The British Invasion: Legal Services Regulation Edition

Slaw.ca Legal Ethics Column, April 10, 2020.

Found online at: http://www.slaw.ca/2020/04/10/the-british-invasion-legal-services-regulation-edition/

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 The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to.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. Continue reading

Harassment in the Legal Profession: A Few Bad Apples?

Slaw.ca Legal Ethics Column, February 24, 2020.

Found online at: http://www.slaw.ca/2020/02/24/harassment-in-the-legal-profession-a-few-bad-apples/

Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.

“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often based on prohibited grounds of discrimination such as gender, race, or disability. Harassment is distinct from assault (which requires touching), but in many cases the harassing course of conduct includes assault.

Once you start paying attention, evidence of harassment in law firms is not hard to find. Every month, approximately 15 complaints are made to the Law Society of Ontario’s Discrimination and Harassment Counsel (DHC) , regarding alleged discrimination or harassment by a member of the legal profession. Sexual harassment is the most common complaint to the DHC, representing a quarter of the complaints. Racial harassment is also commonly recorded in this data. In a recent Globe & Mail article, Jocelyn Downie and Elaine Craig remind readers that Gerald Regan, a famous lawyer and former Premier of Nova Scotia, has been accused of sexual harassment and assault by more than 35 women. His success seems to suggest that this conduct is still taken lightly in many quarters. Continue reading

Dispatches From the Front Lines of Canadian Legal Ethics

Slaw.ca Legal Ethics Column, December 16, 2019.

Found online at: http://www.slaw.ca/2019/12/16/dispatches-from-the-front-lines-of-canadian-legal-ethics/

On October 25 & 26, Windsor Law proudly hosted the 2019 conference of the Canadian Association for Legal Ethics. The presentations touched on many of the most important issues confronting the legal profession today. Check out the brief summaries below to stay up to date. Continue reading

Get It in Writing: Legal Fees, Retainer Contracts and Newell v. Sax

Slaw.ca Legal Ethics Column, October 3, 2019.

Found online at: http://www.slaw.ca/2019/10/03/get-it-in-writing-legal-fees-retainer-contracts-and-newell-v-sax/

Should a lawyer decide how much his client should pay him, and then write himself a cheque for that amount, without the client’s agreement? Is a discretionary judicial decision about the value of a legal service an adequate substitute for an agreement between lawyer and client? In Newell v. Sax, the Ontario Court of Appeal effectively answered “yes” to both of these questions. In my view, arbitrary fees invented by lawyers, or judges, are a grave and unnecessary threat to legal ethics. The law should insist on upfront disclosure and clear contractual agreements about legal fees, absent very exceptional circumstances. Continue reading

The Absent Ethics of Legal Fees : Putting Profit-Seeking in Its Place

Slaw.ca Legal Ethics Column, August 14, 2019.

Found online at: http://www.slaw.ca/2019/08/14/the-absent-ethics-of-legal-fees-putting-profit-seeking-in-its-place/

A lawyer should be a loyal ally for a person with a legal need. This loyalty is at the core of our profession’s value proposition to society. Thus, legal ethics strives to guarantee devoted service to clients. Conflict of interest rules prohibit all situations creating “substantial risk” that the lawyer’s loyalty to a client “would be materially and adversely affected by the lawyer’s own interest.” Lawyers, as fiduciaries, must be “concerned solely for the beneficiary [client]’s interests, never the fiduciary [lawyer]’s own.”

There is, however, a glaring exception to the duty of selfless loyalty to clients. Lawyers are allowed to pursue their own pecuniary interests in collecting fees, at the expense of the clients who pay them. When a lawyer acts to obtain fees from a client, (s)he is clearly not acting as a fiduciary who puts the beneficiary’s interest first.

Everyone deserves to be paid for their work, and without the profit motive very few legal services would be made available to anyone. However, legal ethics must reconcile lawyers’ self-interested pursuit of fees with the general prohibition of conflicts of interest, and with the generally fiduciary nature of the lawyer-client relationship. Continue reading

Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion

Slaw.ca Legal Ethics Column, June 6, 2019.

