J.D., Ph.D. Assistant Professor, University of Windsor Faculty of Law. www.noelsemple.ca

This empirical research was generously supported by the OBA Foundation Chief Justice of Ontario Fellowship in Legal Ethics and Professionalism Research.

Edward O. Laumann and John P Heinz, “Specialization and Prestige in the Legal Profession: The Structure of Deference” (1977) 2 American Bar Foundation Research Journal 157.

John P. Heinz and Edward O. Laumann, “The Legal Profession: Client Interests, Professional Roles, and Social Hierarchies” (1978) 76 Michigan Law Review 1111; John P. Heinz and Edward O. Laumann, Chicago Lawyers : the Social Structure of the Bar (New York: Russell Sage Foundation and American Bar Foundation, 1982). This hemispheric division by client type has been very influential for subsequent sociologists of the legal profession. See for example Donald D. Landon, Country Lawyers: The Impact of Context on Professional Practice (New York: Praeger Publishers, 1990); Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997); Dana Ann Remus, “Hemispheres Apart, a Profession Connected” (2014) 82 Fordham Law Review 2665. By contrast, Heinz & Laumann’s subdivision of the personal client hemisphere into uncontested “personal business” and contested “personal plight” matters is much less frequently seen in the subsequent literature. However the premise of this paper is that, in terms of access to justice, personal plight legal practice is descriptively and normatively distinct from personal business legal practice.

The southern hemisphere of Figure 1 includes state clients and large businesses that are not corporations.

CBA Legal Futures Initiative, Futures: Transforming the Delivery of Legal Services in Canada (Ottawa: CBA, 2014) online: Canadian Bar Association <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> (last accessed: 26 April 2017) at 7.

Authorized by University of Windsor Research Ethics Board Certificate Number 31927, granted February 25, 2015.

The dispute-related legal needs of owner-operated and small family corporations also belong in this category. Even if the client is technically a corporation, these cases share the characteristics of personal plight cases described below.

Neither the fact that the legal dimensions of a problem go unrecognized, nor the fact that the individual does not invoke any formal justice system processes to deal with the problem, prevent the problem from being legal in nature so long as the law has some potential to assist: Ab Currie, Nudging the Paradigm Shift: Everyday Legal Problems in Canada (Toronto: CFCJ, 2016) online: Canadian Forum on Civil Justice <http://cfcj-fcjc.org/sites/default/files//publications/reports/Nudging%20the%20Paradigm%20Shift%2C%20Everyday%20Legal%20Problems%20in%20Canada%20-%20Ab%20Currie.pdf> (last accessed: 26 April 2017) at 1.

Ibid.; Trevor C.W. Farrow et al., Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: CFCJ, 2016) online: CFCJ <http://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf> (last accessed: 26 April 2017) at 5.

“G20 Class Action,” <http://www.g20classaction.ca> (last accessed: 26 April 2017).

Michael Trebilcock, Anthony Duggan and Lorne Sossin, Middle Income Access To Justice (Toronto: University of Toronto Press, 2012).

Michael Trebilcock, Anthony Duggan and Lorne Sossin, “Introduction” in Michael Trebilcock, Anthony Duggan & Lorne Sossin eds., Middle Income Access To Justice 2012) at 4; Canadian Bar Association (CBA) Standing Committee on Access to Justice, Underexplored Alternatives for the Middle Class (Ottawa: CBA, 2013) online: CBA <http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/MidClassEng.pdf> (last accessed: 26 April 2017). However, it certainly cannot be presumed that low-income people have all of their personal plight legal needs met by the state, especially in the case of those civil legal needs for which legal aid coverage is meager regardless of one’s income: Michael Trebilcock, Report of the Legal Aid Review (Toronto: Ministry of the Attorney General (Ontario), 2008) online: Ministry of the Attorney General (Ontario) <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/> (last accessed: 26 April 2017) at 76.

Indeed, access to legal services is arguably improving for corporate clients and for individuals with uncontested legal needs. Technology and the evolving legal services industry are creating more options than ever before for meeting such needs: CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 19; Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015).

Daphne Dumont aptly identifies the “double pressure” placed on clients by court case: they must learn both the law governing their particular need and they must learn the necessary legal procedure. They must do both quickly enough to make the necessary decisions. (Daphne Dumont, ““Better . . . or Worse?” The Satisfactions and Frustrations of the Lawyer‑Client Relationship” in David L. Blaikie, Thomas Cromwell & Darrel Pink eds., Why Good Lawyers Matter (Toronto: Irwin Law Inc., 2012) at 15).

Gillian K. Hadfield, “The Price of Law: How the Market for Lawyers Distorts the Justice System” (2000) 98 Michigan Law Review 953 at 965-8; Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It (New York: Oxford University Press, 2016) at Chapter 7.

The term “civil” includes family law problems for the purpose of this book.

Consumer, debt and employment problems are most common, followed by neighbour, discrimination and family problems: Trevor C.W. Farrow et al., “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report.” (Toronto: CFCJ, 2016), online: <http://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf> at 1, 7-8.

Ibid. at 11: “Nearly one-third (30%) of the respondents reported their problems had not been resolved and were ongoing. The majority (55%), however, reported that their problems had been resolved … Among those with problems that had been resolved, 46% said the outcome for one (or both) of their problems was unfair.”

Ibid. at 9.

Noel Semple, “The Cost of Seeking Civil Justice in Canada” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016> (last accessed: 26 April 2017).

Michael Trebilcock, “The Price of Justice” in Trevor Farrow & Les Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, 2018); Gillian K. Hadfield, “Higher Demand, Lower Supply? A Comparative Assessment of the Legal Landscape for Ordinary Americans” (2010) 37 Fordham Urban Law Journal 129, online: <http://works.bepress.com/ghadfield/31> (last accessed: 26 April 2017) at 136.

Martin Gramatikov, “A Framework for Measuring the Costs of Paths to Justice” (2009) 2 The Journal Jurisprudence 111; Noel Semple, “The Cost of Seeking Civil Justice in Canada,” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016> at 642.

Section 4.5, below.

Ontario Trial Lawyers Association, Submission on Alternative Business Structures (Toronto: OTLA, 2014) online: OTLA <https://www.lsuc.on.ca/uploadedFiles/Ontario%20Trial%20Lawyers%20Association.pdf> (last accessed: 26 April 2017) at 32.

Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845> (last accessed: 26 April 2017) at section 2.2.

Section 4.5, below.

“R. v. Rowbotham, 41 CCC (3d) 1; 63 CR (3d) 113; [1988] CarswellOnt 48; [1988] OJ No 271 (QL); 25 OAC 321; 35 CRR 207; 4 WCB (2d) 30,” <http://canlii.ca/t/1npn6> (last accessed: 26 April 2017); New Brunswick (Minister of Health and Community Services) . G. (J.), [1999] 3 S.C.R. 46.

Michael Trebilcock, “The Price of Justice” in Farrow & Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, 2018).

Action Committee on Access to Justice in Civil and Family Matters Family Justice Working Group, Meaningful Change for Family Justice: Beyond Wise Words (Ottawa: ACAJCFM, 2013) online: ACAJCFM <http://www.westcoastleaf.org/userfiles/file/FJWG%20report%20Meaningful%20Change%20Consultation%20Jan%202013.pdf> (last accessed: 26 April 2017); Action Committee on Access to Justice in Civil and Family Matters, Access To Civil & Family Justice: A Roadmap for Change (Toronto: Canadian Forum on Civil Justice, 2013) online: CFCJ <http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf> (last accessed: 26 April 2017); CBA Access to Justice Committee, Reaching Equal Justice: An Invitation To Envision And Act (Ottawa: CBA, 2013) online: CBA <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> (last accessed: 26 April 2017); Law Commission of Ontario, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity (Toronto: LCO, 2013) online: LCO <http://www.lco-cdo.org/family-law-reform-final-report.pdf> (last accessed: 26 April 2017); Advocates’ Society, Family Justice Reform Project (Toronto: The Advocates’ Society (Ontario), 2014) online: The Advocates’ Society (Ontario) <http://www.advocates.ca/assets/files/pdf/news/Family_Justice_Reform_Paper-Grassroots_Project_oct6.pdf> (last accessed: 26 April 2017); Barbara Landau et al., Home Court Advantage: Creating a Family Law Process That Works (Final Report and Recommendations from The Home Court Advantage Summit) (Toronto: Ontario Bar Association, 2009) online: OBA <; Noel Semple and Nicholas Bala, Reforming the Family Justice System: An Evidence-Based Approach (Report commissioned by the Association of Family and Conciliation Courts, Ontario Chapter) (Toronto: AFCC Ontario Chapter, 2013) online: SSRN <http://ssrn.com/abstract=2366934> (last accessed: 26 April 2017).

Rachel Birnbaum, Nicholas Bala and Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers & Litigants” (2013) 91 Canadian Bar Review 67 at 75-6; Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (Kingsville, Ontario: Representing Yourself in a Legal Process, 2013) online: RYLP <http://representingyourselfcanada.com/2014/05/05/research-report/> (last accessed: 26 April 2017).

Rebecca Sandefur’s meta-analysis found a “potentially very large impact of lawyer representation on lawyer case outcomes… expanding access to attorneys could radically change the out- comes of adjudicated civil cases” Rebecca Sandefur, “Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact” (2015) 80 American Sociological Review 909. For an example of this finding in the Canadian context, see e.g. Sean Rehaag, “The Role of Counsel in Canada’s Refugee Determination System: An Empirical Assessment” (2011) 49 Osgoode Hall Law Journal 71.

