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Preliminary thoughts on Green, Groia and Trinity Western

(First published on slaw.ca)

In the last thirty years, Law Societies have been parties before the Supreme Court of Canada in thirteen cases according to CanLII[i] [ii]. Four of these cases have been decided in the last fifteen months[iii]. While others will delve more deeply into this recent jurisprudence, it is interesting to take a preliminary look at the way that the Court has understood the role, responsibility and jurisdiction of the Law Societies. It is noteworthy that the court has been divided in each of these four cases.

In Green v. LSM [iv], the Court upheld mandatory suspension for failure to comply with the CPD requirements of the Law Society of Manitoba. In Groia v. LSUC[v], the Court set aside a finding of professional misconduct for alleged in-court incivility in the context of criminal law defence. In TWU v. LSUC and in LSBC v. TWU[vi], the Court upheld decisions not to accredit Trinity Western University as a law school.

Green v. Law Society of Manitoba

The issue in Green v. LSM was the imposition of mandatory CPD together with mandatory administrative suspension for non-compliance. As a matter of administrative law, the Court addressed the standard of review of Law Society rule making. Justice Wagner, as he then was, wrote for the majority. He said that Dunsmuir[vii] applied because it applies to “all exercises of public authority” and to “those who exercise statutory powers”. In concluding that deference was required in considering Law Society rules, Justice Wagner stated that “In the case at bar, the legislature specifically gave the Law Society a broad discretion to regulate the legal profession on the basis of a number of policy considerations related to the public interest. The Act empowers the benchers of the Law Society to make rules of general application to the profession, and in doing so, the benchers act in a legislative capacity.”[viii]

In his reasonableness analysis, Justice Wagner looked to the Law Society’s statutory mandate. He said at para. 29 that “the Act contains an expansive purpose clause that obligates the Law Society to act in the public interest” and that “[t]he meaning of ‘public interest’ in the context of the Act is for the Law Society to determine”. On the CPD requirement itself, Justice Wagner observed at para. 59 that “The educational standards in respect of CPD, as defined by the Rules, do not relate solely to the competence of lawyers. … these standards also protect the public interest by enhancing the integrity and professional responsibility of lawyers, and by promoting public confidence in the profession”.

Justices Abella and Côté dissented but not on standard of review. They would not have upheld the rule because it provided for mandatory administrative suspension for non-compliance irrespective of the circumstances and without discretionary authority to relieve against unfair application. Justice Abella’s analysis of the role of the law societies is of interest. As she put it at para. 80:

Law Societies therefore represent — and are dedicated to protecting — the core values of the profession. They also represent — and are dedicated to protecting — the public’s confidence that those values will guide the lawyers who serve them. While the primary goal of the Law Society is the protection of the public interest, it cannot do so without also protecting the ability of its members to practise law professionally. …

In Justice Abella’s opinion, mandatory suspension for non-compliance irrespective of the circumstances compromised public confidence in the lawyer’s professionalism. Justice Wagner, for the majority, was not prepared to accept the premise of Justice Abella’s conclusion as Mr. Green had generally attacked the rule itself and that “In framing his challenge to the Rules in this way, Mr. Green wrongly assumes that the Law Society will not take its duty of procedural fairness seriously and provide for an appropriate procedure that is responsive to the particular facts and the reasonable expectations of the parties.”[ix] [cite]

What is of interest generally is that the Court in Green concluded that the Law Society is a public authority exercising a broad legislative discretion to regulate the legal profession in the public interest. The majority and the minority agreed that the role of the Law Society requires focus on public confidence in the legal profession as well as on the competence and conduct of individual lawyers.

Groia v. Law Society of Upper Canada

In Groia v. LSUC, the Court considered an adjudicative decision rather than a conduct rule. The Court again addressed standard of review with both the majority and the dissenters concluding that deference was required. In their concurring reasons Justices Côté and Brown would have applied correctness review, but agreed with the majority that the Law Society’s decision could not stand. The live issue between the majority and concurring judges was whether deference was appropriate in respect of in-court conduct given the fundamental principle of judicial independence.

For the majority, Justice Moldaver wrote at para. 54 that “Crucial to the principle of judicial independence is the presiding judge’s power to control his or her courtroom. However, I do not see a deferential standard of review as threatening that power.” At para. 55, he wrote that “Courts and law societies enjoy concurrent jurisdiction to regulate and enforce standards of courtroom behaviour. A trial judge is free to control the conduct in his or her courtroom irrespective of the degree of deference accorded to a law society’s disciplinary decision by a different court.” Justice Côté, with whom Justice Brown agreed, concluded that para. 169 that “correctness review is required to ensure proper respect for the judiciary’s constitutionally guaranteed place in our democracy”.

As to the reasonableness of the finding of professional misconduct, Justice Moldaver for the majority held at para. 88 that “it is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted”. Justice Moldaver observed at para. 89 that “Many legal principles we now consider foundational were once controversial ideas that were fearlessly raised by lawyers. Such innovative advocacy ought to be encouraged — not stymied by the threat of being labelled, after the fact, as “unreasonable”.

Justice Moldaver advanced two reasons why legal error should not be the basis for of a finding unreasonable allegation of prosecutorial misconduct. The first at para. 90, which is resonant with Justice Abella’s dissent in Green v. LSM, is that “a finding of professional misconduct against a lawyer can itself be damaging to that lawyer’s reputation. Branding a lawyer as uncivil for nothing more than advancing good faith allegations of impropriety that stem from a sincerely held legal mistake is a highly excessive and unwarranted response.”[x]

The second reason at para. 91 is that:

… Prosecutorial abuse of process is extraordinarily serious. It impairs trial fairness and compromises the integrity of the justice system: Defence lawyers play an integral role in preventing these dire consequences and holding other justice system participants accountable by raising reasonable allegations. Finding a lawyer guilty of professional misconduct on the basis of incivility for making an abuse of process argument that is based on a sincerely held but mistaken legal position discourages lawyers from raising these allegations, frustrating the duty of resolute advocacy and the client’s right to make full answer and defence.

The second reason is also resonant with Justice Abella’s dissent in Green where she wrote that the Law Society must “[protect] the ability of its members to practise law professionally”. Justice Moldaver’s second reason emphasizes the importance of the duty of resolute advocacy and the right of an accused client to make full answer and defence which are of course essential to professional legal practice.

For present purposes, the significance of Groia v. LSUC appears to be that the law societies and the courts do have concurrent jurisdiction to regulate and enforce in-court conduct but that it is necessary that law society decisions not unreasonably stigmatize lawyer conduct and fully take into account the lawyer’s role in the administration of justice.

Trinity Western

The LSBC v. TWU and TWU v. LSUC decisions both address the decision not to accredit Trinity Western University for lawyer licensing purposes. The decision is unlike Green v. LSM in that law society rule-making was not in issue. The decision is unlike Groia v. LSUC in that a disciplinary adjudicative decision was not in issue.

The TWU cases are significant because they address the proper purposes of law society regulation and because the cases are different than Green and Groia in that the accreditation decision affected the Charter-protected freedom of religion of evangelical Christians rather than the legal system, accused persons and lawyers.

It is helpful to start with the dissenting reasons of Justices Côté[xi] and Brown in LSBC v. TWU which conclude at para. 273 that:

A careful reading of the LPA leads us to conclude that the only proper purpose of an approval decision by the LSBC is to ensure that individual licensing applicants are fit for licensing. Given the absence of any concerns relating to the fitness of prospective TWU graduates, the only defensible exercise of the LSBC’s statutory discretion for a proper purpose in this case would have been for it to approve TWU’s proposed law school.

In para. 66 of their minority reasons in TWU v. LSUC, Justices Côté and Brown conclude that “In light of the LSUC’s mandate, it is crystal clear that the provisions in By-Law 4 relating to the accreditation of law schools are meant only to ensure that individual applicants are fit for licensing” (emphasis in the original).

There being no claim that graduates of TWU would not be fit for licensing, this conclusion would have been dispositive if accepted by the majority.

Before considering the majority reasons, it is useful to set out some of the relevant legislative provisions. In the Legal Profession Act[xii] (the “BC LPA”)of British Columbia, section 3 provides that:

It is the object and duty of the society to uphold and protect the public interest in the administration of justice by

(a) preserving and protecting the rights and freedoms of all persons,

(b) ensuring the independence, integrity, honour and competence of lawyers,

(c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission,

(d) regulating the practice of law, and

(e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions who are permitted to practise law in British Columbia in fulfilling their duties in the practice of law.

In the Law Society Act[xiii] (the “ON LSA”) of Ontario, section 4.2 provide that:

4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:

1. The Society has a duty to maintain and advance the cause of justice and the rule of law.
2. The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
3. The Society has a duty to protect the public interest.
4. The Society has a duty to act in a timely, open and efficient manner.
5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

Statutory objectives

In their majority decision, Justices Abella, Moldaver, Karakatsanis, Wagner, Gascon took a broad view of the proper purposes in accreditation.

In paras. 31 and 32 of LSBC v. TWU, the majority expressed their view that “the LPA requires the Benchers to consider the overarching objective of protecting the public interest in determining the requirements for admission to the profession, including whether to approve a particular law school” and that “The legal profession in British Columbia, as in other Canadian jurisdictions, has been granted the privilege of self-regulation. In exchange, the profession must exercise this privilege in the public interest”. Their reasons in paras. 14 et seq in TWU v. LSUC are to the same effect.

Notably, the majority in LSBC v. TWU commenced, at paras. 36, with the proposition from Green v. LSM at para. 24 that the law societies should be afforded “considerable latitude” in their “interpretation of the ‘public interest’ in the context of [their] enabling statute”. The majority then noted in para. 37 the delegation by the legislature of aspects of professional regulation to the Law Society which has “primary responsibility for the development of structures, processes, and policies for regulation”. According to the majority “[t]his delegation recognizes the body’s particular expertise and sensitivity to the conditions of practice. This delegation also maintains the independence of the bar; a hallmark of a free and democratic society.”[xiv] This recognition by the majority of delegated self-regulation as maintaining the independence of the bar is of interest in light of Canada (Attorney General) v. Federation of Law Societies of Canada, [2015] 1 SCR 401, 2015 SCC 7 at para. 86 in which Justice Cromwell concluded that he did not “find it necessary or desirable in this appeal to address the extent, if at all, to which self-regulation of the legal profession is a principle of fundamental justice”.

The majority summarized their conclusion on proper purpose at para. 40 of LSBC v. TWU as follows:

In our view, it was reasonable for the LSBC to conclude that promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students were valid means by which the LSBC could pursue its overarching statutory duty: upholding and maintaining the public interest in the administration of justice, which necessarily includes upholding a positive public perception of the legal profession. …

In TWU v. LSUC, the majority said at para. 20 that:

In our view, the LSUC was entitled to conclude that equal access to the legal profession, diversity within the bar, and preventing harm to LGBTQ law students were all within the scope of its duty to uphold the public interest in the accreditation context, which necessarily includes upholding a positive public perception of the legal profession.

There are several purposes found to be proper by the majority. The first is ensuring equal access to the profession. The second is supporting diversity within the profession. The third is preventing harm to LGBTQ law students. The fourth is upholding a positive public perception of the legal profession.

The majority found support for the appropriateness of these purposes in the respective statutes in both the BC and the Ontario cases. In BC, the support was found in the statutory object and duty under the BC LPA to uphold and protect the public interest in the administration of justice by preserving and protecting the rights and freedoms of all persons and ensuring the competence of lawyers. In Ontario, support was found in the statutory duties to maintain and advance the cause of justice and the rule of law, to act so as to facilitate access to justice for the people of Ontario and to protect the public interest, all in carrying out its functions, duties and powers under the ON LSA.

The Chief Justice, in her concurring reasons, agreed that (i) maintaining equal access and diversity in the legal profession and (ii) preventing significant harm to LGBTQ people who might attend TWU’s proposed law school were statutory objectives. In his concurring reasons, Justice Rowe agreed with the majority and with the Chief Justice that “it was within the statutory mandate of the [law society] to consider the effect of the Covenant on prospective law students as part of its accreditation decision” as the Law Society “has a broad mandate to regulate the legal profession in the public interest”. His view was that the Law Society was “justified in considering the impact of the Covenant on prospective applicants to the proposed law school and, more generally, in considering the role of law schools as the first point of entry to the legal profession.”

In summary, I think it notable that the majority considered that s. 3 of the BC LPA and s. 4.1 of the ON LSA contained broad statutory purposes which could properly be considered in the accreditation decision. The majority applied these provisions in an expansive way considering the public interest, equality rights of law students, the effect of non-merit based admission policies on competence in the profession and the importance of diversity in access to and administration of justice.

Charter Values

A significant difference between the majority and the dissenters was the use of Charter values in the determination of proper regulatory objectives. As the dissenters put it in para. 270 of their reasons in LSBC v TWU, “[e]ven accepting, for the sake of argument, that it is beyond dispute that administrative bodies other than human rights tribunals may consider fundamental shared values, such as equality, when making decisions within their sphere of authority” (Majority Reasons, at para. 46), it is the LSBC’s enabling statute, and not “shared values”, which delimits the LSBC’s sphere of authority.” (Emphasis added)

In contrast, the majority held at para. 41 that:

Indeed, the LSBC, as a public actor, has an overarching interest in protecting the values of equality and human rights in carrying out its functions. As Abella J. wrote in Loyola, at para. 47, “shared values — equality, human rights and democracy — are values the state always has a legitimate interest in promoting and protecting”.

The Chief Justice accepted at para. 140 that “As the collective face of a profession bound to respect the law and the values that underpin it, [the Law Society] is entitled to refuse to condone practices that treat certain groups as less worthy than others”.

Doré and Loyola

Unlike more typical administrative law cases, the TWU cases are not just about whether the law societies acted for improper purposes. For the dissenters, the analysis could of ended there but did not.

For the majority, the Chief Justice, and Justice Rowe, it was necessary to consider whether Charter rights and freedoms were infringed by the refusal to accredit TWU and, if so, to consider whether such infringement was permissible.

The analysis of these issues in the four separate reasons in the two appeals is beyond the scope of this column because the intent of this review is to reflect on law society regulation generally rather than where Charter rights and freedoms are infringed by law society regulation.

So what do we learn from these four cases?

Green, Groia and the TWU cases conclude that a deferential standard applies in judicial review of law society rule-making (Green and Groia) and in judicial review of application of the rules in disciplinary (Groia) and non-disciplinary contexts (TWU).

While not new, Green and the TWU cases make it clear that the law societies have the delegated responsibility to regulate in the public interest. The law societies have significant scope in their determination of the public interest. The legislation which delegates responsibility to the law societies significantly informs the determination of the public interest. While the language is different from province to province, the effect of the legislative language is much the same.[xv]

Green and the TWU cases show that the law societies are entitled to consider specific competence, competence generally, diversity in the profession, non-discrimination in access to the profession, the administration of justice, public confidence in the legal profession and in the administration of justice and must consider the Charter and other rights and freedoms of persons affected by law society decisions.

The TWU cases show that the law societies are generally entitled to consider public interest implications in broader policy decisions and in narrower fact-specific decisions such as law school accreditation.

Groia shows, and Green suggests, that the courts will not defer to administrative or disciplinary rules that are seen as stigmatizes conduct that is not seen as worthy of sanction. The law society must be concerned about public confidence in the professional as well as in in the profession. The dissent in Green was on the basis that the mandatory suspension applied irrespective of the context. The majority did not accept that the rule was to this effect but did not challenge the idea that a rule providing for suspension in any and all circumstances would be unreasonable. The majority in Groia held that it was unreasonable to apply a disciplinary sanction to a good faith, but legally mistaken, position taken on behalf of an accused person.

Green, Groia and the TWU cases show that care must be taken by law societies to reflect on the impacts of their decisions on the professionals that they regulate, the clients served by those professionals, the public, the administration of and access to justice, and the Charter rights and freedoms of all persons.

 

The Chief Justice’s concurring reasons in LSBC v. TWU are her final contribution as a judge of the Supreme Court of Canada. I recommend her reasons to readers as a fitting final contribution.

While the Chief Justice accepted that general competence and diversity within the profession are proper objectives, she did not find them weighty in the particular case. Presumably, her view was affected by the fact that accrediting TWU would allow for additional candidates for licensing, especially from a religious minority, rather than excluding existing candidates.

At the same time, the Chief Justice noted the importance of religious freedom in this case as follows at paras. 129 and 130:

With respect, I cannot agree that the impact of the decision on the freedom of religion of members of the TWU community is “of minor significance”. The decision places a burden on the TWU community’s freedom of religion: (1) by interfering with a religious practice (a learning environment that conforms to its members’ beliefs); (2) by restricting their right to express their beliefs through that practice; and (3) by restricting their ability to associate as required by their beliefs.

These are not minor matters. Canada has a tradition dating back at least four centuries of religious schools which are established to allow people to study at institutions that reflect their faith and their practices. To say, as the majority does at para. 87, that the infringement is of minor significance because it “only prevents prospective students from studying law in their optimal religious learning environment” (emphasis in original), is to deny this lengthy and passionately held tradition. The majority seems to characterize the religious practice at issue in this case narrowly as “studying in a religious environment” (para. 67). In my view, the religious right at issue in this case is broader than that. It is not about merely studying in a religious environment — it is about studying in a religious environment where all members of the community have agreed, through the Covenant, to live in a certain way.

While honouring the freedom of religion, the Chief Justice nevertheless concluded at para. 146 that:

On the other hand, there is great force in the LSBC’s contention that it cannot condone a practice that discriminates by imposing burdens on LGBTQ people on the basis of sexual orientation, with negative consequences for the LGBTQ community, diversity and the enhancement of equality in the profession. It was faced with an either-or decision on which compromise was impossible — either allow the mandatory Covenant in TWU’s proposal to stand, and thereby condone unequal treatment of LGBTQ people, or deny accreditation and limit TWU’s religious practices. In the end, after much struggle, the LSBC concluded that the imperative of refusing to condone discrimination and unequal treatment on the basis of sexual orientation outweighed TWU’s claims to freedom of religion.

In a case like Multani, the claimant was vindicated because the school board could not show that it would be unable to ensure its mandate of public safety. In Loyola, we found that the limitation at issue did nothing to advance the ministerial objectives of instilling understanding and respect for other religions. This case is very different. The LSBC cannot abide by its duty to combat discrimination and accredit TWU at the same time.

I think it fitting that the last contribution of the Chief Justice as a judge of the Supreme Court of Canada was a full-throated affirmation of the constitutional rights and freedoms of all those affected by her decision and a willingness to make a difficult choice that recognized and affirmed their autonomy and dignity.

________________________________

[i] Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, Black v. Law Society of Alberta, [1989] 1 SCR 591, Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 SCR 869. Law Society of British Columbia v. Mangat, [2001] 3 SCR 113, 2001 SCC 67, Edwards v. Law Society of Upper Canada, [2001] 3 SCR 562, 2001 SCC 80, Krieger v. Law Society of Alberta, [2002] 3 SCR 372, 2002 SCC 65, Law Society of New Brunswick v. Ryan, [2003] 1 SCR 247, 2003 SCC 20, Finney v. Barreau du Québec, [2004] 2 SCR 17, 2004 SCC 36, Doré v. Barreau du Québec, [2012] 1 SCR 395, 2012 SCC 12 , Green v. Law Society of Manitoba, [2017] 1 SCR 360, 2017 SCC 20, Groia v. Law Society of Upper Canada, 2018 SCC 27, Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33

CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 is excluded from the count as it is about copyright rather than regulation of the legal profession.

[ii] As an articling student and as an associate, I worked on Black v. Law Society of Alberta. Decades later, I have been a Law Society bencher during the recent cases. Time passes amazingly quickly.

[iii] Green v. Law Society of Manitoba, supra., Groia v. Law Society of Upper Canada, supra., Law Society of British Columbia v. Trinity Western University, supra., Trinity Western University v. Law Society of Upper Canada, supra.

[iv] Green v. Law Society of Manitoba, supra.

[v] Groia v. Law Society of Upper Canada, supra. Full disclosure, I was a member of the Appeal Panel whose decision was set aside on appeal. I am advised by my friend and colleague Alice Woolley not to comment on this case. Out of respect, fear and affection, I having taken Alice’s advice and have attempted merely to describe relevant aspects of it.

[vi] Law Society of British Columbia v. Trinity Western University, supra. Trinity Western University v. Law Society of Upper Canada, supra.

[vii] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190

[viii] Green, paras. 19 and 22

[ix] Green, para. 55

[x] Justice Moldaver notable also observed at para. 93 that “When a lawyer alleges prosecutorial misconduct based on a legal mistake, law societies are perfectly entitled to look to the reasonableness of the mistake when assessing whether it is sincerely held, and hence, whether the allegations were made in good faith. Looking to the reasonableness of a mistake is a well-established tool to help assess its sincerity. … The more egregious the legal mistake, the less likely it will have been sincerely held, making it less likely the allegation will have been made in good faith. And if the law society concludes that the allegation was not made in good faith, the second question — whether there was a reasonable basis for the allegation — falls away.