Found online at: http://www.slaw.ca/2019/06/06/tort-litigation-and-greenhouse-gas-emissions-changing-the-climate-of-opinion/

Climate change is probably the single greatest threat to the security and prosperity of Canadians, as well as the rest of the human race. The most effective, least painful way to mitigate climate change is to impose a price on greenhouse gases worldwide, either through carbon taxes or tradable emission permits. However, carbon pricing is as politically difficult as it is economically efficient. In most countries, voters and political leaders have so far refused to support prices high enough to keep the risk of catastrophic climate change within an acceptable band. In Canada, there is also real risk that the federal carbon pricing backstop will be derailed on constitutional grounds. Continue reading

A Tale of Two Attorneys-General: Jody Wilson-Raybould and Caroline Mulroney

Slaw.ca Legal Ethics Column, April 10, 2019.

Found online at: http://www.slaw.ca/2019/04/10/a-tale-of-two-attorneys-general-jody-wilson-raybould-and-caroline-mulroney/

Twice in the last six months, Canadian Attorneys-General have been encouraged to resist the first ministers of their respective governments. Today, federal AG Jody Wilson-Raybould is widely commended for resisting repeated requests from the PM’s office to change tack on the prosecution of SNC-Lavalin (See Patricia Hughes’ comprehensive Slaw post on the affair).

In September of 2018, Ontario AG Caroline Mulroney was called upon to vote against, or resign from, Premier Doug Ford’s government after Ford proposed to invoke section 33 of the Charter. The Superior Court of Justice had found Ford’s plan to reduce the size of Toronto City Council to violate freedom of expression, and Ford announced that he would use the “notwithstanding clause,” if necessary, to override this decision. (The SCJ ruling was quickly overturned on appeal, making section 33 unnecessary).

What do these two cases have in common, and what sets them apart? Continue reading

Why We Can’t Ban Legal Advertising

Slaw.ca Legal Ethics Column, December 14, 2018.

Found online at: http://www.slaw.ca/2018/12/14/why-we-cant-ban-legal-advertising/

Whenever I see billboard or TV advertising for law firms, I worry. I don’t worry about the “dignity” of the legal profession; I worry about the people at whom these ads are targeted. Choosing the best possible firm can make a major difference in the long-term happiness and financial security of a person with a serious personal plight legal need (e.g. a personal injury, a divorce, or a criminal charge). Mass media ads almost never provide any useful information that would help someone in this position make an intelligent choice. The airbrushed photos, empty boasts, and gleaming boardrooms in these ads are meant to promote emotional resonance and brand recognition, not reasoned decision-making.

Advertising for normal goods and services — which most consumers can understand and evaluate — may foster healthy competition, which in turn improves quality and reduces price. By contrast, mass market advertising for opaque professional services such as law is more likely to promote unhealthy and consumer-hostile competition. It encourages a struggle between firms to achieve name recognition by deploying expensive campaigns, which are ultimately paid for by clients through higher fees. Clients are better off when they choose law firms by relying on knowledgeable and unbiased referrals, or comparing objective information about the available options. In such a market, financial incentives are aligned with professionalism: firms’ profits will depend on the real value that they offer to clients, not on their marketing budgets.

With these thoughts in mind, I started writing this column to argue that most or all mass-market law firm advertising should simply be banned — as it was before roughly 1980. However in researching this piece, I’ve come across some compelling reasons to think otherwise. Continue reading

Shady Billing: Closing the Hall of Shame

Slaw.ca Legal Ethics Column, Jan. 30 2018

http://www.slaw.ca/2018/01/30/shady-billing-closing-the-hall-of-shame/

Only “fair and reasonable” fees and disbursements can be charged by lawyers to their clients. This rule is uncontroversial, and applies across the country. Nevertheless, the following billing practices are used by some Canadian firms, and not clearly forbidden by regulation:[1]

Continue reading

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.

Continue reading

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 here.

 

Legal Services Regulation At The Crossroads: Justitia’s Legions

(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.