director of Research for the Legal Services Board, summarized some of this in his presentation to the International Conference of Legal Regulators held in late July in Toronto. As Mr. Brooker noted, the research showed that ABSs are 13-15% more likely to introduce new legal services than other types of regulated solicitor firms and that legislative change and regulatory change are the two most commonly cited drivers of innovation. Mr. Brooker also observed that the research shows greater innovation in the unreserved areas with 43.5% of unregulated providers being owned by non-lawyers, 10% of revenue being generated from innovative products compared to 5% of revenue for solicitors firms and with 2.3% of revenue being spent on branding/marketing compared to 1.6% for solicitors and 0.5% for barristers’ chambers.
We are challenged by the Chief Justice to embrace change. As a matter of professionalism, we should be vitally concerned that the public have access to legal services. Allowing others to provide legal services is part of the answer. Allowing and encouraging innovation from current legal practices to address currently unserved legal needs is another.
Some lawyers resist change because the consequences of change may not be positive. Competition, especially innovative competition, carries the prospect of loss. But trying to ensure that change does not occur is ultimately a pointless exercise. Change will happen. New forms of supply and unserved demand create inexorable pressures. My view is that it is in the interest of the legal profession and in the public interest that innovation happen within the legal profession so that the legal profession does not wither in the face of change. And it is in the interest of the legal profession and in the public interest that others be permitted to do what can properly be done by others.
While attending the CBA annual conference, I had the benefit of attending a presentation by Jonathan Smithers, the new President of the Law Society of England and Wales (the representative body, not the regulator). Jonathan’s background is conveyancing and land law. He heads the residential property team at Cooper Burnett in Kent and was previously Chair of the Conveyancing and Land Law Committee at the Law Society. His presentation centered on the ABS experience in England and Wales. While indicating that it was too early to judge the ultimate effect of ABS liberalization, Jonathan’s view was that ABS is not likely to be the source of transformative change to access to justice nor a source of harm to the public interest or the interests of the solicitors. Rather, Jonathan was confident in the ability of able solicitors to innovate and compete and accepting of the necessity that they must do so. Most significant to me was the message that the simple fact that new innovative entrants are permitted has caused existing solicitor practices to step up their game and innovate. His confidence in English solicitors and his obvious professional and business expertise were impressive.
The Chief Justice is one of many voices calling for innovation. The voice of the Chief Justice is, of course, particularly authoritative but can only be persuasive. It is for our self-regulated profession to decide through our governing bodies what change is appropriate. But as the Chief Justice said, the question is not whether to change. The question is what change is appropriate.