[xi] Justice Côté’s positions in Green, Groia and TWU and Justice Brown’s position in Groia and TWU appear to suggest that they may take a more narrow, perhaps sceptical, view of law society regulation than do other members of the Court. Justice Abella’s position in Green and Groia suggests that she is particularly concerned about stigmatization of individual legal reputations.

[xii] Legal Profession Act, SBC 1998, c 9 as amended

[xiii] Law Society Act, RSO 1990, c L.8 as amended

[xiv] LSBC v. TWU, para 37

[xv] Section 3 of the BC LPA provides that “It is the object and duty of the society to uphold and protect the public interest in the administration of justice by (a) preserving and protecting the rights and freedoms of all persons, (b) ensuring the independence, integrity, honour and competence of lawyers, (c) establishing standards and programs for the education, professional responsibility and competence of lawyers and of applicants for call and admission, (d) regulating the practice of law, and (e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions who are permitted to practise law in British Columbia in fulfilling their duties in the practice of law.”

Section 3(1) of the Manitoba Legal Profession Act provides that the purpose of the Law Society is uphold and protect the public interest in the delivery of legal services with competence, integrity and independence.

Section 4.2 of the ON LSA, requires the Law Society to have regard to the following principles in carrying out its functions, duties and powers: a duty to maintain and advance the cause of justice and the rule of law, a duty to act so as to facilitate access to justice for the people of Ontario and a duty to protect the public interest.

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The Never-Ending Debate: What should be required in order to become a lawyer?

(First published on slaw.ca)

The qualifications required of new Ontario lawyers has been the subject of virtually continuous debate for generations. Starting in the late 1950s, being called to the bar required (i) a law school degree, (ii) practical training through the bar admissions course and (iii) an articling apprenticeship. The bar admissions course came to an end in the 2000s. A law practice program (the LLP) has recently been added as an alternative to articling. The qualifications debate continues with the focus now being whether articling and/or the LLP should continue and, if so, in what form. The central question today is what, other than licensing examinations and graduation from law school, should be required before the call to the bar.

The intent of this column is to provide context for current debate by focusing on the competence mandate of the Law Society and by laying out some of the relevant history and principles that may be useful in thinking about all of this.

My ultimate point is that this is a debate that will never end – because there are no perfect choices and the proponents of one option can always demonstrate frailties in the other options being considered. While it is tempting to press for radical change, it is very difficult to have confidence that the change will actually be an improvement. Keeping focused on the competence mandate, it seems to me the best approach is practical incremental change primarily designed to ensure that new lawyers are competent to serve the people of Ontario and taking care to see that candidates for licensing are treated properly.

A brief history of a relatively long time

Until 1957, the Law Society ran legal education and training in Ontario. After much controversy, an agreement was reached in 1957 whereby university law school education became a requirement. The articling apprenticeship continued. A bar admission course was established. According to the historian Christopher Moore, the establishment of the bar admission course “satisfied the benchers’ continuing requirement for practical training. It also pleased the universities by allowing them to narrow their focus to the purely academic teaching they preferred”[1].

For the next four decades, being called to the bar in Ontario required an academic LLB/JD, practical bar admission course training and exposure to the realities of practice through articling.

In the never-ending debate, the future of articling arose soon after the late 1950s reforms. In 1972, a recommendation was made to Convocation for the abolition of articling[2]. This recommendation was rejected and has again been rejected again on several occasions over the years.

By the late 2000s, the bar admission course had been entirely discontinued and two licensing examinations had been established, but articling continued.

With the substantial increase of candidates and insufficient growth in articling positions over the last 15 years, the LPP was added as an alternative to articling several years ago.

Whether the LPP and/or articling will continue and in what form continues to be debated.

The Mandate of the Law Society – why do we care about qualification to practice?

People who are served by professionals ordinarily need professional assistance because they do not have the expertise to serve themselves. They cannot assess whether someone else is professionally competent to serve them nor whether they have been properly served. This is the central reason that professional regulation exists.

Like all professional regulators, the Law Society has two central mandates; ensuring that members of the legal professions are competent and ensuring that members conduct themselves properly. These mandates are made clear in section 4.1 of the Law Society Act which provides that it is a function of the Law Society to ensure that:

all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide

The professional conduct mandate is pursued by establishing Rules of Professional Conduct, by dealing with professional misconduct by investigation and discipline and by promoting proper professional conduct by practice audits and reviews. Much attention has been spent in recent years on the conduct mandate recognizing that proper conduct is better attained by proactive measures rather than just by reactive disciplinary measures and by the recognition that the law firm policies, procedures and practices ae very important in achieving proper individual conduct.

The professional competence mandate may be thought of as having two aspects. The first is licensing, ensuring that entry-level competence is attained. The second is competence in practice, ensuring that competence is maintained and that specific competence is achieved for specific areas of professional work. Like the conduct mandate, there are a number of ways that the Law Society fulfils and can fulfil the competence mandate.

The Competence Mandate

The Law Society of Ontario has spent much time and effort reflecting on its competence mandate. Its 1994 Role Statement recognized the obligation to govern the profession in the public interest to ensure that the people of Ontario are served by lawyers who meet high standards of learning and competence.

In the late 1990s, the Law Society established two Competence Task Forces. The First Competence Task Force established a working definition of the competent lawyer[3] which is now reflected in the definition of a “competent lawyer” in Rule 3.1 of the Model Code of Professional Conduct and across Canada. As defined in the Model Code, a “competent lawyer” is “a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement”. The Model Code provides further particulars in its definition.

The Report of the Second Competence Task Force[4] proposed implementation of what it described as the “competence blueprint” which included focus on both pre-call and post-call learning. As the report said:

The post-call efforts of the profession to maintain and enhance its competence span a broad range of approaches, but virtually all of them engage education, whether it be through experiential learning, continuing legal education, self-study, or the pursuit of advice and mentoring. Pre-call learning is the foundation upon which a career long commitment to learning is constructed.

The bar admission course

Between the reports of the First and Second Competence Task Force, Convocation received and considered the Bar Admission Reform Report[5] which was expressly grounded in the Competence Mandate and the work of the Competence Task Force.

The Bar Admission Reform Report noted that the Bar Admission Course began in 1959 and that its then current form was mandated by Convocation in 1988 approving the “Spence Report”. Following graduation from law school, prospective lawyers undertook a three phase pre-call training program. The first phase was a one-month workshop-based practice skills program addressing professional responsibility and practice management, interviewing, legal research, legal writing and drafting, alternative dispute resolution and advocacy. The second phase was the articling year. The third phase was a three and one-half month seminar program focused on substantive and procedural law, lawyering skills, and how to complete transactions with written examinations. Attendance was originally mandatory but was merely “strongly encouraged” by 1998.

On delivery of the Bar Admission Reform Report, Convocation reaffirmed that there should continue to be “an effective and comprehensive bar admission education and training program” and that articling should be maintained.

To summarize, lawyers called to the bar in Ontario in the 1990s had three years of law school, twelve months of articling and four and one-half months of substantive, procedural and skills training for a total of over 16 months of post-law school legal training.

In late 2003, Convocation received the Report of the Task Force on the Continuum of Legal Education[6] which recommended continuation of articling for ten months but major changes to the bar admission program. Rather than substantive, procedural and skills training and assessment, a five week skills and professional responsibility program and assessment and two licencing examinations were approved. These licensing examinations continue as the Barrister and the Solicitor Examinations. In effect, the choice was made to test for substantive and procedural competence rather that to teach in those areas presumably on the basis either than law schools provided sufficient practical education and/or that students could learn enough on their own.

In 2007, Convocation established a Licensing and Accreditation Task Force which reported in January of 2008. In its consultation report[7], it was noted that the five week Skills and Professional Responsibility Program was reduced to a four week program in 2007 as a result of perceived repetitiveness within the learning modules. Ultimately, Convocation accepted the Task Force recommendation[8] that the Skills and Professional Responsibility Program be replaced with a pre-call five day pre-call professional responsibility and practice requirement integrated with articling and 24 hour of continuing professional development in the first two years after being called to the bar.

Since 2008, the five day professional responsibility and practice requirement has fallen away. Candidates are now required to pass the two licensing examinations and either to article or attend the LPP. The pre-call training in Ontario has been reduced from four and one-half months to five weeks to four weeks to five days and is now eliminated. The Barristers and the Solicitors Examinations remain.

To summarize, lawyers now called to the bar in Ontario have three years of law school, ten months of articling or the LPP and must pass the Barristers and the Solicitors Examinations.

The articling debate

There have long been debates “on the value of articling as a component of professional legal education and recommendations for change”[9]. As long ago as 1972, abolishing articling was proposed[10]. In 2008, the Licensing and Accreditation Task Force consulted the profession on this and other topics. As the Task Force reported in its Final Report:

Respondents overwhelmingly rejected the abolition of articling. They emphasized that a competent profession requires practical training before call to the bar. Articling should not be characterized as a barrier, but rather as a core component of the licensing process.

The nature of the articling debate changed by the late 2000s. Previously, the debate was mostly about the utility and variability of the articling experience. What caused the change was that the number of licensing candidates in Ontario has increased significantly over the last 15 years or so while the number of articling positions has not kept pace.

The substantial increase in the number licensing candidates

In 1972, the annual capacity of the Ontario law schools was in the range of 1,000 to 1,100 students[11]. By 2000, the number of first year law students admitted to Ontario law schools was essentially unchanged at 1,103 students[12]. For more than 25 years, the capacity of the principal gateway to the legal profession in Ontario was unchanged. That this was so is somewhat surprising given the increased population of Ontario and the resulting increase in supply and demand. Something had to give and it did. At the same time, something else happened, namely increased immigration and the acceptance that qualified immigrants had to be treated fairly in professional licensing[13].

From 2000 to 2010, the annual capacity of Ontario law schools increased by over 300 to in excess of 1,400 students. By 2015, the annual law school capacity was nearly 1,550 students[14]. After decades of essentially no change, the annual capacity of the Ontario law schools has increased by 40% over the last fifteen years.

During the same fifteen year period, a new source of licensing applicants opened up. In 2000, only approximately 100 Ontario licensing applicants came through the National Committee on Accreditation (NCA) having attended law school outside of Canada. By 2010, there were nearly 400 NCA candidates. There are now some 650 NCA candidates annually of whom approximately half are Canadians who obtained their law degrees outside of Canada.

Putting this information together, the last 15 years has seen a total increase from approximately 1,000 candidates annually to approximately 2,200 annually[15]. Approximately 45% of this increase is from increased Ontario law school capacity, approximately 25% is from foreign-trained Canadians and approximately 25% is from foreign-trained immigrants. That some 70% of this significant increase is from Canadians shows a significant demand for law school education that was not previously met. This is consistent with pent-up demand after the unchanged Ontario law school capacity over the prior 25 years.

The slower increase in the number of articling positions and the LPP response

Unfortunately, the increased numbers of candidates seeking articles in the late 2000s coincided with the 2008 economic crisis and its aftermath. During this period, larger firms cut back the number of articling positions. This didn’t help.

In any event, while the number of articling positions has substantially increased (to approximately 1,950 by 2016), there has been a gap for some time between the number of licensing candidates and the number of articling positions. It is also the case that, likely given the intense competition for articling positions, some of the increased number of articling positions are less attractive and even exploitative positions, including poorly or unpaid positions.

It was this gap between the supply of and demand for articling positions that was the impetus for the 2012 Articling Task Force which recommended the establishment of the Law Practice Program (LPP) as an alternative to articling. This recommendation was one of the three available responses. The first was to do nothing and accept that the number of articling positions practically limited the number of new lawyers each year. The second was to add a new pathway to licensing, namely the LPP. The third (which was the minority position) was to abolish articling in favour of a limited version of the LPP.

How to think about all of this

It is clear that the establishment of a second licensing pathway (the LPP) didn’t end the never-ending licensing debates. The LPP was only established as a pilot project. Perhaps inevitably when there was a prospect of ending the LPP, there was substantial opposition with a resulting Law Society decision to deliberate more generally on approaches to licensing.

While, as of the writing of this column, there are no proposals on the table, it is reasonably predictable that some or all of essentially the same alternatives will yet again be considered. One option is to continue articling and the LPP with or without reform. Another option is to eliminate the LPP in favour of articling as the only pathway. A third option is to eliminate articling in favour of the LPP in current or different form. A fourth option is to eliminate both articling and the LPP.

The point of this column is to reflect on what is, or should be, in issue in considering the various alternatives.

The competence mandate and fairness to candidates

There are, broadly speaking, two proper perspectives from which to consider these issues. The first perspective is that of the clients to be served by the lawyers that we license. This is the point of the competence mandate described at the outset. Ensuring that those licensed to practice law are competent to practice law is fundamental to professional regulation. Losing track of the competence mandate is unacceptable even if tempting.

The second perspective is that of the licensing candidates[16]. There are two aspects to this perspective. The first is that of candidates generally. For example, all candidates naturally prefer not to pay for licensing requirements especially after enduring expensive law school fees. The second is that there are differences between licensing candidates i.e. the second perspective is heterogeneous. These candidates’ perspective may be thought of as being about fairness; fairness to candidates generally, fairness as between candidates and fairness to specific candidates.

Like all hard problems, proper policy decision-making here isn’t about choosing between the two perspectives. Rather, both perspectives must be considered. However, it is important to recognize generally speaking that the point of licensing is to ensure competence and that the licensing requirement inherently places burdens on prospective licensees. How much burden is properly borne and how that burden should be shared are important questions.

The competence mandate

It seems to me that thinking clearly about the competence mandate requires reflection on the evolution of the licensing process over the last two decades. This evolution is essentially from a four and one-half month bar admission course in which substantive and procedural law and lawyering skills were taught and assessed to the current Barrister and Solicitor Examinations i.e. from teaching to just testing. While it is likely true that law schools generally place greater emphasis on experiential education than they did two decades ago, I’m not aware of good evidence that law schools are now training lawyers to practice law. Indeed, law schools disclaim this responsibility and mission.

For this reason, it seems to me that those arguing for an end to, or substantial reduction of, transitional training (whether through articling or the LPP) should face a heavy burden to demonstrate that proposed changes meet the competence mandate. Said another way, I don’t think it acceptable to have perceived fairness to candidates trump the competence mandate. Indeed, allowing incompetent candidates to enter practice is itself unfair to them.

It would be a terrible irony if the focus on the competence mandate in the 1990s was the precursor to a series of “reforms” the net result of which was to end all transitional training. First ending the bar admission program and then ending articling/the LPP is surely not consistent with the competence mandate.

As between articling and the LPP, it must be acknowledged that neither is perfect. Some articles do not provide proper training. The competence mandate requires that these bad articles not be permitted. We must accept that some articles are better than other articles with the result that the gain from articling is uneven. In contrast, the LPP provides its candidates with a generally consistent experience. The LPP provides both simulated experiences as well as work placements for real life experiences. Unfortunately, we cannot say whether the LPP is generally better at ensuring competence than most articles or whether the reverse is true.

So far as the competence mandate is concerned, there does not appear to be a cogent basis to say that either most articles or the LPP do not provide candidates with sufficient transitional training.

The fairness requirement

The fairness requirement is tricky. For example, fairness underlies the decision to adopt the LPP as a second pathway. It would be unfair to qualified candidates who cannot find articles (because the market doesn’t generate sufficient articling positions) to say that they cannot be licensed. Once licensed, finding work is a different matter. Yet adopting the LPP created a perceived unfairness by creating two classes of candidates. Of course, the alternative of abolishing articling to ensure one common pathway would impose a burden on those who would have articled by taking articling salaries from them and by increasing the total cost of the LPP which is borne by all candidates.

It seems to me that the fairness requirement must be addressed by recognizing that perfect fairness is impossible and that eliminating burdens for some will often impose burdens on others and by focusing on how to practically mitigate unfair burdens. In that spirit, some of the current advantages (the loss of which would be a burden) and the current burdens appear to me to be as follows:

  • articles
    • can provide:
      • valuable real world experience
      • increased prospects for post-call employment
      • a salary, which is particularly important given current law school tuition
    • are less accessible:
      • to students who go to law school in other countries and aren’t part of the “system” during law school
      • to new Canadians who may lack language skills and social capital
      • to racialized candidates
    • can be exploitive in terms of income, experience and sexual harassment
  • the LPP
    • can provide
      • good training, including simulated training
      • work placements which are generally, but not always, paid and which provide real world experience and increased prospects for post-call employment
      • introduction to Canadian culture and society for new Canadians who are not yet fully competitive in the legal labour market
    • does not generate revenue, unlike articles, and accordingly does not pay for itself and does not provide salaries for its candidates

The bottom line

I suspect that the great articling debate that has now spanned nearly five decades has not reached resolution because there is no good answer. Articling is imperfect. There are no clearly better alternatives. Our differing perspectives lead us to different conclusions because there aren’t clear answers.

If this is so, it follows that it would be better if we stopped trying to find big answers and instead started to work toward smaller pragmatic ways of reducing burdens and unfairness.

In doing so, I suggest that we should accept two primacies. The first is our competence mandate. Any proposed change must bear the burden of showing that the clients of newly called lawyers will be competently served. The second is that unfairness must be thoughtfully and effectively addressed. In this regard, we must distinguish between dealing with unfairness that must be addressed (such as exploitative articles and Human Rights Code violations for example) and throwing babies out with bathwater in well-motivated attempts to ensure that everyone is treated in exactly the same way.

_____________________

[1] Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1791-1997, pp. 259-260. It was the vice-dean of Osgoode Hall who proposed the establishment of the bar admission course. According to Christopher Moore, “[he] suggested that a post-LLB training program could even out the inequities that plagued the articling process”.

[2] Special Committee on Legal Education Report (aka the MacKinnon Report), 1972

[3] First Competence Task Force – Final Report, November 1997

[4] Second Competence Task Force – Final Report, April 1999

[5] Bar Admission Reform Report, June 1998

[6] Task Force on the Continuum of Legal Education Report, October 2003

[7] Licensing and Accreditation Task Force Consultation Report, January 2008

[8] Licensing and Accreditation Task Force Final Report, September 2008

[9] Articling Reform Sub-Committee Report, October 1990

[10] MacKinnon Report

[11] MacKinnon Report, p. 10

[12] Ontario Universities’ Application Centre www.ouac.on.ca/statistics/law-school-application-statistics/

[13] Fair Access to Regulated Professions Act, 2006, SO 2006, c 31. Section 6 provides that “A regulated profession has a duty to provide registration practices that are transparent, objective, impartial and fair”.

[14] To 2000, most of the increase was from the University of Ottawa (216 students) and Windsor (55 students). From 200 to 2005, most of the increase was from the new law school at Lakehead (60 students), Windsor (43 students) and Queens (25 students). Ontario Universities’ Application Centre supra.

[15] This analysis excludes licensing candidates who attended law schools in other Canadian provinces.

[16] Technically, there is a third (and problematic) perspective which is that of existing lawyers whose self-interest is in the limitation of new licensees/minimizing competition. The “issue of numbers” has always been expressly or implicitly part of the licensing debates.

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The Statement of Principles and Inter-Bubble Communication About Racism

First published on slaw.ca

There has been significant controversy in Ontario over the new Law Society requirement that every licensee “adopt and to abide by a statement of principles acknowledging their obligation to promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public”.

The nature of the Statement of Principles controversy

Much of the controversy has focused on concern that the requirement compelled expressions of belief and accordingly raised the issue of freedom of speech. This was not an unreasonable concern for at least two reasons. As Alice Woolley pointed out in her op-ed column published in the National Post, explanatory materials published by the Law Society said that the requirement was for a “personal valuing” of equality, diversity and inclusion. As well, the requirement contained an ambiguity as the word “promote” could be seen to require more than conduct.

Most of those who raised concern about the requirement sought to make clear that they did not take any issue with the policy goals of the requirement and that they accepted that it was fully appropriate that the Law Society advance equality, diversity and inclusion in the professions. Some of those who raised concern did so in terms and with language which suggested that more than free speech was in issue for them. But it is clear that there was a legitimate free speech issue in play and that, not surprisingly for lawyers, freedom of speech mattered.

There was a less common concern also raised which was that the requirement had the effect, or could be seen to have the effect, of adversely affecting proper client representation in matters involving human rights or harassment issues. Fully accepting that adverse effect on proper client representation would be inappropriate, the validity of this concern was much less obvious to me.

Law Society clarification, debate and decision

These concerns were addressed by the release of a Guide which clarified that the statement “need not include any statement of thought, belief or opinion” and that “reference to the obligation to promote equality, diversity and inclusion generally refers to existing legal and professional obligations”. Curiously to me, there continued to be demands for a “conscientious objector” exception to the requirement. While I could understand concern as to whether the Guide was clear enough or authoritative, I continue to be baffled by the concept of conscientious objection to the requirement as clarified. That doesn’t mean that the continued demands were not genuinely made, but I don’t understand them.

