A Third Revolution in Family Dispute Resolution: Accessible Legal Professionalism

(2017) Windsor Yearbook of Access to Justice, Vol. 34, No. 1. (Peer-reviewed).

Innovation in family law firms can tangibly improve access to justice in Canada. This article develops that claim by drawing on empirical data and scholarship about Canadian family law. Part 1 explains how and why legal needs arising from the dissolution of intimate relationships are so difficult for the parties to meet.  This Part draws on civil legal needs surveys, surveys with lawyers, and data from interviews with litigants. The focus shifts to family law firms (including sole practitioners) in Part 2, using new empirical data about the Canadian lawyers who do this work. Three promising opportunities to innovate for accessibility in family law practice are identified: (i) innovative fee structure; (ii) innovative service variety; and (iii) innovative division of labour. A “third revolution” in Canadian family law is proposed in Part 3.  Our family law doctrine was revolutionized beginning in the 1960s, and family law alternative dispute resolution was similarly transfigured beginning in the 1980s. It is now time to foment a third revolution, in family law practice accessibility, to bring the benefits of family justice to all Canadians who need them.

Full text online: https://ojs.uwindsor.ca/index.php/WYAJ/article/view/5009

 

Regulating Contingency Fees: A Consumer Welfare Perspective

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.

Personal Plight: Mending the Market

Slaw.ca Legal Ethics Column, Aug. 11 2017.

http://www.slaw.ca/2017/08/11/personal-plight-mending-the-market/

“Personal plight” legal services are those provided to individual clients whose legal needs arise from disputes. Personal plight areas such as family law, refugee law, and human rights are the site of Canada’s worst access to justice problems.

The market for personal plight legal services functions poorly, as Malcolm Mercer and Amy Salyzyn have shown in this space. A key problem, I suggest here, is that it is too difficult for consumers to shop intelligently. This undermines healthy competition and legal professionalism, in addition to access to justice. Regulators can and should mend the market for personal legal services.

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Attorney on Amazon? Online Marketplaces for Legal Services

Law and Technology at Windsor Law Blog, 2017.

Online: http://www.lteclab.com/blog-post/attorneys-on-amazon-online-marketplaces-for-legal-services/.

For an individual with a legal need, shopping intelligently for a law firm can be a frustrating experience. It is difficult to get any objective information about price or quality, and comparison-shopping is arduous. Are online marketplaces, which play an increasingly central role in the consumer economy, part of the solution to this access to justice problem?

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Three Routes to Justice for All

Lawyers Weekly, October 30, 2015.

Full text: https://www.thelawyersdaily.ca/articles/2204/the-three-routes-to-justice-for-all

The LSUC needs to expand the scope of paralegals, online information and ABS.

A statutory mandate was given to the Law Society of Upper Canada almost ten years ago: “Act so as to facilitate access to justice for the people of Ontario.” How effectively has it been carried out?

Undeniably, access to justice is now taken seriously at Osgoode Hall. Recent initiatives such as the treasurer’s action group on access to justice are encouraging to those who want all Ontarians to enjoy the law’s benefits.

While great strides have been made, a great distance remains to be travelled. Three policy areas — paralegal practice, online information, and alternative business structures — illustrate both how far the law society has come and how far it must still go.
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ABS: What Horrors Within?

Canadian Bar Association National Magazine, December 4, 2014.

“Professor, I was wondering if you could tell us anything about the Chamber of Secrets,” said Hermione in a clear voice… “What exactly do you mean by the ‘horror within’ the Chamber?”

“That is believed to be some sort of monster…” said Professor Binns in his dry, reedy voice.

-J.K. Rowling, Harry Potter and the Chamber of Secrets

An alternative business structure (ABS) is a law firm that includes non-lawyers as investors, managers, or partners. Such arrangements are effectively forbidden throughout Canada today. However prominent voices, such as the CBA Legal Futures Initiative, are now calling for regulators to roll back these rules and welcome ABS firms to our legal landscape.

A future with ABS is a chamber of secrets, rumoured to contain both glittering treasures and savage monsters. The treasures may include enhanced access to justice for clients,and new innovation and flexibility for legal professionals. The value of these treasures cannot be known unless and until we roll back the regulation currently blocking the entrance to the chamber.

However many are reluctant to do so, because two monsters are also said to reside in the chamber. One of these beasts, it is said, eats legal ethics by corrupting lawyers. The other allegedly eats lawyers themselves, by stealing their clients.

While the treasures in the chamber are uncertain, the two monsters are entirely figmentary. Our regulators therefore have nothing to lose–and possibly a great deal to gain—from opening the door to alternative business structures

Full text: https://www.dropbox.com/s/cj9uxiqfb09bdm8/Alternative%20Business%20Structures-%20A%20Chamber%20of%20Secrets.docx?dl=0

 

The Cost of Seeking Civil Justice in Canada

(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, https://www.dropbox.com/s/9q3yjcg53aix0rp/Arm%20and%20a%20leg%20%28CBA%20National%20Magazine%29.docx?dl=0

Personal Plight Legal Practice and Tomorrow’s Lawyers

(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: https://www.dropbox.com/s/mws2xb7a000sxnb/Personal%20Plight%20Legal%20Practice%20and%20Tomorrow%27s%20Lawyers.pdf?dl=0

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

(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

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

(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