Noel Semple, “The Cost of Seeking Civil Justice in Canada,” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016> .

We as lawyers should aspire to serve as many potential clients as possible, because it is our duty to make justice accessible (Law Society of Upper Canada, “Barristers’ Oath,” <http://www.lsuc.on.ca/WorkArea/DownloadAsset.aspx?id=9720> (last accessed: 26 April 2017)) but also because it is also in our economic interest to do so.

Philip Marsden and Peter Whelan, “’Consumer Detriment’ and its Application in EC and UK Competition Law” (2006) 2006 European Competition Law Review 569. Given the special nature of the lawyer-client relationship clients are more than merely the simplistic consumers of economic theory, however they are still consumers with typical consumer interests: Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015)at 20, 27.

“Each customer has different value propositions. These may include costs, security, fear, social status, speed and delivery. Lawyers must dig down and discover what the customer really wants in order to deliver the best value to that customer. Determine the value the customer is looking for, and then exceed those expectations.” (Lonny Balbi, “Flat-fee billing: replacing time with value (The Lawyers Weekly, July 03 2009),” <http://www.lawyersweekly.ca/articles/954> (last accessed: 26 April 2017)).

Not all personal plight clients are inexperienced. Criminal defense practice, for example, may include more clients with prior criminal justice system experience. Hamilton criminal defence lawyer A2 (who had been practicing in the area for less than two years) said “most of the people that I’ve been getting are repeat offenders so they sort of already understand the process. In some cases I think they know more than I do. They know what’s going to happen.” (Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015).

Rebecca L. Sandefur, “Money Isn‘t Everything: Understanding Moderate Income Households‘ Use of Lawyers‘ Services” in Michael Trebilcock, Anthony Duggan & Lorne Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012); Competition & Markets Authority (UK), Legal services market study: Final Report (London: 2016) online: CMA <https://assets.publishing.service.gov.uk/media/5887374d40f0b6593700001a/legal-services-market-study-final-report.pdf> (last accessed: 26 April 2017) at 48; Gillian K. Hadfield, “Higher Demand, Lower Supply? A Comparative Assessment of the Legal Landscape for Ordinary Americans,” (2010) 37 Fordham Urban Law Journal 129, online: <http://works.bepress.com/ghadfield/31> ; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 142; Ann Juergens, “Toward a More Effective and Accessible Solo and Small Firm Practice Model” in Samuel Estreicher & Joy Radice eds., Beyond Elite Law: Access to Civil Justice in America (New York: Cambridge University Press, 2016) at 385.

Australian Government Productivity Commission, Access to Justice Arrangements: Inquiry Report (Canberra: ACPC, 2014) online: ACPC <http://www.pc.gov.au/inquiries/completed/access-justice/report> (last accessed: 26 April 2017) at 192.

“In the initial client interview, I get the sense that often they have never been to a lawyer before. They’ve certain never been to the local lawyer usually for this particular issue that they’ve had in the estates world. They haven’t shopped around in price and they’re usually willing to sign the retainer agreement.” (Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Even a person who has had a legal need and retained a law firm in the past is unlikely to have had the same kind of need or dealt with the same kind of firm. For example, having retained a lawyer for a straightforward residential property conveyance is not particularly helpful preparation for selecting a family law firm for a contested divorce.

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 23.

Clients “may be ill-equipped to diagnose or identify the precise nature of the problem or need they are confronting…even if they can identify the problem or need, they may be ill-equipped to choose an appropriate service provider, to exercise meaningful judgment over the appropriate service provider, and to monitor effectively performance by the service provider of the relevant procedure thereafter and the time and costs associated therewith.” (Michael Trebilcock, “Report of the Legal Aid Review.” (Toronto: (Ontario), 2008), online: <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/>). See also Edward Shinnick, Fred Bruinsma and Christine Parker, “Aspects of regulatory reform in the legal profession: Australia, Ireland and the Netherlands” (2003) 10 International Journal of the Legal Profession 237; Canadian Bar Association (CBA) Standing Committee on Access to Justice, “Underexplored Alternatives for the Middle Class.” (Ottawa: CBA, 2013), online: <http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/MidClassEng.pdf> at 18. Evaluating price is especially difficult for inexperienced would-be clients when the price will be based on hours billed. If the firms charge by the hour, even if the hourly rates can be compared the final price will depend on the number of hours billed which is highly unpredictable. Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>.

Francisco Cabrillo and Sean Fitzpatrick, The economics of courts and litigation (Cheltenham, UK ; Northampton, MA: Edward Elgar, 2008); Larry E. Ribstein, “Ethical Rules, Agency Costs and Law Firm Structure” (1998) 84 Virginia Law Review 1707; Richard Moorhead, “Filthy lucre: lawyers’ fees and lawyers’ ethics – what is wrong with informed consent?” (2011) 31 Legal Studies 345 at 349-50; Julian Webb, “Regulating Lawyers in a Liberalized Legal Services Market: The Role of Education and Training” (2013) 24 Stan. L. & Pol’y Rev. 533 at 541.

Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>.

Contrast to client sophistication as driving force in corporate market per Daniel Martin Katz, “Observations Regarding Innovation in the Legal Industry (Slideshare, Sep 20, 2015),” <http://www.slideshare.net/Danielkatz/law-tech-design-delivery-observations-regarding-innovation-in-the-legal-industry-professor-daniel-martin-katz/173-InternetofContractswhich_is_a_special_case> (last accessed: 26 April 2017).

According to Windsor litigator NN, clients often tell her “somebody said or I work with so and so and he didn’t have to do this. That’s where it gets dangerous. They get a little bit of knowledge … [and] that little bit of knowledge is where it gets dangerous because they start speaking like they know and they don’t understand the concept. They got a snip bit of a concept and it gets difficult when they say you are telling me x but so and so that I work with said y.” (Interview with “NN” (Estates and family law practitioner, Windsor, female, 14 years since call to the bar. Interviewed June 9, 2015).

Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 92; Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> (last accessed: 26 April 2017).

Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015).

Clark D. Cunningham, “Lawyer as Translator Representation as Text: Towards an Ethnography of Legal Discourse” (1992) 77 Cornell L. Rev. 1298, online: <h4p://scholarship.law.cornell.edu/clr/vol77/iss6/4> (last accessed: 26 April 2017); Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> .

Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) at 142.

Mather et. al. aptly explain the demands: “even if the legal issues appear relatively simple… complexity derives largely from the difficult and uncertain relationship between achievable legal outcomes and the needs, interests, and emotions of individuals going through divorces. Attorneys must translate the human problems they encounter into the categories recognized by the legal system. This task places lawyers in role of intermediaries between their clients and the law as clients’ personal situations are transformed into plausible legal arguments and outcomes.” (Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 164). See also Carroll Seron, The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys (Philadelphia, PA: Temple University Press 1996) at

Marc Galanter, “Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change” (1974) 9 Law & Society Review 59, online: <jan.ucc.nau.edu/~phelps/Galanter%201974.pdf> (last accessed: 26 April 2017). See also Competition & Markets Authority (UK), “Legal services market study: Final Report.” (London: 2016), online: <https://assets.publishing.service.gov.uk/media/5887374d40f0b6593700001a/legal-services-market-study-final-report.pdf> at 26.

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 98-100. See also notes 74 and 75, below, and accompanying text. Section 7.1, below, pertains to specialization and generalism.

Figure 1, above, southwest quadrant.

“Johnson” quoted in Jack Batten, Lawyers (Toronto: MacMillan, 1980) at 170-1.

Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> at 32; Herbert Jacob et al., Courts, Law, and Politics in Comparative Perspective (New Haven, CT: Yale University Press, 1996) at 57.

Competition & Markets Authority (UK), “Legal services market study: Final Report.” (London: 2016), online: <https://assets.publishing.service.gov.uk/media/5887374d40f0b6593700001a/legal-services-market-study-final-report.pdf> at 45. The Futures Report observes that clients are looking for “non-legal support as they go through the uncertainty, emotions, and complexities of a legal process… they want access, empathy, and personal contact with lawyers who can demonstrate a holistic understanding of the client’s circumstances and needs.” The Report goes on to note that “these desires may not outweigh the attraction of a new service provider who offers robust advice at a considerably lower price. Lawyers’ ability to extend empathy to their clients must necessarily be embedded in a competitive package.” (CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 20).

Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 102.

Section 5.4.3, below. The emotive dimensions of personal plight legal needs, and the value of having a professional ally to deal with them, are reasons why a personal plight lawyer would not necessarily be well-advised to represent him or herself even in a matter pertaining to her own speciality.

For example, three personal injury lawyers interviewed for this projct emphaized that recovering from the accident was often more important to their clients than maximizing the amount recovered from the insurance company (Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015); Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015); Interview with “UU” (Personal injury practitioner, Toronto, female, 4 years since call to the bar. Interviewed July 17, 2015)). See also Carroll Seron, The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys (Philadelphia, PA: Temple University Press 1996) at 107; Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 91; Centre for Innovative Justice, Affordable Justice (Melbourne: RMIT University, 2013) online: RMIT <mams.rmit.edu.au/qr7u4uejwols1.pdf> (last accessed: 26 April 2017) at 38.

Canadian Bar Association and Jordan Furlong, Do Law Differently: Futures for Young Lawyers (Ottawa: CBA, 2016) online: CBA Futures Initiative <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf> (last accessed: 26 April 2017) at 18.