Listening to the debate in Convocation, it was clear that the “free speech” issue was not the sole motivation for those supporting the motion seeking a “conscientious objector” exception. For some, the concern seemed to be that the requirement was little more than an irritant for practitioners being a mere “check the box” requirement. Indeed, there was an attempt to amend the motion by those who agreed with this perspective and wanted more to be done rather than less. My view was that the requirement may not be effective for some but that the requirement may be of some help addressing an important problem – and that surely requiring reflection on human rights obligations is no great burden.

A letter to the Middlesex Law Association

After Convocation decided not to adopt a “conscientious objector” exception, there was an interesting series of tweets on Twitter about an six page letter from a London Ontario lawyer published by the Middlesex Law Association. Most were tweets from those appalled by the letter. The letter was taken off the association’s website for a time and then replaced with a limited version of it (although the original is still accessible)[1].

It is not surprising that publication of this letter resulted in strong responses. The writer argues in his letter that (i) the evidence does not support the conclusion that there is systemic racism in the legal professions, (ii) the claim of systemic racism vilifies lawyers and paralegals by labelling them as racist, (iii) the 13 recommendations are a form of unauthorized social engineering, (iv) racism and bullying are just part of life and should be simply be endured and overcome by racialized licensees as others have done before them, (v) the true problem is economic class not race, (vi) white privilege is a ridiculous concept as it relates to white and racialized lawyers and (vii) racialized lawyers who join legal associations based on race or ethnic origin cannot complain that they are not treated equally. In conclusion, the author says that his response to “Diversity, in a Nutshell” is “Who cares about skin colour?” and that he will not draft a Statement of Principles because that is compelled thought and speech and because systemic racism in the legal professions has not been demonstrated.

Alice Woolley has written that she “actually welcome(s) the letter because it reveals the deeper debate, and allows the conversation to be about the real issue”. Proceeding from Alice’s observation, I think that it is worth exploring the perspective and the language used in the letter.

It is useful to recognize that express racism is socially unacceptable in Canada. The social norms of the legal professions do not permit arguments based on claims of racial superiority or inferiority even though some presumably hold those views. These social norms are valuable because they limit offensive behaviour and because social norms can influence cultural values over time. But one of the realities of social norms is that arguments and claims that are inconsistent with established norms are often expressed ways that disguise what is really being said.

The difficulty is in distinguishing between what is sometimes described as “impression management” and genuine attitudes. Examples of “impression management” are obvious. Anti-Semites try to obscure their true views with “evidentiary” denials of the Holocaust. The tropes “I’m not racist but …” and “Some of my best friends are X” are well worn. That racist wolves can dress as liberal sheep is clear.

The “free speech” aspect of the debate over the Statement of Principles illustrated the difficulty in sorting out what is “impression management” and what is true principled disagreement and debate. There was a genuine “free speech” issue to be addressed. Yet it also seemed that some opponents[2] of the Statement of Principles used the free speech argument to avoid saying what they really meant. It is challenging to have genuine good faith debate when one side of a debate legitimately suspects illicit motives on the part of some of the other side and those who are genuinely expressing their views on the other side of the debate fairly consider their views to be disrespected as a result.

The letter to the Middlesex Law Association clearly raises the problem of “impression management”. The core implicit claim is that racialized lawyers and paralegals do not in fact suffer disadvantage in the legal professions and that, if they do, they should suck it up and stop being crybabies. This implicit claim is obscured by a “lawyer-like” analysis of the “evidence” and the claim that the evidence is not persuasive. The writer appears seek to demonstrate “liberal” credentials by asserting that the true problem is economic class rather than racism and by claiming personal “colour-blindness”. As always, it is difficult to know the genuine attitude of the writer. But the letter certainly reads as an exercise in “impression management” in support of a denial that racism exists in the legal professions and, in any event, a denial that racism is worthy of being addressed.

It should not be necessary to have to explicitly say that racism exists, including in the legal professions. It should not be necessary to explicitly say that genuinely addressing racism in the legal professions is necessary. It should not be necessary to explicitly say that white lawyers and paralegals have relative advantages over racialized lawyers and paralegals because racism exists. But it is necessary to do so because “impression management” is a fact of life in discussions about race. The time has come for lawyers and paralegals to clearly acknowledge these truths. The Statement of Principles provides an opportunity to do so and is valuable if only for that reason.

All of this said and meant, I think that there are lessons to be learned from the letter whether one considers the letter to be an illicit exercise in “impression management” or a genuine but misguided attempt to wrestle with difficult issues. The point of the balance of this column is that the Statement of Principles and the other recommendations proceeded on the basis that achieving progress against racism requires cultural change and that achieving cultural change is not possible if one speaks only to those who don’t need to change.

Communication between bubbles

Starting with perspective, the website of the author discloses that he is an older white man in sole practice in London who was called to the bar in 1976. Our society is much changed in the forty plus years that the author has been in practice. The social changes over the decades have not been equally distributed. Toronto, for example, has become particularly diverse as compared to, well, London. Also, it is simply not possible for older white men to truly know the experiences of those who have experienced discrimination or disadvantage on the basis of race, ethnicity or gender. This is not to castigate older white men (of which I am one) but simply to observe that most discrimination is not obvious and is likely not appreciable by those who do not experience it. One of the lessons that I learned as a member of the Law Society working group is that it is important to hear those who are not part of the majority. This is not to say that it is necessary to take everything that is said at face value but it is necessary to listen with an open and sympathetic mind. For those who are prepared to listen, the qualitative evidence of discrimination and disadvantage developed in the working group should be compelling. It should no longer be controversial that we human beings tend to treat those who we consider different than ourselves differently, whether intentionally or unintentionally.[3]

Turning to the language used in the letter, I think that there are important lessons to be learned from the letter if equality, diversity and inclusion are to be better advanced. The author of the letter expresses anger at some of the language used by the Law Society working group. He writes “It is extraordinary to allege that racism is ‘systemic’ in the legal professions in Ontario and an insult to the nonracialized lawyers and paralegals practising in Ontario” and “it is difficult to understand how the Law Society can justify vilifying most of the 58,000 lawyers and paralegals in Ontario by labelling them as racist”. The author also writes “The spectre of “white privilege” is referred to by one of the persons consulted by the Working Group. The concept is ridiculous.”

The author apparently understands that the assertion that there is “systemic racism” in the legal professions to mean that most lawyers and paralegals intentionally discriminate on the basis of race. Similarly, the author apparently understands the claim of “white privilege” is a claim of intentional subjugation of racialized people by white people. Assuming that the author is genuine in these understandings and that he is well intentioned, his reaction is understandable.

But the concept of systemic discrimination (or systemic racism where race is the particular focus) is not about individual intentional discrimination. As the Ontario Human Rights Commission puts it “Racial discrimination can result from individual behaviour as well as because of the unintended and often unconscious consequences of a discriminatory system. This is known as systemic discrimination.”

The phrase “white privilege” is not a legal phrase like “systemic discrimination”. There are no doubt different meanings given to the phrase by different writers and over time. But (as I understand it) the phrase does not necessarily connote intentional impropriety. Rather, “white privilege” is logically the equivalent of “non-white disadvantage”. In a sense, “systemic racism” and “white privilege” address the same thing from different perspectives. Still, it seems easier to accept that others are unfairly disadvantaged than to accept that one is unfairly advantaged.

So one interpretation of the author’s response to assertion of “white privilege” and “systemic racism” is that he is ignorant of what is actually being said – and that it is presumptuous to for him to castigate as he does without spending time to actually understand what is being said. Another interpretation is that the author actually denies that there is disadvantage as a result of race in society rather than just being offended by a wrongly perceived claim of wide spread intentional racism. And of course, these parts of the letter may simply be an exercise in “impression management”.

But it may not be wrong to perceive that there is intended to be some sting in the language of “white privilege” and perhaps even in the language of “systemic racism”. Naturally, those who spend time and thought addressing unfair disadvantage are more likely to have suffered disadvantage themselves or, at least, to be sympathetic to those who have. It would be too much to always expect the language of a Mandela or of a Martin Luther King, or clinical academic language. The unfairness and wrongness of racial discrimination will out in the language used. And no doubt some racism is intentional and the failure to address unintentional racism is itself an ethical failure. Language choices fairly reflect these things. Those like me who are in a position of advantage are not well placed to criticize or to complain.

But the problem is that we are mostly in bubbles. Our perspectives and our language are different in our respective bubbles. This matters because culture change requires that communication between the bubbles. Those who have suffered unfair discrimination need no persuasion nor reminder of that reality. It is those who have advantage from whom assistance is sought. And those who are actually racist will not change. The goal must be to better enlist those who already want to help and to engage with those who have not thought much about these things but are people of good will.

It is not possible to know which category our author is in fact. While it is tempting and may be right to assume the worst, recognizing differing perspective and use of language opens the possibility that we can be too quick to dismiss the possibility that someone prepared to spend time and thought writing about this issue may want to do the right thing but be angered by what feels to be unfair castigation. In any event, it actually doesn’t matter what the right answer is for any specific person. What matters is failing to enlist the support of those whose support is possible.

On that note, I recently attended an educational session that addressed diversity and inclusion. A presentation entitled How microaggressions are like mosquito bites • Same Difference[4] was shown. The presentation is masterful and is well worth listening to. With grace and good humour, it allows the perspective of the disadvantaged to be better appreciated by the advantaged.

Going forward

To return to the Statement of Principles controversy, there seems to be broad consensus that the equality, diversity and inclusion ought to be advanced by the legal professions. No one who I have heard argues that there should be any compelled speech. My view is that the ambiguity has been removed about that. What is now needed is to return to the beginning which was to enlist the help of those who already share the goal and to encourage those who might be persuaded to share the goal to help as well.

_________________________

[1] See the December/January Middlesex Law Association newsletter at page 30. Presumably in an attempt to somewhat distance the Association from contents of the letter, the index to the revised newsletter now lists the letter under “Opinion and Letters to the Editor”.

[2] Particularly the more hyperbolic ones.

[3] Robert Sapolsky has recently published Behave: The Biology of Humans at our Best and Worst. Chapter Eleven entitled “Us versus Them” which is a compelling discussion of “The Strength of Us/Them” and the reality that we humans are programmed to react differently to those with whom we identify and those who we see as “others”.

[4] The term “microaggression” is another term that seems to me to risk loss in inter-bubble translation highlighting as it does malignant intentionality rather than adverse impact. I say this at risk of being thought to demonstrate “white fragility” which is another phrase that bears similar risks.

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Cost disease, the practice of law and access to justice

(First published on slaw.ca)

How is it that we are such a wealthy society yet services that were once available are no longer available (at least at affordable prices)? Many people, but certainly not all, had help in their homes and farms, even full-time help. Doctors used to make house calls. When I was a child, the milkman[1] made deliveries each day. There used to be people who actually answered telephones in businesses.

What we call the “access to justice” problem seems to be similar in nature. We know that the number of self-represented litigants has dramatically increased over the last four decades. Ordinary people can’t afford lawyers. Even lawyers can’t afford lawyers. Yet, it seems that there was a time that people had a family lawyer just like they had a family doctor.

Some of this is pastoral myth. The idea that doctors were once available to all isn’t true as Tommy Douglas addressed in Saskatchewan in the 1950s. The poor didn’t have servants even though domestic help seems to have been more common than it is now. The image of the small town lawyer serving the whole town fails to recognize that there were income differences that must have affected who could afford to pay for a lawyer.

And while the price of legal services is a significant issue, it isn’t the only issue in the “access to justice” problem. There is also much to the idea that our legal system has become more and unnecessarily complex with attendant costs. A system of justice that is too expensive for most to access is a denial of access to justice even if the perfect justice can be obtained by those who can afford it.

While the problem of access to justice has more than one cause (and so must be addressed in more than one way), the cost of lawyers seems increasingly to be part of the problem. But why is that?

Cost Disease

A few weeks ago, I listened to a podcast on economics[2]. There was an interview with Larry Summers[3] who is a highly regarded economist[4]. Stephen Dubner, the interviewer, asked Summers about the cost of government and why it is that the cost of government doesn’t shrink. As Dubner asked:

You talk about us having conquered inflation, but lately you’ve been writing about the reasons why federal government can’t shrink. One of those reasons that I found really interesting — you talked about how changes in structural pricing that disproportionately affect government are huge. You talk about the Consumer Price Index from 1983 versus today and the things that have gotten relatively cheaper and the things that have gotten relatively much more expensive. Can you talk about that for a moment? I assume where that leads to is a conversation about what you economists call cost disease, yes?

Summers responded saying:

This is the phenomenon that was first noticed by the late Princeton economist William Baumol, that’s sometimes referred to Baumol’s Disease or cost disease. It refers to the fact that if workers become much more productive doing some things — and their wage has to be the same in all sectors, then there’s going to be a tendency for the price of the areas in which labor is not becoming productive to rise. That’s why it costs more to go to the theater relative to other things that it did when I was a child. That’s why tuition in colleges has risen. That’s why the cost of mental-health counseling has risen. All kinds of activities where it takes inherently a person one hour to provide a given service and where productivity growth is defeating the point. Productivity growth in education, after all, is a higher ratio of students to teachers — which is exactly the opposite of what we all want for our kids. Those structural changes are going to define our economy.

The cost disease thesis says that relatively unproductive sectors become more costly with productivity increases in other sectors because incomes increase in both productive and unproductive sectors as a result of increased productivity.

A core idea of cost disease is that there is labour mobility over time. In the long run, a sector will not be able to continue to pay people lower incomes if work is available to them elsewhere for higher incomes. Just because one sector is less productive than another sector doesn’t mean the less productive sector will be able to get away with paying its workers lower incomes. The cost disease thesis also reflects the economic view that incomes over time generally rise as productivity generally rises. Of course, there are questions about some of the underpinning of the cost disease thesis.[5]

But even if one does not accept the idea that productivity increases positively affect incomes generally[6], it must be true that sectors that do not become more productive will become relatively more costly unless these relatively unproductive sectors decrease incomes in their sectors.

Cost disease and the practice of law

I was struck by the application of the idea of cost disease to the practice of law. The last four decades have seen amazing productivity increases in other sectors of the economy. Computing capacity and networks have fundamentally changed the productivity of significant sectors of the economy. Before that, mechanization, electrification and industrialization radically changed the productivity of other sectors of the economy.

On the other hand, it also seems pretty clear that lawyer productivity has little changed over the long term. While there have been some productivity changes arising from modern technology, most of that has simply been to reduce overhead as lawyers do their own document processing.

This is particularly true in litigation. The approach to analyzing documentary evidence, interviewing clients and witnesses, discovering adverse parties and trying cases for ordinary people is highly lawyer-intensive without there having been material changes in productivity over the decades[7]. This may be less true in some of the solicitor’s practices where technology has made document production more efficient and where process efficiencies can be adopted in routine aspects of legal work where there is sufficient volume.

Of course, economic theories do not always hold in practice. There can be other factors at work. Market efficiency assumptions may not hold. But actual labour market information seems to show that lawyer incomes have followed incomes generally. A few years ago, I looked at census information over the last forty years or so and found that lawyer incomes generally tracked family incomes over that period. I also understand that research has indicated that lawyer, engineer and doctor incomes track a similar path[8].

Let’s assume for the sake of argument that lawyer incomes do rise and fall with incomes generally for whatever reason. That means that if other sectors have become more productive then the cost of what is produced in those sectors will have declined. Costs in sectors like law where productivity has not improved, or improved as much, will relatively increase.

I was excited by the new (to me) thought that apparent increases in legal costs and resulting diminution in access to justice could be explained in part by increased productivity in other sectors and the limited productivity increases in law. I went looking for further discussion of cost disease and, particularly, its application to the practice of law.

Not surprisingly, I found that this was not a new thought. For those interested in reading more, Professor Gregory W. Bowman posted two blogs on exactly this point over a decade ago in his Law Career Blog[9]. More recently, Emery Lee[10] published a journal article in the University of Miami Law Review entitled “Law Without Lawyers: Access to Civil Justice and the Cost of Legal Services”[11]

In his article, Lee looked at the cost of legal services for the “Big Guy” and the cost for the “Little Guy” i.e. the ordinary person. Lee said at pp. 514 to 515 that “In relation to the Little Guy, the cost disease is his problem. As discussed above, in general, it is not the levels, or amount, of discovery that keep the Little Guy out of court. Most of the Little Guy’s cases are not going to be discovery-heavy, and reforms designed to reduce discovery levels are unlikely to help the Little Guy.” and “The Little Guy has simply been priced out of the market for legal services. Reducing discovery levels is unlikely to solve this problem.”

So what?

As a profession, we have had difficult discussions about innovating our existing business structures. Some argue that we should simply focus on procedural and substantive simplification of the litigation process, that it is only litigation that is a problem and that solicitors’ practices are just fine. Accepting that simplification in litigation is important, my view has long been that the significant areas where people do not use legal services at all (sometimes called the 85%) must be addressed and that the cost of providing services is a major part of the reason for the lack of service in the 85%. Increases in costs arising from increased productivity in other sectors may be part of the reason that the 85% cannot be effectively served without significant productivity changes. This supports the idea that it is important to bring capital and technology to bear because increasingly expensive professional labour is simply too expensive for the task[12].

What is a significant implication for me is that decreased access to justice in the 15% served by lawyers, and particularly in litigation, may be the result of cost disease and the lack of productivity increases in law. Where access to capital is constrained as is true in the practice of law, labour is overwhelmingly the means of production. Where productivity in other sectors improves, the cost of legal work certainly relatively increases. And if labour costs actually rise generally with increased productivity, the absolute cost of legal work will increase as lawyer incomes rise with productivity in other sectors[13].

If “cost disease” is a material reason for the increasing cost of legal services and diminishing access to legal services, it follows that legal costs will continue to relatively increase unless productivity in the legal sector improves. Even without this analytic framework, it is obvious that new ways of providing legal services are already here and that they are less expensive and more easily accessible. This will only increase.

The implication is significant. If the traditional practice of law becomes relatively more and more expensive over time then fewer legal services will be consumed and the threat from new and less expensive forms of legal service will increase. Legal services regulation will not ultimately hold back this tide, nor should it in my view.

So the question is whether we should continue to restrict the practice of law to traditional practices or should we encourage real innovation in the way that law is practiced so that productivities are achieved.

I used to think that the answer was obviously that increased productivity should be encouraged because of the moral and policy obligation to promote access to justice. While still thinking that is so, I also think that existing legal practices are imperilled by our unwillingness to allow the conditions required for innovation. Cost disease is not just a disease suffered by consumers of legal services. Cost disease is suffered by lawyer and paralegal producers too and the consequences may be more severe if not addressed. Attempting to hold back the tide can work for a while but when the dike fails much can be lost that could have been saved.

Something to think about.

_____________________________

[1] Herb was our milkman and he had a very cool truck. He let me ride with him in his truck on our street when I was a little boy

[2] http://freakonomics.com/

[3] http://freakonomics.com/podcast/larry-summers-economist-everyone-hates-love/

[4] Even if not so much on other topics

[5] It is not so clear that the benefits of productivity increases are generally distributed. Labour market mobility is suspect with income disparities having increased over the last generation. Increases in productivity over the last generation have not resulted in increased real incomes for many people. Some increases in income have been enjoyed in distant economies with local labour markets facing downward pressures.

[6] i.e. that the wealthy disproportionately enjoy the profitability arising from increased profitability

[7] Significant e-discovery advances exist but are mostly irrelevant outside of “big business” disputes and mostly address the significant increase in e-documents in business over the last couple of decades. Litigation for ordinary people has not seen material productivity gains other than legal research, especially CanLii.

[8] Alice Woolley kindly reviewed a draft of this column. She advised that this observation was made in the research underlying Woolley, Alice and Farrow, Trevor C. W., “Addressing Access to Justice Through New Legal Service Providers: Opportunities and Challenges” (2015), 3 Texas A & M Law Review 549

[9] http://law-career.blogspot.ca/2006/07/baumols-cost-disease-and-practice-of.html and http://law-career.blogspot.ca/2006/08/baumols-cost-disease-and-lawyers-part.html

[10] Senior Researcher in the US Federal Judicial Centre

[11] Emery G. Lee III, Law Without Lawyers: Access to Civil Justice and the Cost of Legal Services, 69 U. Miami L. Rev. 499 (2015)

[12] If legal services are only relatively more expensive but not absolutely more expensive, it would still follow that consumption of legal services would decline.

[13] Whether because of increased productivity in other sectors or not, lawyer incomes have followed other incomes.

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Conflicted regulation in the public interest

(first published on slaw.ca)

Fiduciary law deals strictly with conflicts of interest. A fiduciary is not permitted to have an interest that conflicts with the duties owed to their beneficiary unless the conflict and all material facts have been disclosed and consent is obtained Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23. Where a fiduciary benefits without consent, the fiduciary is ordinarily required to disgorge the benefit whether or not the beneficiary’s interests have been compromised. Strother v. 3464920 Canada Inc., 2007 SCC 24

The Rules of Professional Conduct are no less strict. It is professional misconduct for a lawyer or paralegal to act where their self-interest conflicts with their duties to their client without proper consent. Some conflicts are not waivable. Transactions with clients are strictly regulated even where the lawyer or paralegal does not act on the transaction[1].

