Access to Justice Levies for Lawyers: Putting Our Money Where Our Mouths Are

Slaw.ca Legal Ethics Column, Dec. 12 2017

Online: http://www.slaw.ca/2017/12/12/access-to-justice-levies-for-lawyers-putting-our-money-where-our-mouths-are/

Tyrell Moodie, accused of drug offences and facing several years in prison, was denied a Legal Aid Ontario certificate because his income of $16,211 per year exceeded the cut-off threshold. Legal aid services for refugees in B.C. and Ontario were threatened with drastic cuts in 2017. Self-represented litigants are now the majority in many family courts, mostly because people cannot afford the legal assistance that they would love to have, and legal aid won’t pay for it.

Every media story about a legal aid shortfall includes a quote from a lawyer, pointing the finger at the government for inadequate funding. However, every time the legal profession points its finger at the state, three fingers are pointing back at the legal profession. As trustees and beneficiaries of the legal system, lawyers should make a more tangible contribution to ensuring its accessibility.

I suggest that our law societies should collect mandatory “access to justice levies” from all licensees, and use the money to fund access to justice for people of modest means. These levies should be progressive (calculated based on the income of each licensee). The clinics and programs receiving the funds should be selected by the licensees themselves, through participatory democracy processes. Continue reading

Legal Services Regulation in Canada: Plus ça change?

In Andy Boon, ed., International Perspectives on the Regulation of Lawyers and Legal Services, (Oxford: Hart Publishing, 2017).

In common law Northern Europe and in Australasia, a wave of reform has been transforming legal services regulation since roughly 1980. Old structures and approaches, based on the principles of professionalism and lawyer independence, are being replaced in these jurisdictions by new ones that prioritize competition and consumer interests. In the United States this has conspicuously not happened, leaving intact a regulatory approach whose broad outlines have changed little in the past 100 years.

Thus, I have argued that the legal services regulatory regimes of the common law world today are bifurcated into (i) a competitive-consumerist paradigm apparent in the UK, in Australia, and in their smaller neighbours, and (ii) a professionalist-independent mode which survives in the United States and a few other places.

Where does Canada fit into this picture? With a view to locating the author’s home and native land on the spectrum between the competitive-consumerist and professionalist-independent traditions, this Chapter reviews key characteristics and important recent developments in Canadian legal services regulation. After providing an overview of the Canadian legal profession, the Chapter proceeds in four sections: (i) Governance and the Role of the State; (ii) Professional Organization and Occupational Unity; (iii) Firm Insulation and Alternative Business Structures, and (iv) Regulatory Focus. I conclude that, in Canada’s common law provinces, legal services regulation remains firmly in the professionalist-independent tradition.

Full text online, SSRN: http://ssrn.com/abstract=2833336.

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

Long Live the Law Practice Program

I am struggling to understand the justification for the recent committee recommendation to end the Law Practice Program. The LPP is the Law Society’s alternative licensing program predominantly used by candidates unable to find articling positions.

The committee‘s central rationale seems to be that the LPP is “perceived as second tier.” They acknowledge that (i) “there is no evidence to suggest that the LPP is in fact second-tier” and (ii) the LPP is “of very high quality and may, in fact, excel over articling in a number of areas” in terms of preparing candidates for practice (para 59).

A regulator ending the LPP because it’s perceived as second tier to articling is like a regulator banning Chevrolets because they are perceived as second tier to Cadillacs. A regulator which does so must, at very least, have a realistic plan to ensure that everyone will be able to drive a Cadillac/get an articling position.  I can’t find any such plan in this Report. Continue reading

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

(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

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

 

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.

A Taxonomy of Lawyer Regulation

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

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

Core Values: Professionalism and Independence Theories in Lawyer Regulation

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