Category: Academic Publications

Regulating Contingency Fees: A Consumer Welfare Perspective

Noel Semple

Invited contribution to Trevor Farrow & Les Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, forthcoming 2020).

How can we preserve and extend what’s good about contingency fees, while minimizing the bad and the ugly? In order to identify the regulatory tools best suited to this challenging task, this Chapter proposes a consumer welfare analysis.

The consumers of contingency fee legal services are the individual clients, and the members of classes, represented by law firms working on this basis. These consumers, like other consumers, have interests in:

(i) quality,

(ii) price,

(iii) fairness, and

(iv) choice.

Part 2 of this Chapter will analyze these four sets of consumer interests, all of which are affected by the regulation of contingent fees. Part 3 scrutinizes various regulatory approaches to contingency fees against the consumer welfare criterion. I argue that heavy-handed interventions, such as fee caps and retrospective price review, can do as much harm as good for consumers. “Light touch” alternatives such as disclosure and standardized contracts, and fostering the “invisible hand” of the market, are preferable approaches for a regulators interested in maximizing consumer welfare.

Early draft online: https://ssrn.com/abstract=2959477.

Male, Pale, and Stale? Diversity in Lawyers’ Regulatory Leadership

Noel Semple

(2016) Canadian Journal of Law and Society, Vol. 31, Issue 3, p. 405.  (Peer-reviewed). Online: Cambridge University Press.

When lawyers elect the leaders of their self-regulatory organizations, what sort of people do they vote for?  How does electoral system design affect the ability of law societies and bar associations to understand and regulate a diverse legal profession? This article quantitatively assesses the demographic and professional diversity of leadership in the Law Society of Upper Canada.  After many years of underrepresentation, in 2015 non-white members and women were elected in numbers proportionate to their shares of Ontario lawyers. Regression analysis suggests that being non-white was not a disadvantage in the 2015 election, and being female actually conferred an advantage in attracting lawyers’ votes. The diverse employment contexts of the province’s lawyers were also represented in the elected group.  However early career lawyers were completely unrepresented.  This is largely a consequence of electoral system design choices, and can be remedied through the implementation of career stage constituencies.

Can be found online at: https://doi.org/10.1017/cls.2016.33

This research was also the subject of an article in the Law Times newspaper: https://www.lawtimesnews.com/news/general/prof-calls-for-reforms-to-boost-youth-presence-at-convocation/261812

The Cost of Seeking Civil Justice in Canada

Noel Semple

(2016) Canadian Bar Review, Vol. 93.3, pp. 639-673.

How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article then suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.

Online: https://cbr.cba.org/index.php/cbr/article/view/4358

This research was the subject of an article in the Canadian Bar Association National Magazine. Online: CBA National Magazine. Link here.

Legal Services Regulation At The Crossroads: Justitia’s Legions

Noel Semple

(2015) Edward Elgar Press, 308 pages.

Available now Edward Elgar Press in hardcover and as an affordable e-book .

“A must read for everyone in North America who is making decisions on regulatory change to the legal services industry.” (Mitch Kowalski’s review in the Financial Post)

Through a comparative study of English-speaking jurisdictions, this book seeks to illuminate the policy choices involved in legal services regulation as well as the important consequences of those choices. Regulation can protect the interests of clients and the public, and reinforce the rule of law. On the other hand, legal services regulation can also undermine access to justice and suppress innovation, while failing to accomplish any of its lofty ambitions. The book seeks a path forward to increasing regulation’s benefits and reducing its burdens for clients and for the public. It proposes a client-centric approach to enhance access to justice and service quality, while revitalizing legal professionalism, self-regulation, and independence.

Personal Plight Legal Practice and Tomorrow’s Lawyers

Noel Semple

(2014) Journal of the Legal Profession, Vol. 39, pp. 25-47.

Commentators have predicted that computerization and off-shoring will steadily undermine demand for lawyers in North America and Europe. This essay argues that this prediction is not equally valid for all types of legal practice. Personal plight practice — in which lawyers help individuals and small businesses involved in legal disputes — is largely sheltered from both computerization and off-shoring. The article calls for the profession and legal educators to open doors between tomorrow’s lawyers and personal plight legal practice. Doing so will not only address the economic insecurity confronting tomorrow’s lawyers, but also enhance access to justice.

This article was the basis of a December 12, 2014 post at the Canadian Association of Law Teachers blog.

Full article found online here.

A Taxonomy of Lawyer Regulation

Noel Semple

by Noel Semple, Russell Pearce, and Renee Knake

Legal Ethics, Vol. 16, No. 2, pp. 258-283(2013) (published 2014).