It is ironic that client conflicts are treated so seriously while the inherent conflict in self-regulation is mostly ignored. Commonly, this conflict is not really recognized or understood. Some think that the public interest is virtually invariably the same as the interest of the legal professions. Pressures from stakeholders and the realities of elections affect how elected benchers perceive issues and their roles.

Examples of conflicting self-interest in regulation

There are many examples which illustrate this inherent conflict. Describing a few helps make the point. In June, a proposal was made to Convocation in Ontario to allow charities and not-for-profits to hire lawyers and paralegals to provide legal services to the public. The idea was to attempt to address unmet legal needs by permitting those who currently serve people with other social, health and economic needs to add legal services to their offerings. Unlike the many proposals put to Convocation, this proposal provoked an immediate demand from legal stakeholders for time to consider and address the proposal, no doubt reflecting recent ABS debates. The proposal was deferred.

While I’m quite hopeful that lawyers will see the merits of this “civil society” proposal with fuller information and time to reflect, there is a long history of the private bar reacting defensively to other ways of providing legal services. In his book The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997, Christopher Moore details the early days of legal clinics in the 1970s. As Moore describes, the intent of these “storefront clinics” reflected the belief that legal assistance had to be delivered to poor communities through community networks and agencies which integrated legal advice with other kinds of assistance offered from accessible storefront ‘clinics.’ In 1971, Osgoode Hall Law School, with support from the Ford Foundation and the Canadian government, opened the Parkdale legal clinic. The following quotation from Moore’s book describes the reaction:

‘We were against this, we were violently opposed to this,’ recalled Gibson Gray, a future treasurer then on the legal aid committee. `They were … taking work on at the clinic … rather than having the work done by lawyers, traditional lawyers.’ That summer, there were rumours that the Law Society might seek an injunction against the law school’s storefront clinic, and benchers urged the professional conduct and unauthorized practice committees to investigate. …

… The Law Society’s irritation moved it to consider reclaiming the name `Osgoode Hall’ from the law school, but clinical legal aid (the phrase which soon replaced ‘poverty law’) proved irresistible. The Law Society, able neither to prevent nor to control their emergence, soon acknowledged that clinics were no real threat to private law practice, for they usually served a different clientele and often did counselling and community organizing work that extended well beyond legal practice. …

The reaction by the private bar to student legal clinics in the 1970s and to new practice structures in the 2010s[2] illustrates that self-interest has material effected consideration of new forms of legal service delivery. This is not to say that legitimate issues were not raised. In the 1970s, the way that student legal aid was brought forward was a challenge to the Law Society’s regulatory authority. Accordingly to Moore, “Arguing that supervising law students working in a storefront legal clinic was part of the law school’s educational mandate, Dean Gerald LeDain took the position that seeking permission from (or even informing) the Law Society was unnecessary”. Similarly, there are reasons to think carefully about allowing new forms of for-profit legal services[3]. But just as it is no answer to a disgorgement claim to say that no harm was suffered, it is no answer to concerns about the integrity of self-regulation to say that protectionism often leads to examination of legitimate issues.

Recent revisions to the advertising and referral fee rules provide another example. Over recent years, the traditional personal injury bar has faced significant new competition for clients. Significant investments were made in brand advertising. Referral fee-based business models capitalized on and fueled the advertising. Traditional ways of attracting clients were disrupted. The reaction of the traditional personal injury bar was to seek regulatory intervention. This is not at all to say that public and consumer interests were not engaged by these changed advertising and referral fee practices. They clearly were. And the traditional personal injury bar was no doubt motivated in part by concerns about the interests of injured people. But the fact is that these issues are, in part, reflective of competitive pressures between different parts of the private bar. The Law Society is currently considering contingent fee arrangements which are commonly acknowledged to require reform. The personal injury bar has a significant self-interest in contingent fee regulation. It is fundamentally important that the Law Society deal with these issues in the public interest and in the interest of injured people recognizing that access to justice, procedural and substantive, is what must drive deliberations about contingent fee arrangements.[4]

The recent Family Legal Services Review report by Justice Annemarie E. Bonkalo raises another cogent example. Lawyers and paralegals have been regulated together by the Law Society since 2007. Lawyer benchers and paralegal benchers are elected by their respective professions. While there are tensions within Convocation, I think that it is generally thought that this regulatory approach has worked well. Common perspectives on and approaches to appropriate professional conduct makes practical sense as does integrated professional conduct investigation and discipline. There are obvious synergies in licensing and ongoing professional competence. However, lawyers and paralegals compete for clients in some areas of practice. The extent of the permitted paralegal scope of practice engages the self-interest of both paralegals and lawyers.

These self-interests are obviously engaged by the Bonkalo Report. Lawyer benchers have been the target of organized communications from the family law bar, all framed in the public interest. Lawyer stakeholder groups are making forceful submissions against expansion of the paralegal scope of practice. I would be surprised if paralegal benchers are not receiving similar communications from paralegals. Paralegal stakeholder groups are naturally advocating for expanded scope of practice. To be clear, most benchers seek to rise above self-interest and to genuinely address the public interest in effective and fair resolution of family breakups. But my observation is that it is hard both for paralegals and lawyers to do this without their judgments being affected by self-interest. This is not surprising. Fiduciary law and professional conduct rules exist because we understand human nature and the cognitive biases that of us have.

These are but three examples of conflicting self-interest in self-regulation. Other examples are not difficult to find.

The need to act in the public interest and to reform governance

The point of this column is two-fold. The first is that each of these examples is live. It is important that the Law Society, the legal professions and stakeholder groups recognize how these issues need to be addressed. Just because self-interest is engaged doesn’t mean that legitimate issues are not raised. But professionalism and the integrity of self-regulation requires disciplined focus on the public interest and the interest of those we serve. If we do not regulate ourselves properly, we can expect that someone else will.

The second is that we should think hard whether our approach to governance effectively addresses conflicting self-interest and assures proper self-regulation. In Ontario, a Governance Task Force is currently charged to review of and make recommendations respecting the Law Society of Upper Canada’s governance structure. This question of how to address regulatory self-interest should be addressed by the task force,

A modest regulatory innovation might be to use public benchers as a formal check on self-interest. There are eight public benchers appointed to Convocation in Ontario. In meetings with over fifty voting members, these public members have an important role but a limited voice. Even without increasing the number of appointed members, these “lay” benchers could be formally responsible as a committee to consider and publicly report to Convocation on matters where regulatory self-interest is significantly engaged. Simply requiring that the public interest be addressed by public members should have a salutary effect.

Manitoba provides a recent example of significant governance change[5]. Manitoba has 23 benchers. There are 12 elected benchers, a bare majority. Six lay benchers are independently appointed. Four lawyer benchers are appointed by the other benchers applying criteria required to be established “such as the need for representation by region, demographics, type of law practice, or professional, leadership or management skill”. The Dean of the law school and an articling student are benchers as well.

In 2014, the Canadian Bar Association Futures Report recommended at pp. 50-51 that:

The governing bodies of law societies should be made up of elected lawyers, as well as a significant number of appointed lawyers and non-lawyers. The appointed governors should be selected by an independent appointment process designed to fill gaps in experience, skills and diversity.

There are no doubt other ways that governance reform could usefully address the problems of self-interest in self-regulation. Thoughts and suggestions by way of comment to this column would be helpful.

To every action (and sometimes even to an inaction), there is a reaction

It is easy and lazy to be apocalyptic including about the prospect of losing self-regulation in Canada. There is an ongoing risk of that but, at least for now, no real pressure for change. But failing to properly undertake responsibility in the public interest can result in loss of authority.

In his book, Moore provides an example. The resistance to the legal clinic model by the practising bar and the Law Society in the 1970s was followed by the appointment by the Ontario government of Justice John Osler “to investigate the delivery of legal services to disadvantaged groups, including aboriginal communities and isolated regions. Osler’s report laid the groundwork for a permanent network of Ontario legal clinics”. As Moore further notes “Osler also recommended that legal aid be transferred entirely from the Law Society to a publicly appointed board which might be more open than the lawyers to other innovations in delivery of legal services”.

Moore ends his discussion of this history noting that Law Society leaders subsequently acknowledged “in their way, that the Law Society alone no longer set the agenda on legal aid and much else affecting the profession. The principle of self-government endured, but authority over the legal was becoming permanently subdivided”.

I have previously written that unmet legal needs are a significant challenge to self-regulation.[6] This is not new as Moore describes. Failing to address legal needs not effectively addressed by the private bar resulted in loss of Law Society responsibility in the 1970s. Failing to do the same 40 years later risks similar loss. Given the extent and significance of unmet legal needs in family law, a protectionist response to the Bonkalo Report likely results in loss of authority over who may provide legal services in family law matters. This is not to say that Justice Bonkalo’s recommendations should necessarily be accepted. The point is that the self-interest of lawyers or paralegals is the wrong perspective from which to address the question.

The same can be said about contingent fee arrangements. The personal injury bar is vitally concerned with contingent fee arrangements. Ontario benchers will no doubt want to reflect carefully on what is said by personal injury lawyers in the current consultation. Their expertise and experience requires that benchers listen carefully. But their understandable self-interest requires independent consideration of recommendations for reform in the public interest. Again, failure to do by the Law Society so will likely result in loss of responsibility and authority.

Doing the smart thing and the right thing

It is clear that self-regulation can be lost all at once or bit by bit. For those who consider self-regulation to be essential to independence of the bar, the need for governance mechanisms and policy decisions to ensure that the public interest is advanced should be powerful. The same should be true for those who merely see value in self-regulation[7]. On an issue by issue basis, members of the private bar and their representatives should recognize that protectionist instincts that result in self-interested regulatory decisions can be counter-productive in the longer run. And in any event, those who have accepted responsibility in the public interest rather than the interest of their profession should of course act accordingly.

 

[1] Rules of Professional Conduct, Section 3.4, Paralegal Rules of Conduct, Rule 3.04

[2] See Alice Woolley’s slaw.ca column Bencher Elections – the Challenge to Self-Regulation’s Legitimacy

[3] Principle, not Politics

[4] Contingent Fees, Portfolio Risk and Competition – Calls for Reform

[5] Sections 6 and 7 of The Legal Profession Act, C.C.S.M. c. L107

[6] Unmet Legal Needs – The-challenge to legal practice and to self-regulation

[7] Independence and Self-Regulation

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Contingent Fees, Portfolio Risk and Competition – Calls for reform

(first published on slaw.ca)

In theory, contingent fee pricing is an elegant way of providing access to justice at a fair and reasonable price. In this column, I try to look at both theory and practice and also at prospects for reform.

Time and materials

Let’s start with a different approach to pricing. Legal work can be done on a “time and materials” basis (to use language from another industry), on a fixed fee basis or on a contingent fee basis. These different approaches shift risk between suppliers and consumers of legal services.

Legal work is still largely priced on a “time and materials” basis. While time spent is not the only factor considered when setting price, it is ordinarily the dominant factor.

Fixed Fees

Legal work is increasingly offered on a fixed fee basis. Where available, this is attractive to clients because of the increased certainty that fixed fees offer. Fixed fees can also allow increased competition as clients can more easily shop for a better price.

Where a fixed fee is agreed, the lawyer has the risk that the work may take more time than anticipated. Given that the lawyer likely has an understanding of what is required based on past work and given that the lawyer can make up losses on some fixed fee matters by gains on other fixed fee matters, this risk is mitigated. Where fixed fees are fairly agreed, it would be inappropriate for the client to be charged an increased cost because it turned out that extra time was required and it would be inappropriate for the client to demand a rebate because it turned out that less time was required than was anticipated. Either fixed prices are agreed or not.

But all of this assumes an effective market. For lawyers and clients, there is significant information asymmetry. Clients cannot assess whether a particular fixed price makes sense as clients ordinarily cannot assess the cost of the work to be done and likely outcomes. However, where prices are generally available, clients can “shop” based on price. Where prices are transparent and price shopping is possible, clients need not make their own assessments because a competitive market does so for them.

Contingent Fees

Contingent fees have some similarity to fixed prices. The price of the legal work is fixed as a percentage of the ultimate recovery. However, contingent fees add a further complexity as no fee is charged where there is no recovery.

There are two risks facing clients and lawyers, or paralegals, where personal injury and other disputes are to be resolved. There is the risk of non-recovery where liability is in issue. There is uncertainty as to the amount of the net recovery as both the amount of the recovery and the cost of obtaining recovery are uncertain. Because disputes can be settled at any stage (and are usually resolved by settlement rather than judicial decision), the cost of resolving a dispute is much more uncertain than, for example, the cost of completing a residential real estate transaction.

For the lawyer or paralegal, the risk inherent in contingent fees is mitigated by their expertise in assessing the risk inherent in particular matters and by their “portfolio” of cases. The situation of the client is very different. The client has no ability to assess the viability of their own case. The client has no portfolio through which to manage risk.

Portfolios of risks

While perhaps not obvious, investment by portfolio in the financial world offers the same risk management as having a portfolio of cases in the contingent fee world. A simple example shows the main advantage. Imagine a $1,000 bet based on a single coin toss. Heads you win $1,100. Tails you lose. There is a 50% chance of a complete loss. But imagine the same bet made on a portfolio of ten coin tosses. The probability of a complete loss drops to a little less than one in one-thousand and profit becomes very likely.

In the contingent fee context, a single contingent fee case can be very risky. But where work done in the losing cases can be recouped in the winning cases, risk is better managed. To make a very simple example, if there is a portfolio of cases each of which has a 50% chance of success and each of which requires a fixed amount work and disbursements worth $10,000, charging $20,000 for each case that is successful is a very low risk proposition even though the prospect of payment for any particular case is only 50/50.

Contingent fee work is more complicated than betting on coin tosses. The probability of success varies from case to case. The work and disbursements required in any given case is uncertain and difficult to accurately predict. More becomes known as the matter progresses. The outcome of a case is most uncertain at the outset. Assessing the amount of work to be done is also most uncertain at the outset of the matter. For a lawyer or paralegal, a contingent fee case is like a financial investment but with the added complexity that the amount to be invested is uncertain.

Modern portfolio theory says that risk is reduced by having a portfolio of risks. Before this was well understood, it used to be that trustees were only legally permitted to make certain “safe” investments. The idea was that the “prudent investor” would not make risky investments. However, we now know that a portfolio of higher risk investments can be low risk as a whole. The winners pay for the losers. The risk of having all losers is very much reduced by portfolio investment. Indeed, modern portfolio theory shows that a diverse portfolio of higher risk investments is likely to be more profitable than a portfolio of lower risk investments. But the investor must be able to enjoy the fruits of the winning investments for the portfolio to do its magic.

Contingent fees and markets

Injured people typically cannot afford the cost of the legal services required for their case. Borrowing the money to pay the cost of doing the necessary work is risky unless the case is not. Even assuming that recovery is quite likely, there is uncertainty as to the cost of obtaining recovery. Some cases settle quickly at low cost. Some cases go to trial or appeal. Contingent fees move this risk from the client to the lawyer or paralegal who can better assess the risk and reduce the risk by having a portfolio of cases.

But the contingent fee system will not work fairly in the real world unless there is an effective market in which contingent fees are set. Obviously, clients have limited insight into their cases. Otherwise, they would not need legal experts to assist them. Clients have no insight into the portfolio of cases maintained by their lawyers or paralegals. Where there is information asymmetry and a market which is not truly competitive, the party with superior information will have an advantage in setting prices. This either results in higher prices where the party with superior information is the supplier or by diminished demand from consumers or both.

It seems pretty clear that we do not have an effective market for contingent fees. While the problem of information asymmetry can be addressed by active bidding by informed suppliers for work, there is no good evidence of robust bidding being common. The significant growth of brand advertising appears to show that injured people have difficulty knowing who to approach for legal services. There is, at best, limited market information available to consumers or suppliers as to the costs of obtaining recovery. Unlike commodity products such as tomatoes or motor vehicles, assessing the expected value of a particular matter is not easy and requires information and expertise. We cannot directly assess whether the existing market is competitive as we have no information as to the profitability of the portfolios.

Ensuring fair and reasonable contingent fees

So how do we currently address the prospect of unfair and unreasonable contingent fees? The first way is by regulating the agreement entered into at the outset. The Solicitors Act establishes certain requirements and, in some circumstances, allows the parties to agree on a different approach with judicial approval. The second way is by considering, after the work is done, whether the contingent fee agreement and the contingent fee are fair and reasonable. For those who cannot represent themselves, the court must approve the ultimate fee. For others, the supervision of the court may be invoked by the assessment process.

The recent case of Evans Sweeny Bordin LLP v. Zawadzki, 2015 ONCA 756 considered judicial supervision of contingent fees and started with the proposition that “A contingency fee agreement is enforceable only if it is both fair and reasonable”.

The question of fairness and reasonableness could be considered based only on what was known at the outset of a matter. In theory at least, a contingent fee agreement that fairly and reasonably reflects the risk of non-recovery and of uncertainty in the cost of recovery would not need to be the subject of after the fact examination. Otherwise, the cases that are more lucrative for the lawyer or paralegal would not pay for the less lucrative cases and, as a result, lawyers and paralegals would decline to take on the higher risk or higher cost cases.

Nevertheless and as Evans Sweeny Bordin LLP makes clear, fairness is currently addressed after the fact, but as of the date of the contingency fee agreement. and reasonableness is addressed after the fact. For the later reasonableness assessment, the Court of Appeal cited with approval its earlier decision in Henricks-Hunter v. 814888 Ontario Inc. (Phoenix Concert Theatre), 2012 ONCA 496 which set out the following factors to be considered in the test for reasonableness:

(a) the time expended by the solicitor;

(b) the legal complexity of the matter at issue;

(c) the results achieved; and

(d) the risk assumed by the solicitor.

The Court of Appeal in Henricks-Hunter followed Raphael Partners v. Lam (2002), 61 OR (3d) 417 (OCA) which held that:

The factors relevant to an evaluation of the reasonableness of fees charged by a solicitor are well established. They include the time expended by the solicitor, the legal complexity of the matter at issue, the results achieved and the risk assumed by the solicitor. The latter factor includes the risk of non-payment where there is a real risk of an adverse finding on liability in the client’s case.

It is clear that our current approach to contingent fees provides for after-the-fact assessment and does not presume that a competitive market will result in reasonable contingent fees.

Calls for Reform – are caps the answer?

There has been much recent public controversy about contingent fees. There are private members bills calling for a cap on the percentage of recovery that may be charged. There are articles in the media decrying situations where the lawyer recovers more than the client or recovers an unusually high proportion of the recovery. The volume of advertisements on buses, taxis, television, the internet and elsewhere, without reference to price, may suggest that personal injury work is lucrative and worth substantial spending to attract work.

Unfortunately, the prescriptions may not address the disease or its symptoms. Following from the discussion above, where a limit is set on the percentage of the recovery that may be taken as a fee, the logical response may be not to take on riskier cases. Again assuming a competitive market and a diverse portfolio, the higher return winners pay for the higher risk losers. The policy problem is that we simply have no idea of the actual risk of the portfolio as a whole or its elements and we have no basis from which to conclude what percentage is unreasonable representing an uncompetitive market and what limit would fairly protect injured people and what limit would cause some injured people to lose access to justice because their cases will not be taken on. In an uncompetitive market, setting a limit can be tantamount to fixing a tariff as the cap becomes a signal to consumers who have no better information and may foster tacit collusion among firms.

There is another problem as well. For some cases which are vigorously defended, the cost of taking the case to trial is comparable to the amount in issue or even more. For those cases, a lawyer would generally be foolish to take on a case destined for trial if the potential recovery assuming success simply cannot fund the work required. But there are exceptions. A personal injury lawyer needs to be credible with defence counsel and insurers. Showing that cases will be tried if necessary makes settlement of other cases more likely. The threat of trial must be a credible threat to have value.

But it is said that there are areas of practice where the practical effect of limiting the contingent fee to a capped portion of the damages recovery would be that injured people would be denied access to justice. These are areas of practice where the risk and cost of obtaining recovery at trial is not commensurate with the damages award. even though it can be commensurate with the costs award together with a proportion of the damages award. Where there is a significant likelihood that a trial will be required, a lawyer is unlikely to accept a case where there isn’t a prospect of recovery of the lawyer’s risk-adjusted investment.

My point is not to argue in this column that there should or should not be a cap on the percentage fee. My point is that the question is tricky and that a cap may have unintended consequences and may not actually address the genuine issue at hand.