Family lawyer JJ said: “I don’t think people really understand how to listen for the things that are maybe the softer aspects. Sometimes people’s interest isn’t about money. They’ve got a different goal or interest. Unless you are really attuned to what their priorities are, you can miss those cues.” (Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015)). With evidence that medical malpractice lawyers often ignore their clients’ interests in nonmonetary remedies, see Tamara Relis, Perceptions in litigation and mediation : lawyers, defendants, plaintiffs, and gendered parties (Cambridge ; New York: Cambridge University Press, 2009).

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015).

It would not be entirely accurate to label these as “litigation” practices. While litigation is a central strategy for personal plight firms, some cases are resolved without any resort to formal litigation: for example through alternative dispute resolution.

Termination-related employment law for employees and for owner-operated employers falls in the personal plight quadrant. Representation of larger employers falls in the southeast quadrant of Figure 1, above, and representation of employees and employers negotiating employment contracts is in the western hemisphere of Figure 1.

This is not an exhaustive list.

Regarding specialization and generalism, see section 7.1 below.

Richard E. Susskind, The End of Lawyers? : Rethinking the Nature of Legal Services (Oxford: Oxford University Press, 2008) at 224; Canadian Bar Association (CBA) Standing Committee on Access to Justice, “Underexplored Alternatives for the Middle Class.” (Ottawa: CBA, 2013), online: <http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/MidClassEng.pdf> at 8.; Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf> at 16.

Noel Semple, “Our Nostradamus (Review of recent books by Richard Susskind and Daniel Susskind)” (2016) 37 Windsor Rev. Legal & Soc. Issues 126, online: <http://www.noelsemple.ca/2016/05/our-nostradamus/> (last accessed: 26 April 2017).

“Axess Law,” <http://www.axesslaw.com> (last accessed: 26 April 2017); “Anderson Sinclair LLP,” <http://www.andsinc.com> (last accessed: 26 April 2017).

John P. Heinz et al., Urban Lawyers: The New Social Structure Of The Bar (Chicago: University of Chicago Press, 2005) at 37; Harry W. Arthurs, “Will the Law Society of Alberta Celebrate its Bicentenary?” (2008) 45 Alberta Law Review 15, online: <http://digitalcommons.osgoode.yorku.ca/scholarly_works/857/> (last accessed: 26 April 2017); Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 98-100; Section 7.1.

Ronit Dinovitzer, Law And Beyond: A National Study Of Canadian Law Graduates (Toronto: U, 2015) online: University of Toronto <http://individual.utoronto.ca/dinovitzer/images/LABReport.pdf> (last accessed: 26 April 2017) at 25. Specialization generally increases further over the course of a lawyer’s career.

Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) at 66-71.

Gillian K. Hadfield, “The Cost of Law: Promoting Access to Justice through the Corporate Practice of Law” (2014) 38 International Review of Law and Economics 43 at 58; Andrew Grech and Tahlia Gordon, Modern Law Firm Management: Should Non-Lawyer Ownership be Endorsed and Encouraged? (Sydney, Australia: Creative Consequences, 2015) online: Creative Consequences <http://www.researchgate.net/profile/Tahlia_Gordon/publication/276257026_Modern_Law_Firm_Management__Should_non-lawyer_ownership_of_law_firms_be_endorsed_and_encouraged/links/5553283408ae980ca606dc99.pdf> (last accessed: 26 April 2017) at 15; John O. McGinnis and Russell G. Pearce, “The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services” (2014) 82 Fordham Law Review 3041 at 3058.

Ilina Rejeva, “What Is NewLaw and How It Is Changing the Legal Industry Forever (LegalTrek, Apr 26, 2016 ),” <https://legaltrek.com/blog/2016/04/what-is-newlaw-and-how-it-is-changing-the-legal-industry-forever/> (last accessed: 26 April 2017).

CBA Legal Futures Initiative, Innovations in Legal Services: 14 Eye-Opening Cases (Ottawa: CBA, 2014) online: CBA <https://www.cba.org/CBA-Legal-Futures-Initiative/Reports/Innovations-in-Legal-Services-14-Eye-Opening-Cases> (last accessed: 26 April 2017); CBA Futures Initiative, 14 Case Studies in Canadian Legal Innovation (Ottawa: CBA, 2014) online: CBA <https://www.cba.org/CBAMediaLibrary/cba_na/SecurePDF/CBA%20Legal%20Futures%20PDFS/CaseStudiesEng.pdf> (last accessed: 26 April 2017); Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf>.

These ventures seek to nurture start-ups in the legal field. Ryerson Legal Information Zone, “About,” <http://www.legalinnovationzone.ca/about-us/> (last accessed: 26 April 2017); Mars Discovery District, “LegalX Cluster,” <https://www.marsdd.com/our-sectors/information-and-communications-technology/legalx-cluster/> (last accessed: 26 April 2017), Omar Ha-Redeye, “Cold, Hard Justice Lessons from the Fleet: Innovating from the bottom up” (2017) Windsor Yearbook of Access to Justice (forthcoming).

Section 2.1, above.

Federation of Law Societies of Canada, “Model Code of Professional Conduct,” <http://flsc.ca/national-initiatives/model-code-of-professional-conduct/> (last accessed: 26 April 2017), s. 3.1-1 (“Competence”).

Ibid., Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401.

Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>.

Alice Woolley, “Imperfect Duty: Lawyers’ Obligation to Foster Access to Justice” (2008) 45 Alberta Law Review 107; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 30-33.

Trevor C. W. Farrow, Civil Justice, Privatization, and Democracy (Toronto, Canada: University of Toronto Press, 2014); Alice Woolley and Trevor C. W. Farrow, “Addressing Access to Justice Through New Legal Service Providers: Opportunities and Challenges” (2016 ) 3 Texas A & M Law Review 549.

Andrew Pilliar, “Law and the Business of Justice: Access to Justice and the Profession/Business Divide” (2014) 11 Journal of Law & Equality 5 at 7.

Law Students’ Society of Ontario, Just or Bust? Results of the 2014 Survey of Ontario Law Students’ Tuition, Debt, & Student Financial Aid Experiences (Toronto: 2014) online: LSSO <http://lsso.ca/wp-content/uploads/2014/09/LSSO-Report-2014.pdf> (last accessed: 26 April 2017).

Michael Trebilcock, “The Price of Justice” in Farrow & Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, 2018).

Personal plight clients must compete with corporate clients for the services of legal professionals At least in the United States, the proportion of lawyers serving individual as opposed to corporate clients has declined significantly in recent decades: Jordan Furlong, “How Access-to-Justice Efforts Are Changing the Consumer Legal Market (Lawyerist.com, February 21^st, 2017),” <https://lawyerist.com/144695/access-justice-efforts-changing-consumer-legal-market/> (last accessed: 26 April 2017).

Malcolm Mercer, “So Many Lawyers, so Many Unmet Legal Needs (ABA Law Practice Magazine, July/August 2015)” (2015), online: <https://malcolmmercer.ca/2015/07/07/so-many-lawyers-so-many-unmet-legal-needs/> (last accessed: 26 April 2017).

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 92. Proposing a means-tested “Access to Justice Levy” on practicing lawyers to support legal aid, see Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 282-5.

Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 135.

Anna Lund and Andrew Pilliar, What Do Lawyers Do? Examining The Types Of Pro Bono, Low Bono And Voluntary Work Provided By British Columbia Lawyers (Vancouver: Law Foundation of British Columbia, 2014).

Michael Trebilcock, “Report of the Legal Aid Review.” (Toronto: (Ontario), 2008), online: <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/> at 115 et seq; William T. Hogan, “Re: Issues on the Future of Legal Services (Letter to The ABA Commission on the Future of Legal Services, December 20, 2014),” <https://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services.pdf> (last accessed: 26 April 2017) at 3; Criminal lawyer C2, interviewed for this project, said: “What we’ve tried to do over the years is try to focus on a private practice and becoming less dependent on Legal Aid… It has reached a point now where I consider that pro bono work. It is really just cost recovery. When you factor in all the costs of doing research and office space and everything like that, you’re lucky to be breaking even at the end of Legal Aid.” (Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016))

David Stager and H. W. Arthurs, Lawyers in Canada (Toronto: Published in association with Statistics Canada by University of Toronto Press, 1990) at 220. Giving an example of the potential for cross-subsidization, Ottawa Lawyer D2 told the author: “Everybody in the community asked us. They said ‘oh, you’re a feminist practice, we need to do our wills, we really want you to do them!’ If I was really smart or less stubborn, I’d be able to say, I’m having you in and you’re going to pay a little bit more for this service but it’s going to support work with community members that are dealing with issues that you believe in.”(Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016)). Regarding the similar concept of “social enterprise lawyering” (in which profits are given to another firm doing personal plight work, see Andrew Pilliar, “Exploring A Law Firm Business Model to Improve Access to Justice” (2015) 32 Windsor Yearbook of Access to Justice, online: <http://windsor.scholarsportal.info/ojs/leddy/index.php/WYAJ/article/view/4512> (last accessed: 26 April 2017) at 6-8.

Gail E Henderson, “Could Community Contribution Companies Improve Access To Justice?” (2016) 94 Canadian Bar Review, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=12%2f01%2f2016> (last accessed: 26 April 2017)

New Brunswick (Minister of Health and Community Services) . G. (J.), [1999] 3 S.C.R. 46.

