Contingency Fee Arrangements: Comments on to Law Society of Upper Canada Advertising and Fee Arrangements Working Group.

With Jenna Wright, September 29, 2017.

This is a submission to the Law Society of Upper Canada’s Contingency Fee Arrangements Consultation. In this document, we provide several recommendations in response to the Fifth Report of the Advertising & Fee Arrangements Issues Working Group. The premise behind these recommendations is that contingency fee regulation should seek to maximize consumer welfare. In other words, regulation should advance the interests of clients in (i) low price, (ii) high quality, (iii) fairness and predictability, and (iv) choice. This Submission considers seven issues:
1. Introduce Mandatory Retainer Contract 2
2. Avoid Excessively Low Fee Caps 3
3. Calculation of Contingency Fees 4
4. Regulate Disbursements 6
5. Firm Responsibility for Financial Risk Arising in Civil Litigation 7
6. Advertising 8
7. Moving from “Heavy Hand” to “Light Touch” Regulation 8

Can be found online at: https://ssrn.com/abstract=3045503

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]

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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

Get Creative in Billing Clients for Dispute Resolution

Canadian Lawyer, November 20, 2017.

Online: http://www.canadianlawyermag.com/author/noel-semple/get-creative-in-billing-clients-for-dispute-resolution-14925/.

Most individuals looking for legal help in a dispute would love to scrap pre-paid, uncapped time-based billing, and lawyers should be open to that.

Imagine a list of clients’ top 10 pet peeves about law firms. Pre-paid, uncapped time-based billing would rank high. Why do so many firms in niches such as family law, estate litigation and employment law stick with this much-unloved system? How can these firms realistically and profitably move past it? Continue reading

Generalism and Access to Justice: Jack of All Trades, Master of None?

Slaw.ca Legal Ethics Column, October 6 2017.

http://www.slaw.ca/2017/10/06/generalism-and-access-to-justice-jack-of-all-trades-master-of-none/

The rise of specialization is among the biggest changes in the practice of law over the past hundred years. Most lawyers and paralegals are increasingly able to focus on a smaller number of legal niches. That is good news, for practitioners and also for clients. However, I will suggest here that generalist legal professionalism has an enduring role in fostering access to justice.

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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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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

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 Professionsa 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

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

 

Dealing with Climate Change “Losers.”

The Windsor Star, July 15, 2014.

Full text: http://blogs.windsorstar.com/opinion/dealing-with-climate-change-losers

How can politicians move climate policy forward?  “Dealing with losers” is a big part of the answer.

Last month, Stephen Harper joined the other G7 leaders in calling for “urgent and concrete action” to address climate change. We should expect our Prime Minister to take climate change seriously, because it’s probably the gravest long-term threat to Canada’s security and prosperity. Here in Windsor, heat waves and declining water levels are among the serious problems partially attributable to global warming.
President Barack Obama has mandated significant reductions from the leading sources of greenhouse gas emissions in his country. Will Prime Minister Harper be able to do likewise with Canada’s oil and gas sector, and with consumers’ transportation and home energy emissions?

A new book from Professor Michael Trebilcock, of the University of Toronto, can help our Prime Minister do so.  In Dealing with Losers: the Political Economy of Policy Transitions, Trebilcock shows that even the wisest policy changes create “losers.”  The key message of the book is that leaders must mitigate the opposition of those who stand to lose from policy change. Trebilcock proves this with examples from fields like public pension reform and agricultural supply management, in addition to carbon pollution control.

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CDO: Stop Assisting the NYC Migration

Ultra Vires (U. of Toronto Faculty of Law)

The Career Development Office (CDO) has to be one of the best-run bits of U of T. Efficient, compassionate, and knowledgeable — these people do a great job. I can only think of one thing that would make the CDO better: they should stop helping American firms hire our best graduates. The CDO shouldn’t advertise American jobs, host American OCIs, or do anything else to encourage our graduates to work outside the country.

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A Cowardly Concession

The Varsity (Online Edition), October 26th, 2006.

On Monday, Hart House hosted a debate between candidates for the November 13th election of Toronto’s mayor.  Three candidates were invited – Stephen LeDrew, David Miller, and Jane Pitfield.  Among the 38 registered candidates, these are the only three who have any chance of being elected Mayor of Toronto.

A large and excited audience filed into the Great Hall at 6:30 to see and hear them.  As the spectators took their seats, they found that someone else was already making a speech.  The speaker was one of the 35 candidates who were not invited. He carried a large, dirty broom which he waved in the air and banged on the floor.  He ranted incoherently at the top of his lungs. He did so for a full hour, as the spectators’ mood shifted from amusement to embarrassment to anger.

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