Some further thoughts about reform

As for the current after-the-fact assessment approach, there is value in that approach assuming that it is well done. At least in theory, assessing risk-return is a legitimate check on reasonableness. But there are at least two glaring problems1. The first is that an after-the-fact reasonableness assessment that looks only at the risk/return of the particular case fails to reflect that portfolio risk is less than the risk of any individual case. Absent portfolio information, there is a very real potential that after-the-fact reasonableness assessment is a Potemkin assessment. It looks real but isn’t. On the other hand, after-the-fact reasonableness assessment also fails to reflect the reality that only the “winners” get assessed. Portfolio information addresses this as well.

The second problem is that “successful” plaintiffs can have no idea whether their particular contingent fee is reasonable as they do not have the information that the courts have said is required for that assessment. They do not know the time expended by the solicitor, the legal complexity of the matter at issue, or the risk assumed by the lawyer. All that they know is the result achieved. There is no current obligation to disclose the other requisite information. There is no obligation to recommend an independent opinion or an assessment for cases where these factors suggest unreasonableness. That is not to say that responsible lawyers and paralegals will not take these factors into account in setting their ultimate fees. But a fiduciary cannot be permitted to withhold information that is necessary to hold the fiduciary accountable. The system should empower clients who do not know that they should be unhappy with their fees. It would be better if the system did not cause clients who ought to be happy with their fees to become unhappy. But it is surely unacceptable to hold back relevant information because the information may be misused.

Standing further back, can we make the contingent fee system more transparent and accordingly more competitive with the intent that a fair contingent fee agreement may be more reliably seen to generate a reasonable contingent fee? The answer must surely be yes. But this requires that portfolio information be gathered from lawyers and paralegals and aggregated so that injured people can have a better idea of the contingent pricing offered to them, so that lawyers and paralegals can better compete for work and so that society, through the courts, the government and the Law Society, can genuinely understand the risks and rewards involved in contingent fee work.

It is to be expected that lawyers and paralegals will resist reforms that impose costs on them, limit their returns and create uncertainty as to whether their contracts will be honoured. Cries of “bureaucracy” and “freedom of contract”2 will be heard. But it is necessary that the interests of injured people be kept firmly in mind rather than just the competing voices of advocates and insurers.

But it would be best if creative solutions could be found that maintain access to justice for injured people through contingent fees while better ensuring that substantive justice is obtained – that the amount taken from the compensatory recovery of an injured person is not unreasonable taking into account the risks and costs involved.

1 Noel Semple kindly reviewed a draft of this column and provided a number of helpful comments and suggestions. Noel raises a third glaring problem which is that risk is often not appreciated after the fact. What was reasonably seen to be risky at the outset may well not seem risky when the results are known. The reverse can be true as well.

2 Despite that our current contingent fee system requires after-the-fact assessment for fairness and reasonableness and the relative vulnerability of clients, some still argue that any reform should be on the basis on caveat emptor.

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Greater transparency of the results of investigated complaints?

(First published on slaw.ca)

It is difficult for prospective clients to obtain good information about lawyers and paralegals. The significant growth of brand advertising is cogent evidence of this. Potential clients assume that brand is evidence of quality when that may well not be the case. Substantial sums are paid for brand advertising because it works. Similarly, the advertising of dubious awards and reassuring photographs evidences that lack of genuine information about quality.

Concerns about lack of information

A recent market study in England and Wales by the Competition and Markets Authority said that:

… consumers generally lack the experience and information they need to find their way around the legal services sector and to engage confidently with providers. Consumers find it hard to make informed choices because there is very little transparency about price, service and quality … lack of transparency weakens competition between providers and means that some consumers do not obtain legal advice when they would benefit from it.

A similar conclusion was reached based on Ontario research in the 2010 Report of the Ontario Civil Legal Needs Project:

A significant challenge is to find ways to encourage more people to receive the full benefit of the existing resources available to them. People often can’t find legal help because they don’t know where to look, or because they perceive they won’t be able to afford it.

In a recent column, I wrote about market failure as a consequence of lack of consumer information potentially leading to a race to the bottom as high quality lawyers and paralegals (the “peaches”!) are unable to distinguish themselves from “lemons”.

What might help potential clients?

What can usefully be done about the lack of available information as to quality? There are a number of possibilities. One is to encourage genuine referral services (as opposed to mere brokerage services) and genuine ranking services (whether based on peer, client or other assessments) that assist potential clients in finding appropriate assistance.

Another is to move toward enhanced credentialing or limited licensing as a signal of expertise. Unlike some other professionals, all lawyers have unlimited licenses to practice law yet few, if any, have the competence to practice in all areas of the law. Beyond word of mouth and self-serving advertising, how is a client to figure out who to retain? While licensing tells potential clients that minimum standards of competence have been met and provides some assurance of professional conduct, the mere fact of licensing does not allow potential clients to distinguish between individual licensees.

The Law Society is a source of some useful information beyond the mere fact of licensing. The certified specialist program provides an indication of expertise. Public Law Society Tribunal records provide some information with respect to past professional conduct.

A look at 2016 LSUC complaints information

With the issue of useful information in mind, I read with interest the recent LSUC reports 2016 End-of-Year Report for the Professional Regulation Division and the Analysis of Complaints in Professional Regulation in 2016.

The number of complaints[1] received in the Professional Regulation Division has remained stable in absolute number at slightly less than 5,000 per year despite increasing numbers of lawyers and paralegals. The number of complaints per lawyer and paralegal in private practice is very similar at just over 10% for each type of licensee. The trend is generally downward for both over the last six years.

In 2016, the Intake Department dealt with some 4,400 complaints. 2,152 complaints were sent for investigation. 2,243 complaints were closed in the Intake Department. Of the 2,243 closed complaints, 236 were marked as “resolved” suggesting that there was something to resolve but not something meriting formal investigation. The balance were closed for a number of reasons including the conclusion that no further regulatory action was required, the absence of jurisdiction and the formal (or practical) withdrawal of the complaint.

In 2016, 2,018 new complaints were instructed for investigation[2] and investigations staff closed 2,334 instructed complaints. Perhaps not surprisingly, client service issues are the most common followed by integrity, governance and financial issues. To state the obvious, potential clients are interested in knowing whether they will be well served by professionals with integrity who are prepared to be governed and deal properly with financial matters.

How investigated complaints are ultimately dealt with is interesting. Over the last three years, only between 10% and 15% of investigated complaints have been transferred for prosecution. During the same period, approximately 40% have been closed on the basis that there is no evidence or insufficient evidence warranting regulatory action.

There is a substantial number of investigated complaints where the result is some action short of prosecution. Some are closed with diversion such as a Regulatory Meeting, an Invitation to Attend, a Letter of Advice, a recommendation for a practice or spot audit or by an undertaking from the licensee[3]. In the last three years, some 2% to 4% of investigated complaints have been closed investigations with diversion. A more substantial proportion of investigated complaints (approximately 20% to 30% over the last three years) have been closed with a staff caution or with best practice advice. The bottom line is that approximately one-quarter to one-third of investigated complaints raise regulatory issues and result in a regulatory response short of prosecution.

There are different types of complaints information

To make the obvious point, the Law Society has information about lawyers and paralegals that is not publicly available and which might well provide useful information to prospective clients. But the obvious counterpoint is that some of the same information could be unfairly prejudicial to the licensee if publicly available.

There is a spectrum of regulatory engagement from (i) mere receipt of a complaint to (ii) instruction of a complaint for investigation to (iii) determination after investigation that regulatory action is merited short of prosecution to (iv) prosecution. There was a time when our regulatory process was so lawyer-centric that even prosecutions and findings of professional misconduct were not transparent. That time has passed and the question now arises, given the genuine difficulty faced by potential clients in obtaining information, whether the current balance is the appropriate balance.

Discussion in England and Wales

Greater disclosure by legal services regulators is currently being discussed in England and Wales. The 2016 Interim Legal Services Market Study Report of the Competition and Markets Authority asked[4] “Are there any measures of quality that can readily be collected by regulators or government … on observable trends in quality of legal services?”. The Solicitors Regulation Authority (the SRA) responded saying that there are “a number of other indicators regulators can use, which cumulatively can give an indication of quality” including claims against the compensation fund, insurance claims and complaints data. The SRA also said:

Our Codes contain the minimum requirements for those we regulate, all of which are mandatory. We also require diversity data to be published. We are currently considering what information about SRA regulated individuals or firms we should publish or require firms or individuals to publish, and are planning on releasing a discussion paper by the end of the year subject to decisions being taken by our Board. The areas we are looking at include regulatory action, complaints data, insurance claims data and accreditations.

The Law Society of England and Wales[5] responded to the subsequent SRA discussion paper by raising concerns about accuracy and relevance and suggesting that it was better for law firms to voluntarily provide information in the competitive market. Of course, this approach would mean that negative information about solicitors would not be made available.

Thinking about disclosure

It is to be expected that lawyers and paralegals would be uncomfortable with greater transparency of complaints or claims information. We imagine this from our own perspective and fear disclosure of unfair or misleading information (and even true but embarrassing information). For example, it would be natural for family law lawyers to be concerned about disclosure of complaints from the opposite party given the often dysfunctional nature of family law proceedings.

That said, it is clear that further and better information about lawyers and paralegals is needed. From the client perspective, better transparency is desirable while, of course, protecting confidential and privileged information.

Perhaps the practical answer to concerns about disclosure of unfair or misleading information is careful focus on what should be disclosed. If there is only disclosure about investigated complaints which have led to a regulatory outcome then what would be disclosed would be the result of investigation and evaluation. Fear of disclosure of malicious or unfounded complaints would not be justified.

It might also be worth considering whether there should be disclosure of single or stale matters. It may be that little if any real information is provided if a single matter is disclosed or if a relatively ancient episode continues to be disclosed. Treating stale matters as such is somewhat analogous to the evolving “right to be forgotten” that is of increasing importance in which so much personal information is available and for so long on the internet. As well, it may be worth considering whether contextual information could also be provided, for example the average number of such complaints for licensees generally or, say, family law lawyers specifically.

Up to this point, the discipline process has not been discussed. The main point to be made here is that allowing transparency about some investigated complaints and a formal discipline record are different things. There is no need and no apparent reason for the information available to the public also to be information that is treated as relevant by the Law Society Tribunal in assessing appropriate discipline penalties. There is good reason to limit Tribunal panels to consider only findings of professional misconduct by prior panels.

But the “right to be forgotten” discussion raises a point that some have made about formal discipline histories. To use an extreme example, should there continue to be transparency about a reprimand given 25 years ago absent any subsequent proceedings? Discipline panels routinely conclude that a stale disciplinary history is irrelevant for current purposes. Perhaps it should also irrelevant for the public purposes.

If it is accepted that potential clients have insufficient information to properly assess the quality of lawyers and paralegals (leaving them instead reliant on brand advertising, irrelevant and misleading “awards” and photographs of reassuring faces), then it follows that we should be thinking carefully about whether further information can be disclosed. It also follows that it is proper to think about the utility and the fairness of further disclosure.

It should be recognized that lawyers and paralegals will almost inevitably resist disclosure of complaints information, even investigated complaints leading to regulatory action. But it should also be recognized that there is another perspective that must be considered which, as always, has no advocate.

[1]      Complaints can come from clients, other parties, other lawyers, judges and the Law Society itself. While professional regulatory process is largely reactive, the Law Society itself initiates the complaints where matters come to its attention that may deserve further consideration.

[2]      The Law Society Act provides that the Law Society has certain investigative powers where the conclusion is reached that there is sufficient information indicative of professional misconduct or lack of capacity. In these circumstances, PRD says that a complaint has been instructed for investigation.

[3]      Some of those transferred for prosecution are also closed with diversion.

[4]      This interplay between the competition authority and the legal services regulatory provides an example of a productive interplay in which competition issues are raised while the regulator keeps independence.

[5]      Unlike our law societies, the Law Society of England and Wales is the representative of and advocate for solicitors.

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Access to justice needs access to research

First published on slaw.ca

In December, the UK Competition & Markets Authority released its Legal services market study focused on individual consumer and small business experience of purchasing legal services in England and Wales. Not surprisingly, this report (the “CMA Market Study”) found:

Overall, we have found that the legal services sector is not working well for individual consumers and small businesses. These consumers generally lack the experience and information they need to find their way around the legal services sector and to engage confidently with providers. Consumers find it hard to make informed choices because there is very little transparency about price, service and quality.

This finding will be entirely unsurprising to anyone with passing familiarity with the substantial body of work, in Canada and elsewhere, showing unmet legal needs and lack of access to justice and legal services.

Naturally given the mandate of the Competition & Markets Authority, the CMA Market Study comes at these issues from a market perspective. This report looks at whether the market for legal services works effectively and concludes that it does not. The above quotation from this report makes the fundamental point which is that individual consumers and small businesses are not generally sophisticated purchasers of legal services and the providers of legal services provide very little transparency about price, service and quality. Entirely by coincidence, I wrote about this very point in my last column Access to Justice and Market Failure which focused on information asymmetry and market failure. As the CMA Market Study says:

Our market study was prompted by a range of concerns raised by interested parties, including concerns relating to the affordability of legal services, the high proportion of consumers that were not seeking to purchase legal services when they had legal needs (‘unmet demand’) and the possibility that regulation might be dampening competition.

Most of these concerns can be linked to the fact that the legal services sector is characterised by incomplete or asymmetric information. Consumers are often unable to judge quality before (or sometimes even after) they choose to buy a legal service. Information asymmetries can give rise to consumer protection issues, which provides part of the rationale for sector-specific regulation.

If legal services are to continue to be predominantly delivered by the market rather than the state (through legal aid or otherwise), it is important to be clear thinking about the realities of markets. This market study is an important evidence-based contribution to that thinking. But the point of this column is not to focus on the CMA Market Study.

The point that I want to make in this column is to highlight the importance of high quality research to truly addressing problems of access to justice and unmet legal needs. Not an exciting point to be sure but an important one, I think.

 In reading the CMA Market Study, I was reminded of another quite different study. In 2009, the Department of Justice Canada released a report prepared by Ab Currie of its Research and Statistics Division. The report was entitled The Legal Problems of Everyday Life – The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians. This is a fundamentally important work that looked the everyday experiences of ordinary Canadians. The first paragraphs of this report (the “Justice Canada Report”) are important:

The problems of civil justice, of access to civil justice and of unmet need for service in civil justice are most commonly studied from the point of view of the justice system, mainly with regard to the courts. The large, and reportedly increasing, number of self representing litigants crowding the courts is the issue that currently dominates both public and professional discourse. This is certainly an important problem, one that is as much a problem for the courts, mainly with respect to justice system efficiencies, as it is for the individuals who find themselves adrift without professional assistance in the complex and unfamiliar environment of the civil courts.

However, a wider perspective than one that begins with the courts is required to understand the full breadth of civil justice problems. It is widely accepted that many people with serious civil justice problems do not have access to the courts and thus do not appear as un-represented litigants. It is also part of the growing orthodoxy that many problems could be better resolved using alternative means, without engaging in expensive and lengthy court proceedings.

Two points can be taken from this quotation. The first is that access to justice/unmet legal needs is not just about what happens in the courts. Given our training as lawyers and especially for litigators, it is not surprising that we tend to see these issues as being about courts. To a hammer, everything is a nail.

The second and more important point is that there are a number of different and necessary perspectives from which to understand the extent and causes of unmet legal needs. The Justice Canada Report looked at the unmet legal needs of ordinary people by focusing on the problems of everyday life. The CMA Market Study examines the operation of the market for legal services. Neither report focuses on non-market provision of legal services through legal aid and otherwise or effect of the law and legal institutions on access to justice. This is no criticism – to the contrary. Understanding how a complex system works, does not work and should be reformed requires thoughtful analysis looking at the different component parts of the system separately and together.

Returning to the Justice Canada Report itself, it is significant in several ways. The first is that it is a Canada-wide report. The importance of this cannot be underestimated. We have a real risk of parochial understandings and approaches especially given how much of legal services is within provincial jurisdictions.  The second is that there is significant efficiency and efficacy in doing serious research and analysis at the national level. To state the blindingly obvious, access to justice and unmet legal needs are not only local problems even if some of the solutions must be.

Further, the Justice Canada Report had a significant on subsequent work and understanding. The Ontario Civil Legal Needs Project undertaken as a joint research project of the Law Society of Upper Canada, Legal Aid Ontario, and Pro Bono Ontario  lead to Listening to Ontarians focused on demand for legal services among low and middle-income Ontarians and The Geography of Civil Legal Services in Ontario focused the demographic characteristics of the Ontario population and the distribution of legal services. In 2011,  a colloquium was held at the U of T law school which lead to Middle Income Access to Justice,a collection of essays  about civil justice issues from Canada, Britain, the United States, and Australia. Most recently, the Canadian Forum on Civil Justice has undertaken the Everyday Legal Problems and the Cost of Justice in Canada National Survey which addresses the costs to individuals and to society of addressing and failing to address legal problems. In providing these examples, I don’t want to suggest direct causal lines from one project to another and I’ve not attempted to create a comprehensive listing of important work in this area. The point that I make is that each important piece of research from one perspective enables and betters further research. Understanding that there are unmet civil needs leads, for example, to consideration of the costs of addressing and failing to address legal needs.

Earlier this year,  White House Legal Aid Interagency Roundtable Civil Legal Aid Research Workshop Report was released (not exactly a consumer-friendly name). Richard Zorza describes this report in his Access to Justice Blog

 Formally titled White House Legal Aid Interagency Roundtable Civil Legal Aid Research Workshop Report, this Report represents a major milestone in one of the [U.S. Department of Justice Office for Access to Justice’s] most important initiatives.  It is no accident that since the Office was created, and particularly since [the Legal Aid Interagency Roundtable] was set up, we have seen an explosion of research interest in access to justice.  Prior recommendations to create research capacity in this field went unheard ever since the 1980’s when this capacity at [Legal Services Corporation was closed down.

Again, the point o f this column is not to examine the substance of this US report which is well described in Richard Zorza’s blog. Rather, the quotation above shows a parallel with the impact of the Research and Statistics Division of the Department of Justice in Abe Currie’s Justice Canada Report. Research capacity matters. Sadly, whether the US research capacity continues must now be uncertain given the recent election. In England and Wales, the CMA Report provides important insight but the ongoing research capacity of the Legal Services Board is important as is the fact that this research is not just from the lawyers’ perspective. This is inherent in the history and mandate of the Legal Services Board as well as a reflection of the impact of the LSB Consumer Panel.

So what is the punch line to all of this. The starting point is that research capacity matters. The next point is that good research leads to more good research and analysis. A virtuous cycle follows. Further, we cannot effectively address serious systemic issues like access to justice and unmet legal needs by intuitive responses that reflect our own limited perspectives. We need solid research and analysis.

What this leads to is to make two final points. The first is to encourage the Department of Justice to continue the good work that is reflected in the Justice Canada Report. While we now have further capacity, there is real value in maintaining  long term research capacity and Department of Justice is a natural place for such capacity given its breadth, depth and resources.

The second comes out of a recent discussion. There are many players in the legal system including attorneys general and their ministries, legal aid providers, the courts, law societies and universities. Each are busy doing their own work and thereby generating information/data about the justice system. While it is understandable, each player sees the value of its own information to itself but will not see the value to others including to researchers. Perhaps the time has come to take an open data approach to information about the legal system with a view to encouraging research and analysis addressing access to justice and unmet legal needs.

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Debatable: Robo-Advising Could be a Boon for Access to Justice

First published in OBA’s Just Magazine as a debate with Joe Groia

For hundreds of years, lawyers have spent their time and expertise providing valuable assistance to their clients.

Lawyer incomes have remained reasonably stable in real terms over the decades. Statistics Canada reports the median professional income for Ontario lawyers was just over $125,000 in 2014. Over time, lawyer professional incomes have been reasonably well correlated with family incomes. This is not surprising. Intelligent, well-educated, hard-working lawyers have generally maintained their economic position – and lawyer incomes are tied to the ability of clients to pay their fees.

Considering lawyer incomes and overheads and the number of hours that can be billed in a year, it inevitably follows that lawyers charge fees in the hundreds of dollars per hour (whether described that way or not).

For some problems, this works pretty well. Limited lawyer time is required for a residential real estate transaction or a drafting a will. Most people buying or selling real estate or with an estate have the money to pay for the necessary legal work.

For other legal problems, there is a problem. In criminal law, family law and personal injury, the number of required lawyer hours means that many ordinary people can’t afford to pay. Ironically, many lawyers couldn’t afford themselves. This reality plays out differently in different areas. In personal injury law, lawyers are paid out of the ultimate compensation, if any. In family law, most litigants simply don’t use lawyers. In criminal law, legal aid assists the poor. For the middle-class, being an accused can be ruinous. Our justice system is a mostly unaffordable wonder for ordinary people.

What isn’t obvious is how little lawyers actually do for ordinary people. Surveys repeatedly show that lawyer work is generally limited to criminal law, family law, personal injury, real estate and estates law. Studies have shown that over 85% of all “justiciable events” are addressed by ordinary people without legal assistance.

Lawyers don’t offer services if people won’t pay for them and … lots of legal issues can’t be addressed at a cost of hundreds of dollars per hour.