Full text: http://ssrn.com/abstract=2396041

What explains the dramatic contrast between legal services regulation in the United States and anglophone Canada, on one hand, and England/Wales and Australia, on the other? In order to help explain these divergent regulatory choices, and to further comparative analysis, this Essay proposes a taxonomy of theories of legal services regulation drawn from these common-law jurisdictions.

Continue reading “A Taxonomy of Lawyer Regulation” →

Depending on the Kindness of Strangers: Access to Civil Justice in Canada

Noel Semple

(2013) Legal Ethics, Vol. 16, No. 2, pp. 373-376.

‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent’s report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

Full text: http://ssrn.com/abstract=2385989

Reforming Ontario’s Family Justice System: An Evidence-Based Approach

Noel Semple

by Noel Semple and Nicholas Bala

(2013) Report commissioned by the Association of Family and Conciliation Courts, Ontario Chapter. 20,000 words.

Full text: http://afccontario.ca/wp-content/uploads/2015/11/Semple-Bala-Family-Justice-Reform.pdf

Also available at: http://ssrn.com/abstract=2366934

 

This Report summarizes research about justice system responses to family disputes, makes recommendations for government action based on that empirical evidence, and identifies some as yet unanswered system design questions requiring further study. This document is provocative as it is premised on a realistic appreciation of the nature of family disputes and the limits of government action, especially in the present fiscal environment, and the fact that there are issues related to family justice that research has not adequately addressed and hence development of public policy must be undertaken in the face of uncertainty. Continue reading “Reforming Ontario’s Family Justice System: An Evidence-Based Approach” →

Access to Justice: Is Legal Services Regulation Blocking the Path?

Noel Semple

(2013) International Journal of the Legal Profession, Vol. 21, No. 2, pp. 267-283 (Peer-reviewed).

Is legal services regulation exacerbating North America’s access to justice crisis? Does regulatory preservation of a unified legal profession, and insulation of that profession from non-lawyer influence, make it more difficult for Americans and Canadians to meet their legal needs? This article begins by showing that high prices and lack of innovation have placed expert legal services beyond the reach of many people in English-speaking North America. It then develops a theory of how these problems might be compounded by two distinctive features of legal services regulation in this region: unification of the legal profession, and insulation of law firms from non-lawyer investment and leadership. Comparisons are drawn with England & Wales and Australia, jurisdictions which have significantly liberalized their legal services regulatory regimes. The article concludes that, although regulatory liberalization is not a magic bullet for the accessibility of justice, there is strong evidence of a link between regulation and access. North American lawyer regulators need to understand and work to reduce the effects of their policies on the accessibility of justice.

Full text: http://ssrn.com/abstract=2303987

Core Values: Professionalism and Independence Theories in Lawyer Regulation

Noel Semple

Working Paper, May 13 2013

North America is the common law world’s last bastion of traditional lawyer self-regulation. In the United States and in common law Canada, lawyers make and enforce almost all of the rules which govern legal service delivery. These regulatory regimes are also distinctive in their (i) maintenance of a single, unified occupation of lawyer, (ii) insulation of law firms from non-lawyer ownership, and (iii) near-exclusive regulatory focus on individual lawyers as opposed to law firms. Other wealthy English-speaking countries (the UK, Ireland, Australia and New Zealand) have gradually abandoned all of these elements of traditional lawyer regulation over the past 40 years.

Why have North American lawyers and legislators resisted such reforms and maintained traditional self-regulation? One school of thought is that lawyers have defended traditional self-regulation in order to protect their own interests. However, North American lawyers supported by functionalist sociologists respond that traditional self-regulation protects the interests of clients and the public by upholding important core values. This article seeks to elucidate this public interest theory, through a new reading of the legal and sociological literature. The thesis is that professionalism and independence are the two allied but conceptually distinct core values which animate the public interest theory of traditional lawyer regulation.

Online: SSRN, http://ssrn.com/abstract=2262518

The Settlement Mission in Custody and Access Cases

Noel Semple

(2013) Working Paper.

This article reports on empirical research into family justice system workers, and their approach to child custody and access cases.  The child custody evaluators whom the author interviewed have formal roles that appear to require analytical decision-making about the best interests of children.  However, the central finding of this research is that these professionals are actually pursuing voluntary settlement between the adult parties as their primary goal.  This article then proposes an explanation for this observed phenomenon, based on the evolution of custody and access law and procedure over the past 30 years.  The rise of the “logic of durability” seems to offer a convincing explanation for the concerted pursuit of settlement among both child custody evaluators and judges.

Online: SSRN, http://ssrn.com/abstract=2101819.