Sujit Choudhry, Michael Trebilcock and James Wilson, “Growing Legal Aid Ontario into the Middle Class: A Proposal for Public Legal Expenses Insurance” in Michael Trebilcock, Anthony Duggan & Lorne Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012): “increasing public funding for legal aid on the scale required to serve the civil justice needs of the middle class, on a sustainable basis, is both an economic and political non-starter.” See also Noel Semple, “Canada: Depending on the Kindness of Strangers— Access to Civil Justice” (2013) 16 Legal Ethics 373.

Michael Trebilcock, “The Price of Justice” in Farrow & Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, 2018). See also David Dyzenhaus, “Normative Justifications for the Provision of Legal Aid,” background study for the Ontario Legal Aid Task Force Report, 1996; Michael Trebilcock, Report of Legal Aid Review, 2008 (Ontario Ministry of the Attorney-General, pp. 61-70.

Trebilcock, ibid.. However, if civil personal plight firms are able to devise more affordable ways to help low and middle income people – perhaps by deploying the the innovations proposed in this book – then legal aid dollars will “go further.” This might make funding legal aid might become a more attractive priority for governments.

Trebilcock, ibid.

“Ontario Small Claims Wizard,” <http://smallclaimswizard.com> (last accessed: 26 April 2017).

WeVorce, “WeVorce,” <https://www.wevorce.com/> (last accessed: 26 April 2017); “MySupportCalculator,” ; “Kinso,” <http://www.kinso.ca> (last accessed: 26 April 2017). See also Chris Bentley et al., Legal Innovation Zone’s Family Reform Community Collaboration (Toronto: Ryerson University, 2016) online: Ryerson University <http://www.legalinnovationzone.ca/wp-content/uploads/2015/10/Ryerson-LIZ-Family-Reform-Report.pdf> (last accessed: 26 April 2017), at Appendix 2.

For a sophisticated example from overseas, see https://unfairdismissal.slatergordon.com.au/ . This and similar initiatives are discussed at length in Section 6.4, below.

As the CBA Futures report argues, “technology will render legal information and tools more accessible, and clients will gravitate to them as long as the providers offer assurances of quality.” (CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 14).

Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> .

“The World’s First Robot Lawyer,” <http://DoNotPay.co.uk> (last accessed: 26 April 2017); Lisa Needham, “The Robot Lawyer That Fights Parking Tickets Is Quite Good at It (June 30^th, 2016),” <https://lawyerist.com/119847/robot-lawyer-fights-parking-tickets-good-at-it/> (last accessed: 26 April 2017).

Mary E. Vandenack, “Venture Capital Investments in Legal Services (ABA Law Practice Magazine, Vol. 39, No. 4),” <http://www.americanbar.org/publications/law_practice_magazine/2013/july-august/venture-capital-investments-in-legal-services.html> (last accessed: 26 April 2017).

Section 2.3.2, above.

Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf> at 11-12; Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) ; John O. McGinnis and Russell G. Pearce, “The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services,” (2014) 82 Fordham Law Review 3041; Simon Fodden, Voices of Change: Canadian Social Media and Other Writings on the Future of Legal Practice (Ottawa: CBA, 2013) online: CBA <http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/Voices-Paper-Summary-Linked-eng.pdf> (last accessed: 26 April 2017) at 13-14.

Noel Semple, “Our Nostradamus (Review of recent books by Richard Susskind and Daniel Susskind),” (2016) 37 Windsor Rev. Legal & Soc. Issues 126, online: <http://www.noelsemple.ca/2016/05/our-nostradamus/> .

Section 2.3, above.

Sam Glover, “Access to Justice is a Lot More Complicated than Making Lawyers Affordable (Lawyerist, July 12^th, 2016),” <https://lawyerist.com/121014/access-justice-lot-complicated-making-lawyers-affordable/?platform=hootsuite> (last accessed: 26 April 2017); Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants.” (Kingsville, Ontario: Process, 2013), online: <http://representingyourselfcanada.com/2014/05/05/research-report/> at 83, 121.

Criminal defence lawyer Sean Robichaud puts this point well: “Lawyers are seen to trade in information and knowledge in today’s world. This is a commodity with very high supply and therefore little value. However, what people often neglect to understand is that knowing the correct legal answer is a very small component to successful representation.” (Sean Robichaud, “Access to justice: a need for lawyers, not self-representation or legal information (Tuesday, November 4, 2014),” <https://robichaudlaw.ca/unrepresented-court-access-to-justice/> (last accessed: 26 April 2017)). Regarding the distinct “value-add” offered by trained legal professionals, see also CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 19-20.

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 36; R. Roy McMurtry et al., Listening to Ontarians: Report of the Ontario Civil Legal Needs Project (Toronto: Ontario Civil Legal Needs Project Steering Committee, 2010) online: Law Society of Upper Canada <http://www.lsuc.on.ca/media/may3110_oclnreport_final.pdf> (last accessed: 26 April 2017); Michael Saini, Rachel Birnbaum and Nicholas Bala, “Access to Justice in Ontario’s Family Courts: The Parents’ Perspective” (2016) Windsor Rev. Legal & Soc. Issues ; Ipsos Reid, Albertans Satisfied With Their Lawyers (Public Release Date: May 18, 2010) 2010)https://www.ipsos-na.com/news-polls/pressrelease.aspx?id=4788> (last accessed: 26 April 2017); Rachel Birnbaum, Nicholas Bala and Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers & Litigants,” (2013) 91 Canadian Bar Review 67 at 77.

That being said, there is a pattern of client dissatisfaction regarding communication in personal plight work. See Chapter 5 (“Division of Labour”), below.

Trevor C.W. Farrow et al., “Everyday Legal Problems and the Cost of Justice in Canada: Overview Report.” (Toronto: CFCJ, 2016), online: <http://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf> at 7; Canadian Forum on Civil Justice, Everyday Legal Problems And The Cost Of Justice In Canada: Survey (Toronto: CFCJ, 2016) online: CFCJ <http://www.cfcj-fcjc.org/sites/default/files//Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Survey.pdf> (last accessed: 26 April 2017) at 2.

The Law Society of Upper Canada, “Complaints and Investigations,” <http://www.annualreport.lsuc.on.ca/2014/en/operational-trends/complaints.html> (last accessed: 26 April 2017)

Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> . In the United States, personal client hemisphere lawyers experienced a precipitous drop in income during the 1980s, as their numbers increased much more quickly than demand: Jerry Van Hoy, “The Practice Dynamics of Solo and Small Firm Lawyers” (1997) 31 Law & Soc’y Rev. 377 at 7. However in the personal client hemisphere services prices, and presumably incomes, have remained significantly higher in Canada than in the United States: Noel Semple, “The Cost of Seeking Civil Justice in Canada,” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016> .

“The question of how rights can be asserted is bleeding more and more into people’s lives and I think that until we in small practice environments figure out how to be able to connect with those needs, I think we are missing opportunities but also really doing a disservice to community members because they just don’t have a way into the system.” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016)). See Section 2.1, above.

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 36; Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants.” (Kingsville, Ontario: Process, 2013), online: <http://representingyourselfcanada.com/2014/05/05/research-report/> at 121; Rachel Birnbaum, Nicholas Bala and Lorne Bertrand, “The Rise of Self-Representation in Canada’s Family Courts: The Complex Picture Revealed in Surveys of Judges, Lawyers & Litigants,” (2013) 91 Canadian Bar Review 67; Paul Vayda, “Chipping away at Cost Barriers: A Comment on the Supreme Court of Canada’s Trial Lawyers Decision” (2015) 36 Windsor Rev. Legal & Soc. Issues 207 at 208; Canadian Bar Association (CBA) Standing Committee on Access to Justice, “Underexplored Alternatives for the Middle Class.” (Ottawa: CBA, 2013), online: <http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/MidClassEng.pdf> at 6.

Regarding this economic capture critique of lawyers’ self-regulation, see Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 116-119.

“An ongoing joke we shared with our colleagues was that we hoped we’d never need to hire a lawyer, because it would be so unaffordable.” Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf> Allan C. Hutchinson, “Putting up a Defence: Sex, Murder, and Videotapes” in Alice Woolley & Adam Dodek eds., In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession (Vancouver: University of British Columbia Press, 2016).

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015) “a rude awakening that led us to go as self-reps because it was so expensive, even just the back and forth correspondence between counsel, how it racks up.”

These untapped markets are sizeable. For example, a Ryerson Legal Innovation Zone report estimated that the untapped market of Ontario’s self-represented litigants could be worth $40-$200 million per year to law firms able to create viable service packages for these people: Chris Bentley et al., “Legal Innovation Zone’s Family Reform Community Collaboration.” (Toronto: University, 2016), online: <http://www.legalinnovationzone.ca/wp-content/uploads/2015/10/Ryerson-LIZ-Family-Reform-Report.pdf> at 10.

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015)

“Eighty-five percent of all the legal work done in Canada is still billed hourly, according to Richard Stock, a partner at Catalyst Consulting in Toronto.” (Ann Macaulay, “The Billable Hour—Here to Stay? (Canadian Bar Association PracticeLink March 12, 2014),” <http://www.cba.org/Publications-Resources/CBA-Practice-Link/solo/2014/The-Billable-Hour—Here-to-Stay> (last accessed: 26 April 2017)) No estimate of its prevalence in personal plight matters specifically is available.

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015); Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015) “I do try and give them at least a rough ballpark on what a separation agreement or a court proceeding without complications might look like. No one came back to complain about that. They know it’s a ballpark.”

