Invited contribution to Lawyers in Society: 30 Years After, an international book project edited by Richard L. Abel, Ole Hammerslev, Ulrike Schultz, and Hilary Sommerlad. Forthcoming, publication projected for 2021.
Legal Ethics
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.
Access to Justice: After the Machines Take Over
Slaw.ca (January 27, 2016)
Full text: http://www.slaw.ca/2016/01/27/access-to-justice-after-the-machines-take-over-2/. Reprinted in Obiter Dicta (Osgoode Hall Law School), February 24 2016. Online: http://obiter-dicta.ca/2016/02/24/access-to-justice-after-the-machines-take-over/.
“The traditional professions will be dismantled, leaving most (but not all) professionals to be replaced by less expert people and high-performing systems.” This is the central message of The Future of Professions, a new book from Richard and Daniel Susskind. Machines, they argue, will take over much professional work. Even when the machines cannot do so alone, the Susskinds expect that they will allow laypeople, paraprofessionals, and the clients themselves do the necessary work.
One way or the other, highly-trained and expensive human professionals will be mostly cut out of the value chain. The future of the professions, in this view, doesn’t seem like much of a future at all. Richard Susskind’s previous books make it very clear that lawyers are included in this troubling prediction.
This prophecy can be disputed, or resisted on moral grounds. Let’s assume, however, that machines will in fact make steady incursions into lawyer work. What does this mean for access to justice in the future?
The Susskinds offer one reason for A2J optimism: machines will themselves soon provide mass, affordable access to justice. I believe there is another good news story for access to justice: by taking over much of lawyers’ current work, machines may allow the Bar to refocus on meeting other sorts of unmet legal needs, which demand the human touch. 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.
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