So why would people not go to lawyers when facing a legal issue? The practical answer is that lawyers don’t offer services if people won’t pay for them and that lots of legal issues can’t be addressed at a cost of hundreds of dollars per hour. The result is legal needs that are unserved and underserved by lawyers.

Two other examples are helpful. Like lawyers, investment advisors spend time offering investment advice and transactional assistance. Unlike lawyers, investment advisors commonly charge fees based on the value of the investments involved. This means that investment advisors limit their clientele to those who have sufficient investable assets to pay their fees. So those with insufficient assets leave their money in their bank accounts, buy GICs or perhaps put their money in expensive bank mutual funds.

Tax assistance provides another example. Taxes can be complicated and difficult. For some, accountants prepare taxes. Others have used bookkeepers or tax preparers. But historically, many late April nights have been spent over kitchen tables trying to fill out tax forms.

In 2016, many people now use Quicken TurboTax or comparable products. Instead of teaching tax advisors how to spent their time preparing tax returns, Quicken has created a robo-advisor that can be downloaded and used at home. While the TurboTax software is no doubt expensive to create and maintain, the additional cost of a TurboTax download is relatively negligible. This low “marginal cost” means that the unit price is low. Ordinary people who once spent late nights stressing out over their tax returns now use a robo tax advisor instead.

In 2016, investment assistance is also provided by robo-advisors. The growth in the use of robo-advisors over the past several years is reported to have been significant. What is most interesting is that robo-advisory services are being provided to clients who don’t have sufficient investable assets to merit the interest of a traditional investment advisor. The same “low marginal cost” economics that permit TurboTax to be offered at relatively low prices apply here too.

So what about law? There are parallels between legal advice, tax advice and investment advice. Where provided through the traditional professional advisor, there are unserved needs because the labour-intensive expert model has lower limits to the price at which it can deliver. But where technology and capital are applied, lower priced services can be delivered.

This is not radical imagining. Examples already exist. The most recently, the Manchester Guardian reported “Chatbot lawyer overturns 160,000 parking tickets in London and New York”. While less newsworthy, Neota Logic and Littler Mendelsohn deliver robo compliance advice to Littler’s HR clients. This is not to suggest that a robo-advocate in court is desirable or even plausible. But there are aspects of existing legal services that lend themselves to robo-advisors. An obvious example is family law where complicated court forms and rules could be addressed with robo-assistance. Notably, a Quicken Family Law product was introduced in Texas several years ago only to be challenged by the state bar as unauthorized practice of law.

Of course, it is speculative to say that robo legal advisors can substantially address currently unserved and underserved legal needs. But the fact that this is speculative is because only licensed lawyers and paralegals are now permitted to provide legal services. And the ability to provide software-driven internet-delivered intelligent services is obviously increasing. What is possible today is not what will be possible in the years to come.

For some lawyers, this is scary. Some of what we do may well be more cost-effectively done in new ways. But lawyers don’t come close to fully serving the legal needs that exist in society. There can be no ethical justification for prohibiting that which lawyers don’t actually provide nor, more scarily, what can be effectively provided at lower cost. And there may even be opportunities for lawyers up to new challenges!

Ultimately, we can attempt to prohibit new legal services that lawyers cannot cost effectively provide. We can ignore new providers hoping that nothing goes wrong. Or we can thoughtfully regulate legal services in the public interest including “robo-lawyers”.

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Lawyers and Audits – The new Joint Policy Statement effective December 1, 2016

Shareholders, investors, lenders and others have a vital interest in proper financial disclosure by entities in which they have an economic interest. Making sensible business decisions is often difficult. It is impossible without proper information. Audited financial statements play a central role in financial disclosure.

Disclosure is a good thing and a bad thing

Some assets and liabilities are simply reflected in financial statements. Some are not so simple. Contingent assets and liabilities can be tricky. The contingency may or may not arise. Assuming the contingency, the value of the contingent asset or liability is often uncertain. The uncertainties may be such that a value is not fairly included in the balance sheet but a note may be appropriate to alert the reader to the risk. What should be disclosed and how is a matter of importance for auditors who are called upon to opine on financial statements.

Lawyers are commonly involved in significant contingencies. Whether in civil, regulatory or administrative matters, lawyers pursue and defend their clients’ interests. Whether the client will be successful, or not, can be uncertain as may be the quantum. Assessment of the current value of contingencies can be difficult. It is no surprise that clients and auditors look to lawyers to assist in the evaluation of these contingencies.

But there is a complication. These contingencies are determined through an adversarial process. The client is entitled to professional confidentiality and privilege in its dealings with counsel.

On one hand, disclosure is necessary for fair evaluation of the financial situation of the client. On the other hand, disclosure may adversely affect the financial situation of the client by compromising the interests of the client in the adversarial process. Disclosure is a good thing from the one perspective. Admissions against interest are a bad thing from the other. Assistance from lawyers makes for better financial disclosure. But assistance that compromises privilege thereby compromising the client’s interests is a bad thing.

Ironically, perfect disclosure of a client’s financial information may compromise the client’s financial prospects.

A new Joint Policy Statement

In 1978, the Canadian Bar Association and the Canadian Institute of Chartered Accountants released the Joint Policy Statement on Audit Enquiries (1978). That Joint Policy Statement sought to advance two key goals. The first was to practically address the inherent conundrum described above, to maximize financial disclosure while minimizing the adverse financial consequences of doing so. The second was to allow two quite different professions to communicate with each other.

Nearly forty years later,  the Canadian Bar Association and the Auditing and Assurance Standards Board of Chartered Professional Accountants Canada have now replaced the old Joint Policy Statement.

The new Joint Policy Statement is effective for inquiry letters dated December 1, 2016 or later.

What has changed?

In some respects, Joint Policy Statement is unchanged. There is value in established practice. For example, “claims” and “possible claims” are important concepts under the Joint Policy Statements.  Tinkering with the definitions of these important terms is tempting. But the likely consequence would be that some lawyers would continue to use the old definitions and new definitions might contain new difficulties. There is no change to the meaning of “claims” and “possible claims” which remain key definitions.

Another important principle is that lawyers are not to express opinions in audit response letters.   Management evaluates claims and possible claims. Lawyers advise whether the management evaluations are reasonable. This approach reflects that auditors rely on management in the audit process and seeks to protect privilege by not having lawyers express their opinions. This approach is unchanged.

But there are changes. Among the more significant changes is the express inclusion of in‐house counsel, recognizing the expanded role of in‐house counsel in client matters. Another significant change seeks to resolve concerns expressed by the legal profession regarding communication protocols with the auditors, particularly with respect to the timing of inquiries and responses.

A further significant change reflects the emergence of new audit standards in recent years. In 1978, there was just one financial reporting framework. In 2016, financial reporting frameworks include the International Financial Reporting Standards (IFRS), Accounting Standards for Private Enterprises (ASPE), Accounting Standards for Not-for-profit organizations (NFPOs). Rather than seeking to have lawyers learn and apply new and different frameworks, the Joint Policy is written on a framework-neutral basis. Audit inquiries are to be written so that audit responses can be written without reference to the applicable framework. The Joint Policy seeks to allow lawyers to be lawyers and auditors to be auditors and yet to communicate with each other.

Assistance is available

The CBA has provided on-line tools to assist lawyers with the new Joint Policy Statement as follows:

The CBA is also providing a webinar on May 25, 2016 entitled The New JPS: What You Need to Know

 

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Innovate or be innovated

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.

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Jack Batten on Big Law 40 years ago

1976 Saturday Night

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So many lawyers, so many unmet legal needs

My article So many lawyers, so many unmet legal needs is now published in the July/August 2015 edition of the ABA Law Practice Magazine

PDF Version of Article

So many lawyers

 

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July 7, 2015 · 5:40 pm

Partnership has its limitations

First published on slaw.ca

Perhaps because most law firms are partnerships, we don’t pay much attention to the practical implications of the partnership structure. This is understandable as there isn’t much of an alternative in our existing system at least so far as private practice is concerned.

A law firm partnership is very different than most ordinary businesses. In most businesses, the owners of the business are not involved in the business whether as workers or as managers. In contrast, law firms are owned and managed by people who provide services to customers (often with the assistance of others). In a law firm, the partners are the owners, the managers and the workers.

The combination of ownership, management and service provision in a law firm is particularly significant in that the partners provide the equity capital. In an ordinary business, equity capital is commonly raised through private capital or public capital. In a law firm, labour and capital come from the same source as does management – the partners.

There is another important difference between law firms and most other businesses. In many law firms, it is common for more young lawyers to be hired than will ultimately remain with the firm. Of course, some law firms are simply collections of sole practitioners who share overhead and perhaps an associate who will either join the firm as another sole practitioner once his or her practice is sustainable on its own or will leave the firm.

But in many law firms, a number of associates will be hired only some of whom will become partners. In these law firms, the model is “up or out” with some young lawyers becoming partners and others leaving. In the academic literature, this is sometimes described as the “tournament of lawyers”. Young lawyers compete with each other to stay with the firm. Academics once viewed this as a model applicable just to young lawyers but more recently the “tournament” has been said to continue throughout a partner’s career. Partners are said to continue to compete to continue as partners. While it was once less common, partners who are not seen as sufficiently valuable to the firm are often asked to leave.

This “tournament” is said to be a highly efficient (if perhaps harsh) way of organizing people. Unlike the ordinary business where there is hierarchical management, the lawyers in the “tournament” mostly manage themselves by figuring out what is necessary to win the prize. One of my partners once described this as a pie eating contest where the prize is more pie.

There must be a lot to be said for this structure as it clearly has been successful. One might hypothesize that it would be difficult to organize skeptical independent thinking professionals successfully in a traditional business organization. This structure is economically low cost in terms of management.

Yet the last thirty years have clearly shown that this is not the only effective way of providing legal services. The in-house model, whether business or government, has shown that ordinary business organization can deliver effective and sophisticated legal services. The in-house law department is not owned or capitalized by its lawyers. Hierarchical management is common. The “up or out” tournament model is not used in-house (or at least to the same extent).

There is of course one fundamental difference between the in-house lawyer and the private practice lawyer, namely finding work. The in-house lawyer exists to serve one client. The number and nature of the in-house lawyers is driven by the needs of the employer. For private practice lawyers, part of the tournament is finding and retaining clients for the lawyer and the firm.

So what are the implications of these observations about business structure. One implication may be diversity. It seems clear that in-house law departments do a better job of attracting and retaining women and, it seems, visible and other minorities. While other factors may well also be in play, I suspect that the nature of the “tournament” model is part of the reason. Where early success is determined by attracting work from within the firm (and thereby developing and getting better work) rather than by work allocation based on reasonably objective skill assessment and assessment of potential, there is ample opportunity for unconscious bias and even actual prejudice to have effect. I recently attended a sophisticated in-house group and found the explicit targeting of diversity results to be very interesting with managers being explicitly judged, in part, on meeting targets. In contrast, it would be difficult to identify who to similar incent and judge in a law firm where, mostly, no one is “in charge”. Causing change in private practice is indeed like managing cats given the very limited actual day-to-day management in law firms.

There are other significant issues to consider. In a private practice firm, it is difficult for partners to imagine doing things very differently. Why would a partner potentially render himself or herself redundant? Where a partner is mostly rewarded for their contributions to the firm, what incentive is there to invest time and effort in doing things in a way other than by partner contributions. The limited extent to which law firms are truly managed means that it is difficult for truly innovative decisions to be made (and implemented) rather than to just making the existing way of doing things better.

The combination of ownership with service provision is also important. In most firms, partners take out the profits annually and only keep enough equity capital in the firm as is required to provide infrastructure for existing practices. Partners have little, if any, economic interest in investing in anything that does not pay off in bettering existing practices. A significant long term investment in innovation is not very likely to provide returns for existing partners. Partners naturally prefer to enjoy the fruits of their labour (and capital). In contrast, the owners of a business with an in-house law department can make significant changes and innovations that are in the interest of the business but perhaps not in the interest of individual lawyers.

We see some of these challenges to innovation playing out in what some call “new law” where ownership is separated from those providing legal services. Cognition is a Canadian example in which legal services are being provided differently and attractively to clients. While the individuals who provide legal services are being compensated for their work, the long term enterprise value is enjoyed by the entrepreneurs who own and built the business. Yet it is clearly more difficult to finance a business when equity capital is not permitted from private or public markets and is not contributed by the lawyers doing the work. This limits growth and innovation.

All of this suggests to me that law firms may be particularly resistant to business and social innovation because of their nature. That said, it isn’t clear what to do with this observation if true. There is much about law firms that is clearly good for clients and for the lawyers in those firms. From a regulatory perspective, it is much easier to regulate when the owners, managers and workers are all regulated and subject to sanctions that can affect their future livelihoods.

There seems to me something of a “baby and the bath water problem”. Can we encourage/permit innovation in ways that aren’t too disruptive? I also wonder if the existing model isn’t more powerful than it appears since there is clearly room for business structure innovation despite limited actual innovation. It also seems odd to me that we know so little about the business of law both from theoretic perspectives and from empiric perspectives.

And so this column is more by way of musing and thinking out loud than anything else. As always, but particularly on this topic, comments welcomed!

______________________

[1] Small law firms are quite like other small proprietorships where the owner is actively involved in the business.

[2] Tournament of Lawyers, 1991, Galanter and Palay

[3] The Elastic Tournament: The Second Transformation of the Big Law Firm, 2008, Galanter and Henderson, 60 Stanford Law Review

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Self Regulation

Independence and Self-Regulation: I’m OK but I’m Not So Sure About You!

Indepedence and self-regulation

It is entirely human to fail to appreciate when one’s judgment is affected by a conflicting personal interest or duty. Our conflicts rules reflect this problem. Where there is a substantial risk of impairment of representation, clients get to decide whether to accept that risk. Where representation will be materially impaired, lawyers cannot act even with client consent.

This concern about conflicting interests is well rooted in behavioural psychology. Dan Ariely, an author and a professor of psychology and behavioural economics[i], writes on this topic[ii].

In his book The Honest Truth about Dishonesty, Professor Ariely describes an experiment in which participants were asked to view and rate sixty paintings. Each participant was paid an honorarium. The wrinkle in the experiment was each participant was told that their honorarium was sponsored by one of two art galleries. Each painting was presented as if it came from one or the other sponsoring gallery. After rating the sixty paintings, each participant was asked whether the sponsor’s logo affected their ratings. The participants universally thought not. Yet they were wrong. There was a substantial effect. And the effect increased with the amount of the honorarium. It is startling that independent judgment could be so easily skewed and that the participant wold not perceive the skewing.

Professor Ariely says that “While we may realize that such conflicts exist and that they influence others, we fail dramatically in perceiving both the extent of their effects and our own susceptibility to them”[iii]. He describes a lecture that he gave to about two thousand members of the American Medical Association during which he asked the physicians whether they felt that their medical judgments were affected by conflicts of interests with their hospital, drug manufacturers, insurance companies, medical device manufacturers or pharmaceutical sales representatives. Not a single physician raised their hand. But nearly ever hand was raised when he asked whether the audience believed that the majority of other physicians in the room were influenced!

In a democratic society that honours the rule of law, independence of legal counsel from the state is particularly important. This is particularly true in criminal and charter cases. But independence matters in many other areas given the omnipresence of government regulation and the power, political and economic, of the state in modern society.

Canadian law society regulation takes this thought of independence to another level. Canadian law societies, unlike the regulators in Australia and England, are independent of the state. Unlike in the United States, Canadian law societies are also independent of the judiciary. In this way, independence of individual lawyers is protected both by limiting potential control of individual counsel by the state or the judiciary and by the independent establishment of codes of conduct and other rules. This independence is achieved by the election of law society benchers by lawyers and, in Ontario, regulated paralegals.

There are advantages to self-regulation other than independence. Legal practitioners are well positioned to identify issues that need to be addressed in regulation, to establish appropriate codes of conduct and to sensibly judge professional conduct. It seems reasonable to think that a self-regulated profession is better attuned to its professional responsibilities.

There is of course a risk that self-regulation can be self-interested regulation rather than regulation in the public interest. It is not so long ago that there was debate about the primacy of the public interest although that issue is well-settled now. But mostly, there is little if any practical dissonance between the public interest and the interest of the profession. For example, the profession easily accepts that its members should be competent to practice and practice ethically.

But there are issues where the public interest and the interest of members of the profession are not entirely aligned, sometimes even opposed. There are also issues where interests of different parts of the profession differ from each other and from the public interest. In previous columns, I have referred to scholarly writing about some historic examples.

There is now a limited safeguard currently in place against self-interested self-regulation. In Canadian law societies, typically twenty percent or so of benchers are non-lawyers. These non-lawyer benchers are chosen by government in some provinces and by other means in other provinces. This is valuable both to assist the law societies in avoiding professional self-interest and by adding to the perspectives and expertise at the table when decisions are being made.

But the substantial majority of benchers are elected by the profession and are themselves regulated by the law society. Of course, there are advantages to elections for benchers. Because benchers are elected, their decisions will likely have greater credibility with their electorate. Elected benchers are more likely to understand the issues facing the profession. But there are problems as well. As in the painting rating experiment described by Professor Ariely, elected regulators will have a sense of loyalty to their electors; partly in gratitude for election, partly because of an interest in re-election and partly because a natural sense of a representative obligation to one’s electors. All of this compounds the potential bias that exists from regulating one’s self.

There is another difficulty with election in that the diversity of the profession is not necessarily reflected in election results nor are the required skills necessarily found in those elected. One common refrain in Ontario comes from solicitors who are concerned that their perspectives (and, tellingly, their interests) are not sufficiently reflected in election results.

The just-released report of the Canadian Bar Association Futures Initiative addresses this issue amongst a number of other important issues relating to legal education, innovation and ethics/regulation[iv].

Recommendation 11 from the Futures Initiative report is that:

The governing bodies of law societies should be made up of elected lawyers, as well as a significant number of appointed lawyers and non-lawyers. The appointed governors should be selected by an independent appointment process designed to fill gaps in experience, skills and diversity.

As the Report says:

Electing 80% of law society directors is problematic because it does not necessarily provide appropriate diversity of expertise, perspective, and lived experience; it can cause overrepresentation of some parts of the profession, and under-representation of others. Election of law society directors tends to result in a board that is older than the profession generally and less demographically diverse. Bringing different perspectives to governance serves the public interest because it grows capacity from under-represented groups within the leadership of law societies. It is also crucial to strengthening diversity and inclusivity in the profession, since the increased presence of diverse groups in the profession cannot alone affect the governing norms, privileges, and access to opportunities within the profession.

Similarly, the election of 80% of law society directors lends some truth to the perception that self-regulation may tend to protect the interests of the profession. Running for election risks creating the false belief among some law society directors that their role is to represent their electors, which may result in election platforms designed to be attractive to that group.

Not surprisingly, elected benchers tend to be supportive of the current approach to selecting benchers. This is presumably in part because there is value to election. But it is probably true that elected benchers, being human, tend to think that a process that selected them must be a good process and that they themselves act entirely in the public interest despite being members of the profession and being elected.

To be facetious, just like the physicians in Professor Ariely’s audience, I have no concern about myself as an elected lawyer bencher but I do wonder about others! Less facetiously, it seems clear that being elected, and the proximity of the next election, affects decision-making at the bencher table particularly where professional self-interest is at stake. It also seems clear that greater diversity of perspective, experience and expertise would be valuable to bencher decision-making.

__________________________

[i] Professor Ariely’s laboratory at Duke University is the wonderfully named Center for Advanced Hindsight.

[ii] Predictably Irrational, The Upside of Irrationality, and The Honest Truth about Dishonesty

[iii] In his foreward as editor of The Best American Science and Nature Writing for 2012.

[iv] By way of full disclosure, I partcipated in the Futures Initiative as Lead of the Ethics/Regulatory Team together with a great team comprised of Kris Dangerfield of the Law Society of Manitoba, Lisa C. Fong of Ng Ariss Fong in Vancouver, Tony Kavanagh of Bueti Wasyliw Wiebe in Winnipeg, Harvey L. Morrison, of McInnes Cooper in Halifax, Professor Marie-Claude Rigaud of the Université de Montréal and Professor Alice C. Woolley of the University of Calgary.

 

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Not Both Ways

You Can’t Have It Both Ways

First published on slaw.ca

Either limit the regulatory monopoly or provide for the efficient and effective delivery of legal services for all legal problems

Access to justice and legal services is a central challenge both for society and for the legal profession. The extent to which members of the public are unserved, under-served or inefficiently served is a difficult issue for lawyers being both a challenge to existing practice and an opportunity for innovation.

As suggested in earlier columns, it seems to me that this access question raises central ethical questions. If there are some legal services which are not provided by lawyers[i], how can the current regulatory restrictions be justified for those services. If there are some legal services that can be effectively and properly be provided in other ways, how can current regulatory prohibitions against other means of legal service delivery be justified.