Michael McKiernan, “The Going Rate: The 2015 Canadian Lawyer Legal Fees survey (Canadian Lawyer, June 2015),” <http://www.canadianlawyermag.com/images/stories/pdfs/Surveys/2015/CL_June_15_GoingRate.pdf> (last accessed: 26 April 2017).

$26,591 was the average fee for a 5-day trial in a family law matter. (ibid.).

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015) “they’re not surprised about hourly rates. What they’re surprised about is we’re not more easily able to estimate the cost of a litigation.” Conversely, “if a quote was given and a person was told that this was the pricing within 10% I am sure they would be very happy.” See also CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 20.

Chris Bentley et al., “Legal Innovation Zone’s Family Reform Community Collaboration.” (Toronto: University, 2016), online: <http://www.legalinnovationzone.ca/wp-content/uploads/2015/10/Ryerson-LIZ-Family-Reform-Report.pdf>; CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 20; CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 37; Josh King, “Price Transparency and Legal Services (Video, ReInvent Law Channel),” <https://vimeo.com/98606909> (last accessed: 26 April 2017).

Regarding price uncertainty and corporate law firm clients, see Deborah Hensler et al., “Reconstructing Big Law (Book proposal)” (2016) ; Alice Woolley, “Evaluating value: a historical case study of the capacity of alternative billing methods to reform unethical hourly billing” (2005) 12 International Journal of the Legal Profession 339 at 354.

These are (i) uncontested personal business matters; (ii) corporate client non-contested matters, and (iii) corporate client litigation/ADR matters. See Figure 1 in Chapter 1, above. Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015).

This is due to lower labour requirement risk: see section 1.3, below. According to the Affordable Justice report, Australian firms offer fee certainty most frequently “when a task has been repeated so often that both sides are comfortable with what the cost should be. Certainly transactional work, such as real estate, wills and estates and intellectual property lend themselves more easily to fixed-fee billing, since the outcome is fairly predictable and it’s easier to estimate the amount of time each file will take. Files that involve a lot of repetition, such as drafting a patent application, are the most easily automated using form generation, which cuts down on time spent.” (Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 17.)

Walmart, for example, faces hundreds or thousands of personal injury lawsuits each year; the variable litigation costs for each suit do not prevent Walmart from having a relatively predictable annual litigation budget.

“I think in the right case flat fee wouldn’t be bad at all.” (Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015))

“Fixed fee only for really simple things,” and uncontested e.g. uncontested divorce or legal opinion letter re foreign divorce. (Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015)) “NN” does flat rate for family (separation and cohab) contracts. (Interview with “NN” (Estates and family law practitioner, Windsor, female, 14 years since call to the bar. Interviewed June 9, 2015)). E2 reports: “I do some flat fee stuff. Not a lot of it. Stuff I’m highly experienced in. I know what time it takes. Some things are simple. Uncontested divorce in front of a judge 1500 bucks. Because I know exactly the kind of work it takes to get in and out of it. And it’s very predictable. Settlement agreements. Some of them vary…but largely, 2000 dollars for a settlement agreement. Litigation’s tough.” (Robert Harvie, “Self Represented Litigants – Lawyer Delivery Lagging? (Huckvale LLP blog, January 20, 2016),” <https://huckvale.ca/family-law/self-represented-litigants-lawyer-delivery-lagging/> (last accessed: 26 April 2017)). “A2” also reported using block rates on visa applications: “would anticipate that that would continue because if you are doing a visa application it is fairly predictable in terms of time to complete all the paperwork.” (Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015))

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015) “It’s hard for a client to accept. It’s really hard for us to do. It’s hard to estimate to cost of litigation. Because of variability.”

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015) “my biggest concern was litigation because you don’t know in litigation. “

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015) “Many civil litigation lawyers discover that it is challenging to estimate the final bill because of the unpredictable nature of litigation.”

William Bishop, “Regulating the Market for Legal Services in England: Enforced Separation of Function and Restrictions on Forms of Enterprise” (1989) 52 Modern Law Review 326 at 344–5; John S. Dzienkowski and Robert J. Peroni, “Multidisciplinary Practice and the American Legal Profession: A Market Approach To Regulating The Delivery Of Legal Services In The Twenty-First Century” (2000) 69 Fordham Law Review 83. For the potential of firms to move toward “commodified” services, see section 6.4.3, below.

Ray Worthy Campbell, “Rethinking Regulation And Innovation In The U.S. Legal Services Market” (2012) 9 New York University Journal Of Law & Business 1 at 61

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 165-6.

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “there is sometimes more disclosure that becomes available. Further witnesses can come forward. More investigation needs to be done.” See also Michael Trebilcock, “The Price of Justice” in Farrow & Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, 2018).

“Of course your only [risk] is if you mis-assess the file or you have counsel on the other side that’s just going to dig their heels in and 3 years later you’re still working really hard on a file and you know you spent more time on what you’re ultimately going to garner on it.” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016).

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “I would say the unpredictability comes more from the Crown because they hold the discretion to withdraw or not. Whether things proceed or get difficult really is up to the Crown. We try very hard to get as much material as we can to persuade the Crown to withdraw. Sometimes it is a back and forth from them. Maybe, maybe not. Those sorts of issues typically are a product of the Crown and whether things get prolonged.”

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015) it’s the client interaction that’s the most time-consuming part of the practice. See also Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 95

Federation of Law Societies of Canada, “Model Code of Professional Conduct,” <http://flsc.ca/national-initiatives/model-code-of-professional-conduct/>, s. 3.1-1(d).

Ray Worthy Campbell, “Rethinking Regulation And Innovation In The U.S. Legal Services Market,” (2012) 9 New York University Journal Of Law & Business 1

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015)

Sean Robichaud, “Access to justice: a need for lawyers, not self-representation or legal information (Tuesday, November 4, 2014),” <https://robichaudlaw.ca/unrepresented-court-access-to-justice/>; and see also these comments from “SS:” “Semple: for those reasons…is it possible to estimate the value of the settlement of the time? SS: It’s impossible. Impossible. It’s a question we get every time. “What’s my case worth?”. The two questions I can’t answer at the beginning: how long is this going to take, and how much and I going to get? And that’s the same 2 questions I get every time. And I tell people honestly I have no way of knowing.” (Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015)).

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015)

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 13.

Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015) “The difference of small claims court is you don’t have motions and other things that go in between. In family court, you can get all kinds of motions. Somebody wants production or somebody wants support or somebody is not being reasonable or you need to bring a motion to get support.”

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015)

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015) “I grossly under billed or undercharged my first 4-5 clients. If it was a new thing I was doing I didn’t know how long it would take. I did that enough times to change and develop. I feel like I kind of gotten good at small claims, tribunal stuff in terms of predicting fees and now I am doing a bit more Superior Court work stuff and I want to get good at knowing how to block fees there. That’s challenging because there are so many more steps in the procedure – discoveries and everything, motions that pop up. That’s much more challenging. It’s just going to come down to experience. The more you do it, the more you can tell the client here’s what I suspect will happen, here’s what could happen both positive and negative.”

“Semple: What creates that extra complexity that extra time requirement?

NN: Typically an unrepresented person on the other side. That will generally drive the legal fees up because there is no reasonable responses coming.

Semple: So when there is counsel on the other side you can generally count?

NN: Yes because they are getting advice and everybody knows the perimeters are here. We are not asking for something out there and if everyone gets there quickly there is not much back and forth. I stick within my estimate because of the usual transaction. If you’re not getting advice on the other side than it is a little more difficult to persuade someone” (Interview with “NN” (Estates and family law practitioner, Windsor, female, 14 years since call to the bar. Interviewed June 9, 2015)).

“Usually when you meet someone you can tell if it will be someone who goes over the usual amount of time by their personality. This person is going to require more attention than others and price accordingly.

Semple: What tells you that in the client meeting?

NN: Less business thoughts as opposed to more personal. Usually they would have contacted our office multiple times before the initial consult. You know they are going to be more time intense and you may need to adjust your estimate for that reason.” ((ibid.))

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015) “I could see doing a flat rate for something like pleadings where it is up to me to get the information and then process it into your documents. That I am pretty comfortable doing and likely can anticipate it. A motion might be really out there because some are pretty streamlined and then depending whose on the other side… I used to have a couple counsel in town who would affidavit you to death. It would be 100 paragraphs and 98 of it was crap, but you have to somehow respond to the crap or you leave your client exposed. You can all of a sudden rack up a huge bill even for a motion. Those ones I’d be a little more concerned about.”

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016)

Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015).

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015)

Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015)

Section 3, below.

Flatlaw, “Litigation,” <https://www.flatlaw.ca/flatrate/All/Litigation/All> (last accessed: 26 April 2017). Many are for a discrete task within a personal plight file (e.g. writing a demand letter

According to Ottawa lawyer “D2,” “I really do see the human rights complain process as being conducive to flat fees because you can say there can be a flat fee up to mediation. Here’s everything I can wrap into this up to mediation. And mediation is the point which you either administer another kind of flat fee or you negotiate another kind of agreement with the client. Whereas in a civil litigation file, there’s so many uncertainties….” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016)).

Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015)

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “Semple: Is this type of approach very widespread in the criminal bar?

C2: The block fee, very much so. Those who have private practices, very few operate within the hourly fee as I understand it. Whether it is a bail hearing, a trial, the only people that do are those that essentially operate with unlimited retainers. People that are extremely wealthy go to any lawyer of their choice. Another lawyer will do a good job, but if I had an unlimited retainer I will hire another associate. You guys get plugging away at it, that’s your job for the year. We will send the client a $75,000 bill at the end of the year and do an awesome job”

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015).

