Slaw.ca Legal Ethics Column, April 10, 2020.
Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.
While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access to justice, without any apparent diminution in quality or ethics.
1. Licensure In its Place
Throughout Canada, it is generally illegal for anyone not licensed by a law society to provide legal services of any kind. (The very narrow exceptions almost all pertain to circumstances in which fees are not being charged). If you lack a license, even offering the simplest legal advice in exchange for a fee can earn you a prosecution for the “unauthorized practice of law.” Whether there was any deficiency whatsoever in the advice you gave is legally irrelevant.
In England & Wales, only services specifically enumerated by the Legal Services Act are reserved to licensees. Reserved activities include appearing in court, issuing legal proceedings, and the administration of oaths. However everything else – including giving legal advice and representing people in negotiations and mediations – is not subject to licensure. That does not mean that these activities are unregulated: clients are protected by various consumer protection statutes, as well as common law remedies in negligence and contract.
Of all the different ways to regulate services, licensure is the most restrictive. It requires people to surmount a lengthy and expensive series of hurdles before they can help others. Licensure guarantees quality, but at a very high cost: it restricts competition, drives up prices, and suppresses innovation in the market. The English approach represents a more rational balancing of licensure’s costs and benefits.
2. Lowering the Hurdles
It remains true that the large majority of legal services in England & Wales are provided by licensed lawyers. However the path to licensure is significantly less onerous than it is in Canada. On this side of the Atlantic, becoming a lawyer usually requires 7 years of post-secondary education, and $100,000 or more in tuition. We have very few law school spots per capita, so it’s also very difficult to get into law school. (It’s an even harder road for those who study abroad, and must spend many years taking NCA exams in order to be qualified here).
In England & Wales, qualifying as a solicitor requires only one three or four year undergraduate degree, within which two years must be dedicated to legal studies. Law programs are generally no more difficult to get into than other undergraduate programs.
Fewer mandatory years of education means that people with lower family incomes can become lawyers. It also means that those who do qualify carry less debt – because they have paid less tuition and foregone fewer years of income. They are therefore able to charge lower fees.
In theory, the advantage of our system is that, because our new lawyers have spent longer in university — even studying topics that have little or nothing to do with law — they are somehow better lawyers. The problem with this theory is that there is no evidence whatsoever supporting it. It is time to undertake a thorough, empirical scrutiny of all of the barriers to entry that stand between (i) the numerous Canadians with unmet legal needs, and (ii) the numerous people who would like to help them, but cannot make it through what is among the world’s most difficult set of hurdles to entry to the legal profession.
3. Freedom to Collaborate
Throughout Canada, firms offering legal services must be completely owned by and controlled by lawyers. You can offer legal services to the public through a corporation, but lawyers must own all of the shares. In some parts of the country you can technically form a “multi-disciplinary partnership” (MDP) with non-lawyers. However the rules governing these ventures are so restrictive that MDPs are very rare in the wild.
In England & Wales, lawyers are allowed to practice in a wide variety of business forms, including closely-held corporations with non-lawyer ownership, publicly-traded corporations, and true multi-disciplinary partnerships. Our intolerance of these alternative business structure (ABS) firms is based on the idea that lawyers’ pristine and altruistic ethics will be corrupted if they are exposed to rapacious businesspeople from lesser callings. This might have been remotely plausible before 15 years of experience in UK and Australia has shown that properly regulated ABS firms pose no greater risk to the public than normal firms do. This experience has also shown that many accessible, innovative ways of practicing law are unlocked if lawyers are allowed to collaborate outside the guild.
Regulation can be very difficult, when new issues arise and decisions must be made quickly without much guidance. However in other cases, other countries very similar to our own have blazed a clear path forward. We don’t need to speculate about the consequences of liberalizing legal services regulation; we need only glance back across the pond to see a better future.