Broadly speaking, there are three potential supply-side policy responses[ii] that arise when one examines unmet legal needs. The first is now of long-standing. It is clear that a fully trained lawyer is not necessarily required for the effective and proper delivery of all legal services. Whether by expansion of paralegal scope of practice or by introducing new types of paraprofessionals, this is one of the tools to consider. The second is the controversial topic of alternative business structures which is essentially about accessing new resources, financial capital as well as business and technological, to develop new ways of providing legal services beyond the small professional consultancy model. The third is not yet well understood. If we cannot find ways to effectively have regulated lawyers, paralegals or alternative providers deliver legal services in some areas, there can be no justification for prohibiting anyone but licensees from servicing those areas.

There are two different area of demand side perspectives to consider. The first is areas of demand that are currently served by lawyers and paralegals. The second is areas of demand that are currently unserved or underserved. The point of this column is to help better understand the second by reference to a recently released study.

In 2013, the UK Legal Services Research Centre released a report entitled Civil Justice in England and Wales. There are many points of interest but I only propose to highlight a few.

The first is that the study found that many “justiciable” problems are not seen by the public as being “legal” problems. To quote the report:

Just over 10 per cent of problems reported through the 2010 CSJPS were characterised by respondents as “legal‟ (despite all problems involving justiciable issues), with 45 per cent being put down to “bad luck‟ or “part of life‟. Almost a third of respondents had no understanding of their rights at the time they first experienced problems, with a further one fifth having only a partial understanding.

Obviously, if someone does not even understand that a justiciable problem is legal in nature then legal assistance will not be sought. This practical observation is reflected in the further observation that:

Respondents sought advice for their problems from a wide range of advisers. Solicitors were the most commonly used source of advice – although Citizens Advice Bureaux, local councils and the police were also frequently used. Use of the Internet for advice seeking was observed to have increased still further to 24 per cent of problems. This continued the upward trend from 19 per cent in wave 1, 16 per cent in the 2006-9 CSJS, and just 4 per cent in the 2001 CSJS. The manner of conclusion of problems was, unsurprisingly, related to problem resolution strategy. For example, those who obtained advice were more likely to see their problem conclude through a formal process.

While it is perhaps reassuring that solicitors were the most common advisors for legal problems, the explosion of using the internet for advise seeking is noteworthy. But the limited use of legal advice is also significant. For those who sought advice in respect of justiciable issues, 25.9% sought advice from a barrister or solicitor. A broad range of other non-legal advisors also provided assistance.

This UK research helps us better understand similar Canadian research. In 2009, the Federal Department of Justice released The Legal Problems of Everyday Life. This report helps us explore the nature of justiciable problems experienced in Canada. The following chart from The Legal Problems of Everyday Life shows both the nature of justiciable problems and the those that cause problems for the public

Problem Type Number of
Problems Overall
Number of Problems
That Made Daily Life
Difficult
Per Cent
Consumer 1,480 639 43.2%
Employment 1,421 978 68.8%
Debt 1,444 721 49.9%
Social Assistance 49 38 77.6%
Disability Pensions 48 43 89.6%
Housing 95 65 68.4%
Immigration 35 29 82.9%
Discrimination 91 64 70.3%
Police Action 103 59 57.3%
Family: Relationship Breakdown 224 208 85.2%
Other Family Law Problems 68 63 92.6%
Wills and Powers of Attorney 330 228 79.0%
Personal Injury 161 136 88.9%
Hospital Treatment
and Release
86 69 84.1%
Threat of Legal Action 51 29 65.9%
Total 5,655 3,369 59.6%

The Legal Problems of Everyday Life (at p. 56) is the source of the information noted in an earlier column that legal assistance is sought for only 11.7% of justiciable problems.

By contrast, 16.5% of those surveyed took no action at all but for a reason, 22.1% sought assistance but not legal assistance and 44.0% handled the problem on their own. Only 5.7% took no action because they felt that the problem wasn’t important enough.

The analysis of the use of non-legal assistance to address justiciable problems is interesting:

Understandably, respondents experiencing problems involving the threat of legal action were least likely to use a non-legal source of assistance, 9.8 per cent …. On the other hand, respondents experiencing a personal injury problem were most likely to consult a non-legal source of assistance, 42.2 per cent of all people experiencing a problem of that type …. Employment, 35.8 per cent …, housing, 33.7 per cent … and problems related to disability benefits, 33.3 per cent … are other areas in which respondents were relatively highly likely to resort to non-legal sources of assistance. It is particularly interesting that 35.8 pre cent … of respondents who experienced a problem related to wills and powers of attorney said they used some form of non-legal assistance. This is a problem area that would seem to be pre-eminently within the legal domain.

It is noteworthy that people with personal injury problems and problems relating to wills and powers of attorney are particularly likely to seek non-legal advice. It is less surprising that employment, housing and disability benefit problems are relatively likely to be addressed with non-legal assistance.

For the 16.5% who did not address their justiciable problem (and did not seek any assistance yet thought their problem important), approximately one-third thought that there was nothing that could be done, approximately 10% were uncertain of their rights and approximately 10% thought that taking action would take too much time.

In 2010, the Ontario Civil Legal Needs Project released its report Listening to Ontarians. This study proceeded on a different basis than the two studies previously mentioned. Rather than examining all justiciable problems (whether or not understood as legal problems), the Ontario Civil Legal Needs Project considered what Ontarians understood to be a “civil legal problem or issue”[iii]. As the report put it:

Our survey indicated that 35 per cent of low and middle-income Ontarians said they had experienced a civil legal problem or issue in the last three years. People mentioned a broad range of problems or issues that caused them or someone in their household to need legal assistance, including problems with a family relationship, wills and powers of attorney, real estate transactions, housing or land, employment, personal injury, money or debt, legal actions, disability-related issues, traffic offences, immigration, and small or personal business issues.

Yet even where a legal problem or issue was recognized as such, approximately 30% did not obtain legal assistance and

One in three respondents among low and middle-class Ontarians said they prefer to resolve their legal needs by themselves with legal advice, but not necessarily with the assistance of a legal professional. Legal advice was sought from a variety of sources, both legal and non-legal. In addition, many civil problems are resolved outside the formal justice system.

What can be taken from all of this is that a very low proportion of justiciable problems are addressed with legal assistance. Non-legal assistance is more common than legal assistance. Justiciable problems are not understood to be legal problems. Even where a problem is understood to be a legal problem, a substantial proportion of the public does not seek legal assistance.

In this context, it is clearly difficult to justify permitting only lawyers (and in Ontario regulated paralegals) to engage “in conduct that involves the application of legal principles and legal judgment with regard to the circumstances or objectives of a person” to quote the Law Society Act (Ontario). If only “legal service providers” are permitted to assist then ways must be found for legal services to be available and desirable. Alternatively, there is no real alternative but to allow others to provide these services.

The choice must ultimately be between limiting, or even ending, the regulatory monopoly and ensuring that services can can actually be delivered within the regulated sphere.

_________________________

[i] and regulated paralegals in Ontario and notaries in British Columbia

[ii] I examine this issue for the purposes of this column without examining two other hard access questions namely (i) the source of payment for legal services (i.e. legal aid or pre-paid legal insurance) and (ii) the extent to which the complexity of the administration of justice is part of the access problem.

[iii] The Quantitative Report by Environics states at p. 15 that in the survey, “respondents were asked to volunteer the kinds of issues and problems that they had experienced for which they had sought legal assistance or for which they thought legal assistance might have been helpful even though they did not avail themselves of such assistance”.

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Fear of Walmart

Professionalism and the “Fear of Walmart”: Would You Like Some Bananas With That Tort?

In 1983, the American Bar Association adopted the ABA Model Rules that are the basis for most of the current codes of conduct in the United States. The drafting body was known as the Kutak Commission. The Kutak Commission proposed a rule permitting, but regulating, non-lawyer ownership of law practice entities. Proposed Model Rule 5.4 would have permitted a lawyer to be “employed by an organization in which a financial interest is held or managerial authority is exercised by a non-lawyer . . . but only if the terms of the relationship provide in writing that”:
  • There is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship;
  • Information relating to representation of a client is protected as required by Rule 1.6;
  • The arrangement does not involve advertising or personal contact with prospective clients prohibited by Rule 7.2 or 7.3; and
  • The arrangement does not result in charging a fee that violates Rule 1.5.

The Kutak Commission said over thirty years ago that “[t]he assumed equivalence between [nonlawyer ownership] and interference with the lawyer’s professional judgment is at best tenuous” and “[a]dherence to the traditional prohibitions has impeded development of new methods of providing legal services”[1]. The response to the Kutak Commission’s proposal generated a new phrase, “Fear of Sears”[2]:

One question and its answer derailed any possibility of the MDP and corporate investment proposal during the House of Delegates debate on the package of Kutak Commission proposals; “Does this mean Sears can open a law firm?’” Geoffrey Hazard, Reporter for the Commission said “Yes,” and the debate ended with a resounding defeat of the proposal. The “fear of Sears,” as it has come to be called, conjured images of major retailers selling not only insurance and financial advice through in-store affiliates, but legal services. The attractive possthility that ordinary Americans might he able to obtain simple legal services quickly and easily was of no matter. …

In a striking parallel, the first statement made in Convocation in February 2014 in response to the Report of the ABS Working Group was virtually identical, other than referring to Walmart rather than Sears. “Fear of Walmart” may be the new “Fear of Sears”. A respected life bencher with 50 years in practice said in Convocation[3]:

And then, by the same token, I could put a sign out to say today we’ll do two wills for the price of one. Come to us because we’re selling bananas.

… My view is the moment we permit our profession to go into the Walmarts or the Best Buy stores or any of the big box places, somehow it loses some of our professionalism.

This contrast between “professionalism” and the provision of legal services in a Sears or a Walmart is obviously emotionally evocative. Many lawyers clearly are offended by the very idea. But what exactly is in issue when professionalism is said to be put at risk is not so clear. One academic has said[4]:

… “professionalism” is a feel-good term, but a term without content. We may think we can recognize good professional behavior when we see it, but the terms “professional” and “professionalism” tend to mean what a given speaker wants them to mean. Too often, people who invoke professionalism use it to stop analysis rather than further it. In short, professionalism tends to be a rallying cry, not a concept.

The claim that professionalism would be put at risk were Sears or Walmart to offer legal services could mean a number of different things. The underlying concern could be that:

  • client interests such as protection of “professional values” confidentiality, avoidance of conflicts, independence of legal advice, competent provision of services and zealous representation could be compromised by business interests and culture;
  • properly serving clients requires a “professional environment” on the theory that the trappings of professionalism support client confidence in the services provided;
  • existing legal practices might not effectively compete with a Sears or a Walmart and so allowing such competition threatens “professional self-interest”;
  • allowing a Sears or a Walmart to provide legal services devalues the status and self-worth of lawyers as professionals by not maintaining “professional dignity”; and
  • allowing any legal services to be provided other than by fully independent lawyers will lead to the “collapse of the profession”.

The issue of non-lawyer ownership interests in legal practices is not the only context in which the “idiom of professionalism”[5] has been used in debate about legal ethics over the years. While it would seem strange to us now in Canada, it was once argued that in-house lawyers should not be allowed to give legal advice to their employers because their independence of judgment would be comprised by their employment[6].

When automobile clubs and trade unions offered group legal service plans in order to take advantage of group purchasing power, lawyers attacked those plans as compromising professional independence[7].

For many years, lawyers provided legal services priced on the basis of fee tariffs which were sought to be justified on the basis that price competition would compromise professionalism[8].

Advertising by lawyers was similarly long prohibited[9]. The following passage from a U.S. judgment striking down a categorical ban on advertising by lawyers is instructive. The Court observed that the state bar placed:

particular emphasis on the adverse effects that it feels price advertising will have on the legal profession. The key to professionalism, it is argued, is the sense of pride that involvement in the discipline generates. It is claimed that price advertising will bring about commercialization, which will undermine the attorney’s sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession’s service orientation, and irreparably damage the delicate balance between the lawyer’s need to earn and his obligation selflessly to serve. Advertising is also said to erode the client’s trust in his attorney: Once the client perceives that the lawyer is motivated by profit, his confidence that the lawyer is acting out of a commitment to the client’s welfare is jeopardized. And advertising is said to tarnish the dignified public image of the profession.

The common thread of these historical examples is that lawyers have sought to avoid bing subject to various market forces on the basis that market exposure compromises “professionalism”. Lawyers have opposed the employment of in-house lawyers, the provision of group and union legal plans, advertising and price-competition all on the basis that professionalism/professional independence would be compromised.

But as can easily be seen, each of these positions is consistent with self-interest disguised as altruism. And in retrospect, the apocalyptic claims made to avoid or reduce market competition have not proven to be correct. The sky has not fallen. Nor has the sky-fallen in other jurisdictions where non-lawyer investment in legal practices has been permitted.

How then to think about the claim that “Walmart law” threatens professionalism? The balance of this column sketches out responses that question[10].

It is important to carefully examine whether “Walmart legal clients” would be at risk of compromised legal services and loss of the “professional values” to which they are entitled such as protection of confidentiality, commitment, candour and competence and freedom from conflicts. I consider this the truly central question. While some simply state, as an article of faith, that the provision of legal services and professional values will inevitably be compromised, this is far from obvious to me. As discussed elsewhere, the actual evidence appears to be to the contrary. No doubt some approaches will carry undue risk. But it seems very unlikely that only the traditional lawyer-owned and controlled practices can possibly provide proper legal services. Being thoughtful about new approaches to legal regulation seems to me to likely be the way to approach the very proper issue of protection of “professional values”. If this is what professionalism is really about then I’m all in favour.

It is difficult to imagine that protecting the “professional environment” is really at issue so far as “Walmart legal clients” are concerned. The point of allowing “Walmart law” is to allow greater consumer choice. There is good evidence that many people with legal problems do not obtain legal services at all let alone in a “professional environment”. Providing new ways of accessing and delivering legal services is intended to address these unserved legal needs. It is difficult, at best, to accept that these potential clients are better off receiving no legal services at all than having to endure a retail environment. And while lawyers may lose some clients, presumably clients will choose the environment that suits them best.

Professional self-interest” of course causes lawyers to fear loss of business to new types of legal service providers. The first response to this concern is it is not a legitimate justification for law society regulation. A second response is that lawyers must not think much of their services if they think that their clients will so easily be lost. A further response is that competition from new types of legal service providers will cause lawyers to innovate in response to new competition. There is also a claim from some that these new types of legal service providers will engage in predatory pricing, drive all lawyers out of the market and then jack up prices. However, there is no evidence for this claim and no economic theory or analysis cited in support.

Fear of loss of “professional dignity” may well underlie, at least in part, the reaction of some lawyers to “Walmart law”. For lawyers who have worked hard to well and ethically serve their clients and develop their professional reputations, the title of “lawyer” is hard earned and jealously protected. But it is difficult to see any substantial basis for the fear of loss of professional status nor that protecting professional status could be a proper reason to continue to prohibit new ways of providing legal services.

As for “collapse of the profession”, there is no evidence for any such claim from the countries where non-lawyer ownership has been permitted. Nor is there any serious explanation for how this might actually occur[11]. Not being certain how things may evolve is no basis for prohibiting all change especially when problems that may arise very likely can be addressed as they arise.

The point of this column is not so much to argue each of these points but rather to highlight that claims of endangered professionalism are quite imprecise. The invocation of professionalism tends “to stop analysis rather than further it, … [it is] a rallying cry, not a concept”.

This is not to suggest that lawyers making such claims necessarily do so disingenuously or as mere advocacy. Rather care is required in discussion so that the true basis of any claim is made clear, the rationale and evidence for the claim is elaborated and as such can be fairly addressed.

Merely asserting that new ways of providing legal services are inconsistent with professionalism is to call on emotional and intuitive responses rather than to genuinely advance the discussion. A deeper discussion that genuinely considers the advantages and risks of liberalization is required.


[1] Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75

[2] James E. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change, 2013 at p. 165

[3] Law Society of Upper Canada, Transcript of Convocation, February 27, 2014, pp. 132 to 133

[4] Thomas D. Morgan, Calling Law a “Profession” Only Confuses Thinking About the Challenges Lawyers Face, 2011, 9 University of St. Thomas Law Journal 542

[5] Ted Schneyer uses this phrase in his article Professionalism as Pathology

[6] Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 94 et seq

[7] Stephen Gillers, How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession, 2013, 40 Pepperdine Law Review 365 at p. 377 et seq

Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 96 et seq

[8] Waterloo Law Association et al. v. Attorney-General of Canada, (1986) 58 OR (2d) 275

Stephen Gillers, How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession, 2013, 40 Pepperdine Law Review 365 at p. 380 et seq

Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 99 et seq

[9] Stephen Gillers, How to Make Rules for Lawyers: The Professional Responsibility of the Legal Profession, 2013, 40 Pepperdine Law Review 365 at p. 383 et seq

Ted Schneyer, Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 2013, 40 Fordham Urb. L.J. 75 at para. 101 et seq

[10] Itis not just the practice of law in a Walmart or a Best Buy that is in issue. Rather “Walmart law” is a useful label for non-traditional provision of legal services. “Walmart fear” is the fear of that change.

[11] Claims have been made that the United States provides an example of problems with non-lawyer ownership of legal practices. This is a peculiar claim as the United States does not allow non-lawyer ownership and has the harshest approach to unauthorized practice. What is true is that some states have entirely deregulated some areas of legal service such as residential real estate. That is quite different than allowing non-lawyer investment in legal practices subject to appropriate rules governing conflicts, competence, committment, candour and the like.

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Reform but not change

Being in Favour of Reform, Just Not Change

To a hammer, everything is a nail

There is an old aphorism that “To a hammer, everything is a nail”. The aphorism reflects the centrality of perspective. Where you stand very much affects what you can (or want to) see.

I think that Professor Julie Macfarlane makes this point in the context of discussions about access to justice. Professor Macfarlane has carefully researched and thoughtfully written about the reality that most family law litigants don’t use lawyers. She speaks about this issue with lawyers yet, as she seems to say, the discussions with lawyers about this topic are, at best, stilted. I suspect that this is because lawyers see the access to justice issue from their professional perspective, are rightly proud of the work that they do for clients and have difficulty processing the access to justice issue from any perspective other than their own.

So the main point of this column is to try to address the A2J question from a different perspective and to use that perspective to look at the solutions offered.

Middle Income Access to Justice

In 2012, Professors Trebilcock, Duggan and Sossin published Middle Income Access to Justice. The book drew on 23 surveys of the public’s experience with justiciable problems undertaken across 13 countries.

The importance of this approach is that it looks at justiciable problems experienced by the public rather than looking at what lawyers do. The punch line is that there is a difference. Lawyers know what lawyers do. Lawyers fairly believe that lawyers do good things. So lawyers don’t see problems. To a hammer, everything is a nail.

The 2009 Ontario Civil Legal Needs Project is examined in the book by Professors Baxter, Trebilcock and Yoon. They examine the data seeking to determine what predicts the decision to seek legal advice. In other words, when do the members of the public go to lawyers for help? The answer is that it is the problem type significantly predicts whether a lawyer is consulted. And there are four problem types that predict the involvement of lawyers namely criminal, family, wills and powers of attorney and real estate. While not significant in a statistical sense, personal injury comes a close fifth on the numbers.

That the public goes to lawyers for criminal, family, wills and powers of attorney, real estate problems and personal injury problems should come as no surprise to lawyers. This is pretty much exactly what lawyers say that they do for individuals. In 2005, the Law Society of Upper Canada Sole Practitioner and Small Firm Task Force reported that lawyers in sole practice and in small firms generally represent individuals (77%) and that these lawyers practice real estate (46%), civil litigation (39%), wills, estates, trusts (35%), corporate and commercial (33%) and family (26%).

What do lawyers do? What legal needs exist?

Given that the public says that it uses lawyers for criminal, family, wills and powers of attorney, real estate problems and personal injury problems and that this is what lawyers say they do, we can have a strong degree of confidence about the nature of the practice of law for individuals.

Solicitors do real estate work, assist with wills, estates and trusts and also do some corporate and commercial work (presumably for small businesses). Litigators do criminal, family and personal injury litigation. Some lawyers of course do solicitors work as well as litigation.

That these are the categories of work done by lawyers makes obvious sense. Members of the public with significant assets use solicitors to help them with real estate transactions and in dealing with inheritances made or received. Members of the public who have trouble with the criminal law, who are in failed family relationships or who seek compensation for significant personal injury use litigators.

But what lawyers don’t see and cannot appreciate is that this amounts to a relatively small portion of the justiciable problems experienced by members of the public. According to the 2009 Ontario Civil Legal Needs Project, the public only seek legal assistance in respect of 11.7% of justiciable events.

Said simply, the public use lawyers for less than 15% of the justiciable events experienced by them. Said another way, what is 100% of lawyers’ practices is less than 15% of the public’s legal needs.

What about the other 85%?

Of the over 85% of justiciable problems that don’t attract legal attention, approximately 60% are consumer problems, money/debt and employment problems. A smallish proportion is in respect of discrimination, housing, hospital treatment/release, welfare benefits, disability benefits, immigration and other matters.