Figure 4, below, and accompanying text.

Section 3.6, below.

Lonny Balbi, “Flat-fee billing: replacing time with value (The Lawyers Weekly, July 03 2009),” <http://www.lawyersweekly.ca/articles/954>

Notes 135 to 137, below. See also Legal Services Consumer Panel (UK), “Opening up data in legal services” (2016), online: <http://www.legalservicesconsumerpanel.org.uk/publications/research_and_reports/documents/OpenDatainLegalServicesFinal.pdf> (last accessed: 26 April 2017) at 22.

Ray Worthy Campbell, “Rethinking Regulation And Innovation In The U.S. Legal Services Market,” (2012) 9 New York University Journal Of Law & Business 1 at 59 : “There are two ways to look at alternative and flat fee pricing: flat and alternative fees simply shift the risk for runaway engagements to the law firm, or they require law firms to redesign their business model and processes for delivering services.”

Susskind: “hourly billing is an institutionalized disincentive to efficiency. It rewards lawyers who take longer to complete tasks than their more organized colleagues, and it penalizes legal advisers who operate swiftly and efficiently.”

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015);

“The tyranny of the billable hour’ has also long been acknowledged, criticised by an increasing number within and outside the profession as discouraging efficiency and collaboration; encouraging procrastination and mediocrity; preventing any concerted approaches; and demoralising legal practitioners. “”when layers are remunerated by hourly rates, we just encourage inefficiency.” (Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 11)

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015) “The hourly model is not an incentive to being resourceful. Just human nature.”

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015) “NS: A perverse incentive created by billing? II: Of course. NS: Does that explain why big firms take longer – 3 years as opposed to 6…? II: Right.

Ibid. “I remember I had a conversation with a senior lawyer early on and what happens is in large law firms across the board I understand is that as a junior lawyer with a new file, you have to make sure you review rules of civil procedure to make sure timelines are accurate. You have to revisit the rules and practice direction to make sure that whatever the rules need to be complied and what not are streamlined. I said I think it is rather inefficient because why can’t we dedicate one person in the firm whose job is to keep on top of all the rules and you basically contact that person and say what is the latest in this and is available to everybody as a resource. And that person turns around and says well how do you make money if we do that? You have to have a business and as long as the client is paying for it then that’s fine. I think there is definitely some inefficiencies there?”

A more ambitious vision, also incentivized by price-certain models, is the creation of systems and products which provide legal services to clients with little or no lawyer labour : Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016)

1. Above

Of course, each of those models involves its own perverse incentives as well: under-service (shirking) in the case of flat fees and, potentially, premature settlement in the case of contingency fees.

Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015) “We’re not billing by the hour. We have every reason to be as efficient as possible and that our system is designed to keep our clients informed, move the case ahead as quickly as reasonably as possible without compromising, without settling too quickly…”

Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015).

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “You don’t need to do legal research on particular issues or sub-issues should they happen to arise, you just hope maybe if we tweak this, what if they got all these letters? You find ways to approach the Crown to get the charge withdrawn rather than have 10 days of litigation. For the access to justice point, the incentive too to a lawyer is to try and get a favourable result for the client within the budget presented. “

Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016).

Section 1.3.2, above.

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015) I truly believe in the block fees. I think lawyers that aren’t doing this are going to find themselves not competitive… I think that any smaller firm and I would say the majority of lawyers in this context to be competitive you have to think about different ways to bill and charge your client. I don’t want to talk about it narrowly. I’d rather talk about it in the context of building a relationship with your client. I think lawyers need to think differently about building relationships with clients. Ultimately that’s what it comes down to. Price is very important, but it’s not as sensitive in the context of a good relationship with the client.”

lawyers recognizing that avoiding price surprise is the key to avoiding disputes: Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015); Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015); Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015); (Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015)?)

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015) “since each bill is to some extent a surprise (and usually more than expected) this creates a lot of anxiety for clients.”

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015)

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015)

B2 added, “did I talk to my lawyer about how unhappy I was? No, I don’t want to take time and be charged $400 an hour to tell him I’m really kind of angry and unhappy because I don’t like being charged this much?” (ibid.)

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015) “NS: Do you have the sense that some lawyers may be ragging the puck on the basis of time-based compensation?  JJ: Yeah to be perfectly blunt. Yeah.”

see the Piper memo – bill the hell out of this ; Alice Woolley, “Time for Change: Unethical Hourly Billing in the Canadian Profession and What Should be Done About It” (2004) 83 Can. Bar Rev. 859 at 864; Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015): “in my practice I know what an appropriate settlement is very quickly and the defence lawyer knows what an appropriate settlement is. So the question is if we both know fairly in a range what is an appropriate [settlement] why can’t we just pick up the phone and settle it? I won’t make money and he won’t make money. We aren’t making money if we settle off the bat that quickly. There is an inherently component of your own personal interest involved. That’s one, the personal part”

For example, the first 40 hours of work gathering evidence and drafting pleadings in a plaintiff’s wrongful dismissal case might produce a settlement offer of $10,000 from the respondent. The plaintiff’s firm’s next 10 hours of work are not wasted: they make the case more persuasive, increasing the defendant’s fear of an adverse outcome and increasing the defendant’s settlement offer to $12,000. However, if those additional 10 hours were billed to the client at $400 each, then the client has been over-served insofar as their cost to the client exceeded their benefit to the client. “When lawyer performance is based on how much time is spent, inevitably there will be a temptation to spend as much time as possible on any given task.”(Spark LLP, “What’s Wrong With The Billable Hour?,” <http://spark.law/whats-wrong-with-the-billable-hour/> (last accessed: 26 April 2017)). Similar views were offered by lawyers GG and C2 (Interview with “GG” (Family law and poverty law practitioner, Nanaimo, female, 32 years since call to bar. Interviewed May 11, 2015); Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016)) See also Alice Woolley, “Evaluating value: a historical case study of the capacity of alternative billing methods to reform unethical hourly billing,” (2005) 12 International Journal of the Legal Profession 339 at 340; Ann Macaulay, “The Billable Hour—Here to Stay? (Canadian Bar Association PracticeLink March 12, 2014),” <http://www.cba.org/Publications-Resources/CBA-Practice-Link/solo/2014/The-Billable-Hour—Here-to-Stay>; Australian Government Productivity Commission, “Access to Justice Arrangements: Inquiry Report.” (Canberra: ACPC, 2014), online: <http://www.pc.gov.au/inquiries/completed/access-justice/report> at 195.

Sean Robichaud, “What does it cost to hire a lawyer? The cost of liberty is not as expensive as you may think. (Dec 4, 2016),” <https://robichaudlaw.ca/the-cost-of-liberty-lawyers-fees-in-criminal-law/> (last accessed: 26 April 2017).

Allan C. Hutchinson, A Study of the Costs of Legal Services in Personal Injury Litigation in Ontario 2017)https://www.scribd.com/document/336923555/Hutchinson-Report> (last accessed: 26 April 2017) at 5-6; citing Richard A. Posner, The Economics of Justice (Cambridge, Mass.: Harvard University Press, 1981).

Barreau du Québec, La tarification horaire à l’heure de la réflexion (Quebec: BDQ, 2016) online: BDQ <http://www.barreau.qc.ca/pdf/publications/2016-rapport-tarification.pdf> (last accessed: 26 April 2017) at 16. See also Lonny Balbi, “Flat-fee billing: replacing time with value (The Lawyers Weekly, July 03 2009),” <http://www.lawyersweekly.ca/articles/954>: “The value equation to the customer is the most important aspect in pricing. The cost to produce the good or service is not important to the customer. Focus on the customer’s needs, wants and values in order to determine an appropriate price.”

The relative positions of the options are inexact; different options will affect accessibility and risk in different ways depending on the practice context.

Alice Woolley, “Evaluating value: a historical case study of the capacity of alternative billing methods to reform unethical hourly billing,” (2005) 12 International Journal of the Legal Profession 339 344: “For work that was not covered by the tariff the dominant basis for setting fees was the lawyer’s assessment of the value which he had provided to the client. In setting his account the lawyer would consider factors such as: the work which he had done on the client’s matter (which he would generally keep a loose record of in the file or in a daily ledger); the outcome for the client; the financial circumstances of the client; the market value of the services in question; and any other factors which he con- sidered relevant in the circumstances to determine the amount of the client’s fee.”

Such factors are relevant in the “fair and reasonable” test applied to lawyers’ fees by legal services regulators. See e.g. Federation of Law Societies of Canada, “Model Code of Professional Conduct,” <http://flsc.ca/national-initiatives/model-code-of-professional-conduct/>, R. 3.6-1, Commentary [1] and analagous provisions in the respective provincial Law Societies’ Codes of Conduct. In the long-term firm-client relationships characteristic of the corporate practice hemisphere, discretion arguably a larger legitimate place in billing arrangements. If the firm is strongly motivated to keep the client happy, that motivation constrains the abuse of discretion in billing. (Likewise, the long-term client has invested in the relationship with the firm and has an incentive to avoid unnecessary challenges to the bill). However, personal plight lawyer-client relationships tend to be one-shot. See Chapter 1, above. “Value will depend on the effectiveness, efficiency, urgency, complexity and predictability of the work.” (Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 18)

See also Jordan Furlong, “The new price wars,” <https://www.law21.ca/2011/02/the-new-price-wars> (last accessed: 26 April 2017) re pricing like an airline.

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015).

Alice Woolley, “Evaluating value: a historical case study of the capacity of alternative billing methods to reform unethical hourly billing,” (2005) 12 International Journal of the Legal Profession 339 at 347: “With respect to value billing, the main issue was that value billing left the client dependent on the lawyer’s subjective judgment as to the value which the lawyer had provided.”

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) ; Barbara A. Stark, “Value Billing-Matrimonial Attorney’s Fees in the 90’s” (1991) 7 J. Am. Acad. Matrimonial Law. 79

Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015) “NS: So contingency for personal injury and time-based billing for family law. You mentioned also time-based for small claims, but it would be adjusted based on income?

KK: That’s right. I would give them a set price. If somebody comes in I say up to this point Ill charge you this much. If it goes to trial I charge so much per day per trial, but it might be less than what my hourly rate would normally be.”

Chicago family law firm Endzel Law LLC offers “monthly flat fees” on certain cases: “If your case is a good fit for a monthly flat fee, we will propose a scope of representation and a small flat fee that is paid for each month we work on your case. This option is excellent for complex cases that may have several issues to resolve over a longer period of time. For example, a contested custody case or a divorce with substantial financial assets involved. This option gives us the ability to do the work required to successfully resolve more complex matters, while still offering you certainty and transparency in your legal fees. Monthly flat fees range from $150 – $550 and are best for cases that are expected to last longer than 6 months.” (http://endzellawllc.com/services/)

The risk that the client will not pay the bill promptly and in full remains. This is topic of Section 4.2, below.

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015)

E.g. Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015); Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015); Interview with “UU” (Personal injury practitioner, Toronto, female, 4 years since call to the bar. Interviewed July 17, 2015); Interview with “VV” (Personal injury practitioner, Toronto, female, 3 years since call to the bar. Interviewed July 17, 2015); Interview with “WW” (Personal injury practitioner, Toronto, female, 13 years since call to the bar. Interviewed July 20, 2015); Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015); Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016). See also M. Steven Rastin and Kristy Fleming, “Considerations Under Contingency Fees: What to Take on and When (Presentation to Ontario Trial Lawyers Association)” (2012), online: <http://www.personalinjurylawyerservice.ca/articles-contingency-fees> (last accessed: 26 April 2017): “if you don’t offer a contingency arrangement to a potential client, she will walk out the door and hire the lawyer down the street that is all too willing to offer it.”

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015) “90% of them will choose the fixed price. We will give clients the choice, we will say you can do it on a fixed price or an hourly rate… 90% of clients will choose the seven-and-a-half, because the thing they value is certainty, that’s what’s important to them.”

Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015) RR offers time-based and contingency, “Probably 90 percent of my clientele go contingency fee because they recognize there’s risk associated with civil litigation.”

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015).

Section 3.1, above.

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015) “My practice is a combination of these models. At any given time I probably have 50% hourly fees. When I say hourly it is hourly, but I tell them by the time at mediation the cost will not be exceeding this amount. They know that this is going to be less than that. If my time goes above that I discount that.”

Sam Glover, “Why Are Lawyers So Expensive? I’ll Tell You Why (Lawyerist, February 12^th, 2016)” (2014), online: <https://lawyerist.com/77964/lawyers-expensive-ill-tell/> (last accessed: 26 April 2017)

Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015) “I don’t need to because people don’t really demand a flat fee… there have been some because… I had one client who asked for a cap, and there was another client who I offered a soft cap to. I think a soft cap works for people who are hesitant, because they’ll say ‘ well, I’m ok with you being paid, I don’t mind, I know you’re doing a service for me, but how do I know you’re not going to spend 100 hours, or 200 hours, or unlimited hours on my file? So in those files, I think there’s one or two, I said ‘look, probably the top end of my billings will be X amount, but if I go over that I’m ok to charge $50 an hour, or something like that. So… I’m going to get something back, but it’s not really going to make or break the bank for them.”

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015) “NS: Would you use flat fees for a contested matter? How is that structured? II: All the time. Not structured up to a stage. SO pleadings and I know the case so I understand the pleading will take this many hours. For this defence or claim I will charge this much. For affidavit or documents, mediation I charge this much and if there is a contested motion I expect these could be the contested motion issues. It is essentially for substantive work. “

QQ Interview: “For example, there is a lady who requested this morning for me to put together an application record for her. She doesn’t want to be represented in court, but she needs an application record, so I am working in my mind what I think this is going to cost… it allows her some certainty. She’s not surprised with bills every month.”

Mick Hassell, “Self Service Litigation Garage,” <http://www.litigationgarage.ca/Litigation_Garage/Self_Service_Litigation_Garage.html> (last accessed: 26 April 2017).

Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015).

KK: That’s right. I would give them a set price. If somebody comes in I say up to this point I’ll charge you this much. If it goes to trial I charge so much per day per trial, but it might be less than what my hourly rate would normally be.  ”

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016)

Ibid. “Then they say do you think it will go to trial and we say I don’t know. I can say generally speaking this is not inside the range of cases that will get withdrawn. It’s not likely, but from what you are telling me right now it does seem like this is leaning more towards, but I can’t be sure. They say if it goes to trial how many days do you think it should take? It should only take a day but sometimes as a result of scheduling or witness complications it can take 2-3 or more. Then it starts to get a little nerve-wracking for clients. If it is causing a concern for them I often say I will cap it out at no more than 2 days, even if it goes 3 or 4. Based on my experience I know that these things can only go so long”

Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 103.

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016)

Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015) “NS: Did you ever do any formal flat rate retainers?

PP: Yeah divorces especially if I had done the separation agreement or in my early days I did some wills. I would just do a flat rate. Then I may not quote a flat rate but what I said about a motion in my mind was worth $2500 so while I wouldn’t quote it as a flat rate I would always bill it as a flat rate.”

Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015) A2 “NS: In terms of the non-legally aided clients, is your fee structure on a time basis or a flat rate?

A2: Mostly on a flat rate. For me so far most of the matters I have been retained on privately have been relatively small like domestic assaults or impaired driving cases. It’s easy to give a block fee on that and figure out what it’s going to cost. I haven’t had a criminal file yet where I billed on an hourly basis but I like block fees because I think it is predictable for the client”

“NS: Are block fees standard among the criminal defence bar here?

A2: I would say yes for the relatively simple matters.”

Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) at 58-9.

Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015)

Flatlaw, “Litigation,” <https://www.flatlaw.ca/flatrate/All/Litigation/All>; The Family Law Coach, “Self-rep Providers Directory,” <http://thefamilylawcoach.com/self-rep-service-providers-directory/> (last accessed: 26 April 2017).

Flatlaw, ibid.

For example, the FLSC Model Code and Ontario’s Law Society of Upper Canada state that the firm must “”strictly adher[e] to the advertised fee in every applicable case.” (Federation of Law Societies of Canada, “Model Code of Professional Conduct,” <http://flsc.ca/national-initiatives/model-code-of-professional-conduct/> at R. 4.2-2; Law Society of Upper Canada, Rules of Professional Conduct (Ontario) (Toronto: LSUC, 2014) online: LSUC <http://www.lsuc.on.ca/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=10272> (last accessed: 26 April 2017) at R. 4.2-2.)

It can also foster salutary price competition between firms: see Chapter 4 (“Online Marketplaces”), below.

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015): Regarding flat fees with a cap on the firm’s commitment, TT said “I’ve thought about trying to do that because that’s hard again. Because what do I do? Do I put a cap on pages and say $500 a page? To me, intuitively it seems like a really hard thing to achieve and I haven’t been able to figure out what the right balancing act is. Because if you take a custody in access dispute, that may be a 5 page case conference brief is much simpler to draft than a complex financial case that’s 5 pages. If there’s complex transactions, you may have to spend a lot of time to understand the organization of that company and to explain it. So there’s, again, different nuances there that to me has always made me feel like I don’t know how to do it. “

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “Any domestic is typically going to be what I just said. Your standard on the other hand if the domestic is such that assaulted you, ended up in the hospital, broke her leg, and there is also a complaint of sexual improprieties in the past, fees are different. I can say I can anticipate medical records, potentially have to call an expert, so then we try and structure it around that.”

Ibid.

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015)

Ibid.

Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016): “with our family law services it is flat fee but because there is some variation, what we’ve done to workflow the process is we’ve made our own internal chart and therefore we know what the cost is. We can’t put it down neatly on a menu so we provide it at the point before they’ve chosen to retain us.”

Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015)

Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015)

Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) at 58-59.

Interview with “NN” (Estates and family law practitioner, Windsor, female, 14 years since call to the bar. Interviewed June 9, 2015)

Ibid.

Section 3.1, above.

Herbert M. Kritzer, Risks, reputations, and rewards : contingency fee legal practice in the United States (Stanford, Calif.: Stanford University Press, 2004) at 9.

Litigation risk is the legal claimant’s risk that the claim will produce nothing or produce less than the claimed amount, and the defendant’s risk of being required to pay something to a claimant: Jonathan T. Molot, “A Market in Litigation Risk” (2009) 76 University of Chicago Law Review 367 . Litigation risk is a consequence of the impossibility of precisely predicting adjudicated outcomes : Vicki Waye, “Litigation Risk Transfer and Law Firm Financial Arrangements” (2015) 17 Legal Ethics at 110. It applies to corporate hemisphere litigation as much as it does to personal plight work. Absent a recovery-proportionate contingency fee or sale of the claim, litigation risk is borne by the client rather than the firm. Regarding litigation risk, personal injury lawyers such as SS and WW emphasized the unpredictability of a plaintiff’s recovery during the period of litigation, which in turn makes the ultimate damage award unpredictable. (Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015); Interview with “WW” (Personal injury practitioner, Toronto, female, 13 years since call to the bar. Interviewed July 20, 2015)) Employment lawyer II identified litigation risk in a case as as a factor affecing his willingness to quote a contingency fee: Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015).