Should we care about the 85% of legal needs that are not addressed by lawyers? For the legal philosopher, the answer must be yes. As Professors Trebilcock, Duggan and Sossin put it “Most conceptions of the rule of law assume equality before the law and hence access to law or the justice system as one of its fundamental predicates”. And as Professor Gillian Hadfield argues, it seems quite wrong that the businesses on the other side of these justiciable events have expert legal assistance while the public does not. For the Law Society, the answer must also be yes given its public interest mandate. For individual solicitors and litigators who are struggling to do a good job and make a decent living, it is not surprising that this 85% is not on their radar.

The next question is why are lawyers used for less than 15% of legal needs? This is not well examined but I think the reason is clear. Lawyers are small business people who sell their time and expertise to help members of the public solve their problems. Taking into account the incomes reasonably required by university-trained highly intelligent professionals and their overheads, the fees for lawyers solving problems are measured in the hundreds of dollars per hour of time spent.

Real estate transactions and issues with inheritances are economically significant enough that the cost of a lawyer is justified. Personal injury claims work economically where the compensation likely attainable is large enough to justify legal fees.

Criminal law and family law are more problematic. Criminal law problems undoubtedly require legal assistance but accused persons often cannot afford the fees. As a society, we (mostly) address the importance of criminal law problems and the inability of those with criminal law problems to pay for legal assistance through legal aid.

Family law is the problem child from the lawyers perspective. The issues are difficult enough to justify legal assistance. People often cannot simply choose to ignore the family law issues whether because custody of children is at issue, support is needed or assets are being divided. Most people don’t use lawyers for family law problems. Not because they don’t want to but rather because they can’t afford to pay what turns out to be a large and unpredictable cost.

As for the remaining 85%, the fees of the legal expert are out of proportion with the size of the problem to be solved and, unlike criminal or family law, the public isn’t forced into the legal system.

What to do about the 85%?

So what to do? We could ignore the 85% and hope that no one notices. This seems to be the current approach.

We could hope that society comes to see these legal needs as being as compelling as health or education and provide legal aid funding. There are two problems with this approach. First, it won’t happen. Second and more important is that it is wrong to require society to pay for solutions the cost of which is disproportionate to the problem addressed. Even people with sufficient resources generally do not use lawyers for these problems because of the cost benefit equation. The business model of the small business lawyer does not provide an efficient way to address the 85% whether privately funded or funded by legal aid.

We could (and in Ontario have) allow regulated paralegals to address a portion of the 85%. While the business model is essentially the same, paralegals charge less and so can efficiently address some of the 85%. Small claims court work is a good example. But the advocacy provided by regulated paralegals solves at best a small part of the 85% puzzle.

There are two remaining choices. Neither will be attractive to practising lawyers. The first is to end the monopoly. If lawyers and regulated paralegals can’t efficiently address over 85% of legal problems then it makes sense simply to get out of the way. It makes no sense to prohibit anyone but a member of the Law Society from doing work that members of the Law Society don’t do.

The alternative choice is to encourage innovation by regulatory liberalization permitting other ways of delivering legal services. Having small businesses spend expert professional time on problems is not the only way to address problems. Technology and business processes can provide lower cost solutions. Larger businesses with scope and scale can deliver services in a way that the small business professional cannot.

My preference is to allow new ways of providing legal services under regulatory supervision. I am uncomfortable with the deregulation alternative. But I don’t see how doing nothing is acceptable.

Returning to the 15% (actually the 11.7%)

Criminal, family, wills and powers of attorney, real estate and personal injury problems make up the 11.7% of justiciable problems for which the public turn to lawyers for assistance. These are problems that lawyers see and seek to solve for their clients.

For criminal law, there is a clear issue of access to justice. But the answer is mostly, if not entirely, proper legal aid to ensure that competent criminal lawyers are engaged to protect fundamental constitution rights.

For real estate transactions, there is no reason to think that access to legal services is an issue. While there are likely efficiencies available through new ways of providing legal services, the issues in real estate law aren’t really about access.

For wills and powers of attorney, the issue is a bit more complicated. For those with property of sufficient value, the current system no doubt works reasonably well in terms of access. As in real estate, services could likely be more efficiently. But, it is also clear that the majority of Canadians do not have a will nor a power of attorney. For the majority of Canadians, wills and powers of attorney are in the 85% not the 15%. But lawyers do not see this as an issue because lawyers ably serve the minority of the public who have sufficient assets in their estate or a sufficient inheritance to justify paying lawyers’ fees.

For personal injury law, the contingent fee substantially addresses the access issue. However, the small business professional model limits the risk that can be taken by personal injury lawyers. With limited capital and limited volume, personal injury lawyers inevitably will tend to take on claims that are most certain to pay off. And it is common that clients are required to fund disbursements which may or may not be affordable.

The greatest access problem in the 15% is in family law. Family law litigants often start off with a lawyer but then try to represent themselves because legal fees are large and unpredictable and the amount of the family assets do not justify the legal fees. Professor Macfarlane’s research indicates that 70% of family law litigants are unrepresented. It seems that many start in the 15% but most end up in the 85%. Family law lawyers do not have the volume of business or the working capital to work on a fixed or predictable fee basis. The hourly rate legal model is unable to reduce price without reducing lawyers incomes. Technology and process innovation are not brought to bear because of lack of investment capital and expertise.

Improving access to justice in family law is complicated. Part of the answer may be allowing paralegals to do some of the advocacy work that is no longer being done by lawyers. Part of the answer may be in reducing the complexity of the process by which family law disputes are resolved. But there is reason to think that allowing evolution of business structures can be part of the solution as well. In Australia, firms which have taken advantage of access to external capital are now providing fixed fee family law services. As well, the well-capitalized Australian firms (e.g. Shine Lawyers, Slater & Gordon) fund disbursements in personal injury matters as well as fees.

To return to the beginning, it seems that it can be difficult for lawyers to appreciate the access issues that exist in our legal system. This may be because our perspective is inherently limited and we are rightly proud of that which we do. There is also a natural fear of change and, for some, a tendency to exaggerate how well things are going and how badly things could be if the status quo is not maintained. In my view, there is a compelling need for reform to advance access to justice. The scholarly thinking (e.g. Hadfield, Semple) and the actual evidence shows benefit, not harm, from allowing new ways of providing legal services. We actually need to change.

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Utopia, Dystopia and ABS

Utopia, Dystopia and Alternative Business Structures

I’ve spent a lot of time over recent months thinking about alternative business structures and how to think about regulatory liberalization.

Except in very limited circumstances[1], only lawyers[2] can have an ownership interest in a legal practice whether organized as a partnership, a limited partnership or a professional corporation. As a practical matter, only legal and strictly ancillary services can be offered to clients by a legal practice.

Individuals and small businesses are overwhelmingly served by lawyers in sole practice or in small firms. Lawyers sell their time to clients. Time is measured in billable hours. The inexorable arithmetic of the number of hours in the year and the cost of overhead together with the market alternatives of most people who have the capacity to become lawyers results in hourly rates of $150/hour and up.

The current business structure is selling time by the hour in sole and small practice with the financing of the practice by the lawyer out of his or her own resources (or by personal bank borrowings). I think of this as the small professional consultancy structure.

In a recent paper[3], Professors Iacobucci and Trebilcock discussed constraint of law firm business structures using two separate economic concepts. Under the “theory of the firm”, there can be economic advantages for owners (and customers) not to have to go out into the market but instead to obtain related services within the firm. Under the heading “capital structure”, constraining access to capital limits what a business can do because capital is required for business and technological innovation and because owners who can only invest their personal resources are naturally conservative. Few individuals are willing to risk everything on a risky innovative venture.

In another recent paper[4], Professor Ray Worthy Campbell looked at the topic of innovation and scholarly thinking about Disruptive Innovation. The point made is that some innovations are disruptive and that some are sustaining. It is difficult for a successful business to adopt a disruptive innovation. In the 1970s, IBM was Big Blue – the manufacturer of 360 and 370 main frame computers. IBM didn’t and couldn’t bring the personal computer to market. Young entrepreneurs like Bill Gates and Steve Jobs came from their garages not from IBM.

For a lawyer, there are sustaining innovations that are easily adopted; like memory typewriters, word processors, fax machines, desktop/laptop computers, smart phones and the like. These innovations sustain the consultancy and are affordable by small consultants. But other innovations are disruptive of the consultancy and require resources and expertise out of the reach of the small consultant.

Professor Campbell discusses three business paradigms; “solution shops”, “value chains” and “value networks”. He says that lawyers, doctors, detectives, engineers operate “solution shop” businesses. To my way of thinking, there are all consultancies with the size of the consultancy being tied to the economic size of the problem seeking a solution.

A “value chain” transforms inputs into products by a process. Think Ford, GM, Chrysler or Google Translate. A “value network” links customers for collective advantage. Think Ebay, an insurance company or Home Hardware. The point is that the competencies required for these different business types are very different. A professional consultancy is very unlikely to evolve into an essentially different type of business.

So why is any of this interesting or possibly useful? One answer is that there are substantial areas in which legal needs are going unfilled because the legal services are simply too expensive according to the potential client. But the only way to reduce price under the small consultancy model is for lawyers to reduce their incomes. In contrast, value chain businesses can develop business and technological processes to deliver services differently. In the 1970s, I worked part time while a student for H&R Block doing tax returns using pen, paper and a calculator[5]. Now I use Quicken downloaded from the internet. Quicken now is cheaper than I was then – and more competent too! While law is more complicated than tax return preparation, technology already exists to address legal problems and the pace of development is only accelerating.

Another answer is that lawyers practicing alone in small consultancies don’t have access to business and legal infrastructures that would make practice better both for the lawyer and for the client. Many lawyers would rather practice law and not have to run a small business as well. Lawyers operating as smalls and soles tend to reinvent the wheel rather than draw on existing knowledge or on the expertise of others.

A third answer is that legal service innovations are occurring but not involving lawyers because lawyers aren’t allowed to combine their legal practices with the innovators[6]. Regulation of lawyers doesn’t stop innovation. It just dictates where innovation won’t happen.

The reformer sees the possibility for clients to be served who are not now being served at all, for current clients to be served better and for lawyers to be innovators rather than to have innovation done to them.

The risk for the optimistic reformer is utopian thinking. It is unlikely that legal practice will be transformed. There is no doubt real value in small consultancies. Lawyers are, by nature, independent and sceptical. Many are probably well suited to practising on their own. And being an employee in a large enterprise isn’t always great. Some employers are better than others. There are advantages and disadvantages. And disruption means that some firms will be winners and some will be losers.[7]

So what is the issue on the other side. There are essentially two issues. The first is protectionism which is rarely, if ever, expressly stated. Lawyers, like everyone else, fear change that could adversely affect them. This fear of adverse consequences of course gets dressed up as something else; sometimes consciously and sometimes not. The deeper and more important issue is independence, both of the profession and of the individual lawyer as professional advisor/advocate.

The pessimistic conservative fears a dystopia; that allowing any alternative business structures will transform the practice of law. Lawyers will no longer be in charge of their practices or of their profession. The rule of law and our free society will be imperilled. Any change could mean total change.

The dystopian naturally does not see sufficient advantage in reform to justify perceived real risk of devastating change. Any change may lead to this dystopia. The dystopian looks in vain for promises of transformation of access to justice and legal services that could justify such a risk but there can be no such promise.

The truth of the matter is that the advantages of ABS liberalization are probably limited and that the risk of significant harm from ABS liberalization is probably remote and capable of mitigation.

Where I end up is that we should try to be more sensible and less visionary in our approaches and in our justifications. It is not necessary to throw caution to the winds in order to permit greater innovation. We should look hard at specific rules and think clearly about whether there are sensible less restrictive alternatives.

In Ontario, the Law Society Act instructs that the Law Society has duties to (i) maintain and advance the cause of justice and the rule of law, (ii) facilitate access to justice for the people of Ontario and (iii) to protect the public interest. All of these duties are in play in the alternative business structure discussion. The reformers see the prospect for greater access to justice (and legal services). The conservatives fear impairment of the cause of justice and the rule of law. Both seek to advance the public interest. Neither is wrongly motivated.

But there is another relevant instruction in the Law Society Act which states as a principle that:

“Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.”

I think that there is much wisdom in this pragmatic non-utopian non-dystopian principle. The issue of ABS regulatory liberalization is best addressed pragmatically and incrementally.

In sensible Canadian fashion, we should be able to renovate the kitchen without destroying the house. Throwing all caution to the wind risks real harm. Being unwilling to reform for fear of revolution fails to achieve attainable advantages but also ultimately risks radical change imposed by others.

 


[1] In BC, family members can own shares in a professional corporation. In Québec, regulated professionals can be partners and shareholders in multi-disciplinary corporation. There are a few, very few, Multi-Disciplinary Practices (MDPs).

[2] and regulated paralegals in Ontario

[3] Edward Iacobucci and Michael Trebilcock, An Economic analysis of Alternative Business Structures for the practice of law, Commissioned by the Law Society of Upper Canada for its ABS Symposium held October 4, 2013

[4] Ray Worthy Campbell, Rethinking regulation and innovation in the U.S. legal services market, 9 NYU Journal of Law & Business 1 (2012)

[5] In 1973, the HP Calculator was a new technological innovation. It was a sustaining innovation for consultancies including tax preparation.

[7] Which doesn’t necessarily mean that the people in the disrupted practices won’t find new and perhaps better opportunities.

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Bright Line Rule

A Bright Line Rule of Limited Scope

A decade ago, the Supreme Court of Canada introduced a new conflicts rule into Canadian law. The rule was fashioned from the ABA Model Rules of Professional Conduct. This new “bright-line rule” generated substantial controversy within the profession. In July, the Supreme Court released its decision in McKercher which both restated and reformulated the “bright line” rule[i].

The “bright-line rule” as first articulated in Neil provided that a lawyer could not act in a matter directly adverse to the immediate interests of a current client without proper consent. The impact of this rule was said to be somewhat limited by the proposition that professional litigants, such as governments and chartered banks, could be taken as “broad-minded” such that their informed consent could be implied. Also, the Court emphasized judicial discretion as to remedy. Not all “bright-line” crossings would have consequences. For example, where a complaint was viewed by the court as tactical, a remedy could be denied.

The policy basis for the “bright-line rule” was reasonably clear. The rule guarded against impairment of client representation. The lawyer-client relationship might be compromised where a lawyer acted in a matter directly adverse to the immediate interests of his or her client. On the other hand, the lawyer might be tempted to “pull punches” so as not to offend the adverse client. The existing “substantial risk” principle might not fully protect against these risks.

However, there were real problems with this rule as formulated. The rule applied in situations where there was no real risk of mischief. Naturally, clients preferred to keep control by making clear that express consent was always required thereby defeating the ability to imply consent. While flexibility in remedy could be helpful where a remedy was sought, remedial flexibility was limited if any assistance in day-to-day conflicts clearance. And some law societies adopted the “bright line” as a conduct rule without any of the remedial flexibility largely on the theory that the law societies must adopt rules set by the court.

In McKercher, CNR submitted that the “bright-line” rule was bright and plain. Disqualification should follow where a lawyer acted in a matter directly adverse to the immediate interests of a current client. The Federation of Law Societies essentially supported CNR’s position saying that this was the intent of the Federation’s Model Rule. McKercher submitted that informed consent should be implied because CNR was the archetypal sophisticated client and that implied consent should not trumped by ex post facto refusal. The Canadian Bar Association submitted that the “bright-line” rule should be seen as presumptive so as not to apply where it could be shown that there was no real risk of mischief.

The Court accepted none of these approaches and instead clarified and materially modified the “bright line” rule. First, the Court made clear that “the bright line rule applies only where the immediate interests of clients are directly adverse in the matters on which the lawyer is acting” and then only where the clients are adverse in legal interest. Mere adversity is not sufficient to engage the rule. Direct adversity to immediate legal interests in the matter is required. The Court observed, “The main area of application of the bright line rule is in civil and criminal proceedings”.

Second, the Court effectively replaced the unworkable concept of implied consent with a limitation to the scope of the rule. The “bright line” rule does not apply in unrelated matters where “it is unreasonable for a client to expect that its law firm will not act against it”. Recognizing that cases where this scope limitation applies will be exceptional, this is a fundamentally important change. The fiction of implied consent is replaced with objective examination of what a reasonable client would expect. The nature of the client is no longer the only issue. For example, the nature of the relationship between the law firm and the client, the terms of the retainer, as well as the types of matters involved, are properly considered.

Third, the Court moved the issue of tactical objections from a factor to be considered as to remedy to a limitation of the scope of the rule. The Court particularly noted that “The possibility of tactical abuse is especially high in the case of institutional clients dealing with large national law firms”.

While the Court clearly rejected the proposition that the “bright line” rule is presumptive, the changes made by the Court to the scope of the rule clearly reduce apparent over-breadth by permitting consideration of essentially the same factors that would be considered if the rule were presumptive. Assessing reasonable expectations permits examination of the nature of the lawyer-client relationship and whether the nature of adverse retainer is such that the existing representation might be compromised. Where there is no real risk of mischief, an objection will presumably be considered to be tactical. In saying that the rule mainly applies in litigation and that the possibility of tactical abuses is especially high where large clients deal with large law firms, the Court appears to be sending clear signals about the intended application of the rule.

I think that what the Court has done is both subtle and significant. Previously, over-breadth in the “bright line” rule was thought tempered by the belief that large clients would be reasonable and that courts could address remaining over-breadth in exercising discretion as to remedy. But conflicts must be cleared day-to-day and overwhelmingly practicing lawyers, not judges, have to decide conflicts. The assumption of broadmindedness on the part of large clients turned out to be wrong. Understandably, no client gives up control that might be used to advantage. As well, large clients faced the invidious proposition that consent might be implied irrespective of the nature of their relationship with the lawyer and the nature and effect of the adverse claim.

The Court in McKercher also addressed the disqualification remedy. The Court reaffirmed that crossing the “bright line” does not automatically mean disqualification. As the Court said at para. 61:

… the courts in the exercise of their supervisory jurisdiction over the administration of justice in the courts have inherent jurisdiction to remove law firms from pending litigation. Disqualification may be required: (1) to avoid the risk of improper use of confidential information; (2) to avoid the risk of impaired representation; and/or (3) to maintain the repute of the administration of justice.

According to the Court, disqualification requires consideration of potential mischief (using the language from MacDonald Estate) whether misuse of confidential information, impairment of representation or harm to the administration of justice. Even if the “bright line” rule applies where there is no risk of mischief despite its newly limited scope, it appears clear that disqualification will not be available absent risk of mischief.

While emphasis was not given to the point, the Court elected to consider disqualification as a matter of its supervisory jurisdiction over the administration of justice rather than as a matter of fiduciary law. I think this important because it is a further indication that the “bright line” rule mainly applies to litigation. While fiduciary remedies such as equitable compensation and disgorgement may ultimately be available, it will be an exceedingly rare case where these remedies could be practically available where disqualification was not. Fiduciary remedies will not likely be available absent some real risk of harm.

The Court in McKercher made clear that lawyers had to apply both the “bright line” rule and the “substantial risk”[ii] principle in clearing conflicts involving current clients. But as a practical matter given the reduced scope of the “bright line” rule, it is difficult to see circumstances where the “bright line” would be crossed without the substantial risk principle not also being engaged. It is even more difficult to contemplate disqualification absent substantial risk of mischief.

Neither conception of the “bright line” rule urged on the Court “won” or “lost” in McKercher. Indeed, winning and losing shouldn’t matter on policy issues. But the result is a workable rule that requires lawyers to carefully assess retainers adverse to current clients. The McKercher analysis allows thoughtful assessment of conflicts. But this is no invitation to lawyers to act in litigation against their current clients. To the contrary. And careful thought will continue to be required in transactional and advisory matters as well.

The bottom line for me is that an overbroad rule appears to have been transformed into a workable rule pursuant to which lawyers won’t be disqualified without good reason. I think that this is a good thing for both clients and lawyers.

What remains to be seen is the regulatory response to McKercher. The Federation of Law Societies immediately announced that the Model Code was consistent with McKercher. But the Federation argued in McKercher that the intent of the Model Code was to specifically prohibit retainers directly adverse to the immediate legal interests of current clients. While that proposition is controversial, it is not consistent with the narrowed scope of the rule established in McKercher nor with the judicial approach to disqualification. Perhaps the point is that the Model Code, in its commentary, attempts to describe the law and therefore evolves with the law. I think that is a fair read of the commentary but that remains to be seen.


[i] As noted in a previous column and for transparency, I acted for the Canadian Bar Association as intervener in McKercher. For better or worse, I have a view on all of this!

[ii] The “substantial risk” principle is the traditional fiduciary law sometimes called “ conflict of duty with duty” and “conflict of interest with duty”. The principle is that proper consent is required where a “conflict of interest” exists. A conflict of interest exists where there is “a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.”

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