Canadian Bar Association (CBA) Standing Committee on Access to Justice, “Underexplored Alternatives for the Middle Class.” (Ottawa: CBA, 2013), online: <http://www.cba.org/CBAMediaLibrary/cba_na/images/Equal%20Justice%20-%20Microsite/PDFs/MidClassEng.pdf> at 18.

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015); Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016).

“if somebody couldn’t afford $1000 a month, because that’s a lot for most people, we say you pay $500 a month, but if you win we’ll take a 10% or %15 contingency. So it is a lower contingency than what a firm would normally charge and a lower flat rate to make it more accessible” (Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015)). Similar comments were made in the Interview with “AA” (Immigration and refugee law practitioner, Toronto, male, 1 year since call to the bar. Interviewed April 13, 2015) .

Herbert M. Kritzer, Risks, reputations, and rewards : contingency fee legal practice in the United States (Stanford, Calif.: Stanford University Press, 2004) ; Nora Freeman Engstrom, “Run-of-the-Mill Justice” (2009) 22 Georgetown Journal of Legal Ethics 1485.

Figure 3, above.

Professional Regulation Committee (Law Society of Upper Canada), Advertising and Fee Arrangements Issues Working Group Report (Report to Convocation June 23, 2016) 2016)https://www.lsuc.on.ca/uploadedFiles/Professional-Regulation-Committee-Report-Convocation-June-2016.pdf> (last accessed: 26 April 2017) at 42. According to Hutchinson, the majority of Ontario personal injury retainers leave the client responsible for disbursements. (Allan C. Hutchinson, “A Study of the Costs of Legal Services in Personal Injury Litigation in Ontario.” 2017), online: <https://www.scribd.com/document/336923555/Hutchinson-Report> at 18, Note 26).

Figure 3, above.

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015) “But the other option that we offer using that example is if somebody couldn’t afford $1000 a month because that’s a lot for most people we say you pay $500 a month, but if you win we’ll take a 10% or %15 contingency. So it is a lower contingency than what a firm would normally charge and a lower flat rate to make it more accessible.”

Herbert M. Kritzer, Risks, reputations, and rewards : contingency fee legal practice in the United States (Stanford, Calif.: Stanford University Press, 2004) at 10.

Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015) ; Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015).

Rupert Jackson, Review of Civil Litigation Costs: Final Report (London: The Stationery Office (UK), 2009) online: The Stationery Office (UK) <https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/jackson-final-report-140110.pdf> (last accessed: 26 April 2017); M. Steven Rastin and Kristy Fleming, “Considerations Under Contingency Fees: What to Take on and When (Presentation to Ontario Trial Lawyers Association),” (2012), online: <http://www.personalinjurylawyerservice.ca/articles-contingency-fees> ; Michael J. Trebilcock, “The Case for Contingent Fees: The Ontario Legal Profession Rethinks Its Positions” (1989) 15 Canadian Business Law Journal 360.

LEI is also known as pre-paid legal services.

Matthias Kilian, “Alternatives to Public Provision: The Role of Legal Expenses Insurance in Broadening Access to Justice: The German Experience” (2003) 30 Journal of Law & Society 31

Paul Vayda, “Chipping away at Cost Barriers: A Comment on the Supreme Court of Canada’s Trial Lawyers Decision,” (2015) 36 Windsor Rev. Legal & Soc. Issues 207 at 217 : “increased saturation of legal expense insurance into the Canadian marketplace could significantly reduce the cost barrier. It would prevent middle-income Canadians from paying out-of-pocket for unexpected legal expenses.”

Luis Millan, “Legal Insurance: While Europeans have embraced the concept, Canadians remain cool to pre-paid legal services” The Lawyers Weekly (May 1, 2009). According to the Affordable Justice report, “this is partly because the civil law tradition of these environments – that is, a body of law developed by civil codes, rather than predominantly judicial precedent – lends itself to greater cost predictability than the common law tradition… Amongst other things, this means that insurers and legal assistance schemes alike are far better able to manage risks, in turn reducing the fear of prohibitive costs, or of falling through the gap, for many users of European legal systems.170” (Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 41).

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 39-40.

Unifor, “Unifor Legal Services Plan,” <http://www.uniforlsp.com/covinfo.htm> (last accessed: 26 April 2017). See also “Hyatt Legal Plans (A MetLife Company),” <https://www.legalplans.com> (last accessed: 26 April 2017).

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 102. For examples of LEI plans that exclude family law legal services, see Barreau du Quebec, “Legal Insurance Bureau,” <http://www.legalinsurancebarreau.com/faq/index.html> (last accessed: 26 April 2017) and DAS Canada, “DASGroup—Personal,” <http://das.ca/Group-amp;-Association-Programs/Products-Services/DAS-em-group-Personal-em.aspx> (last accessed: 26 April 2017)

Many such plans also restrict or completely deny the client his or her choice of lawyer. A lawyer-client relationship that the client has not chosen is less likely to be a strong one, and this in turn undermines legal professionalism and service quality.

Note 167 and accompanying text, above.

Action Committee on Access to Justice in Civil and Family Matters, “Colloquium Report” (2014) : “Simplify rules, forms and procedures. Simplification would open the door for multiple other improvements in service, including helping lawyers better to predict the number of days that will be spent in court, thus allowing them to feel more confident charging flat fees.”

Recent reforms to this effect: Shelley McGill, “The Evolution Of Small Claims Court: Rising Monetary Limits And Use Of Legal Representation “ (2015) 32 Windsor Yearbook of Access to Justice 173, online: <http://ojs.uwindsor.ca/ojs/leddy/index.php/WYAJ/article/view/4520/3767> (last accessed: 26 April 2017); Janet Walker and Lorne Sossin, Civil litigation (Toronto: Irwin Law, 2010) ch. 10 “Civil Justice Reforms.”

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 47. Michael Trebilcock, “The Price of Justice” in Farrow & Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, 2018) : “Page 9, Highlight (Yellow):

Content: “ The more prolix and protracted civil proceedings are, the higher the monetary, temporal, and psychological costs experienced by many litigants, creating pressures on them to settle cases or to move disputes to less costly and more expeditious venues.”

Robert Harvie, “Checking Our Egos and Accepting Our Part is Fundamental to Restoring Public Trust in the Justice System (National Self-Represented Litigants Project Blog, December 3, 2014),” <https://representingyourselfcanada.com/2014/12/03/checking-our-egos-and-accepting-our-part-is-fundamental-to-restoring-public-trust-in-the-justice-system/> (last accessed: 26 April 2017)

Sujit Choudhry, Michael Trebilcock and James Wilson, “Growing Legal Aid Ontario into the Middle Class: A Proposal for Public Legal Expenses Insurance” in Trebilcock, Duggan & Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012); Michael Trebilcock, “Report of the Legal Aid Review.” (Toronto: (Ontario), 2008), online: <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/>

TPLF is considered further at section 8.5, below. See also Jasminka Kalajdzic, Peter Cashman and Alana Longmoore, “Justice for Profit: A Comparative Analysis of Australian, Canadian and U.S. Third Party Litigation Funding” (2013 ) 61 American Journal of Comparative Law 93; Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 25; David S. Abrams and Daniel L. Chen, “A Market for Justice: A First Empirical Look at ird Party Litigation Funding” (2013) 15 University of Pennsylvania Business Law Journal 1075, online: <http://scholarship.law.upenn.edu/faculty_scholarship/875> (last accessed: 26 April 2017).

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 25 and sources cited therein.

See section 3.5.8, above.

See also David Stager and H. W. Arthurs, Lawyers in Canada (Toronto: Published in association with Statistics Canada by University of Toronto Press, 1990) at 225: “a modified version of the contingent fee has been proposed that would shift the risk from both the client and the lawyer to a risk-sharing commission (Megarry 1980). This version, sometimes called the ‘group contingent fee.’ would be based on an agency that would agree to pay a lawyer a normal fee to conduct a case, while the client would agree with the agency that it would receive a percentage of the award, if any. The risk is therefore ‘mutualized’ by the agency which should be able to reduce the contingent proportion below the usual 35 to 40 per cent, by screening out frivolous cases and more accurately assessing the degree of risk of outcome.”

Jordan Furlong, “Why lawyers don’t innovate (Law21, August 20^th, 2013),” <http://www.law21.ca/2013/08/why-lawyers-dont-innovate/> (last accessed: 26 April 2017); Jonathan Fields, “Why Most Lawyers Make Terrible Entrepreneurs,” <http://www.jonathanfields.com/why-most-lawyers-make-terrible-entrepreneurs/> (last accessed: 26 April 2017).

Distinguishing litigation risk from other types of risk involved in a personal plight file, seeVicki Waye, Trading in Legal Claims (Adelaide, Australia: Presidian Legal Publications, 2008) at 35, above note 163.

Section 3.4.1, above.

Interview with “AA” (Immigration and refugee law practitioner, Toronto, male, 1 year since call to the bar. Interviewed April 13, 2015) : “Flat fee exposes you to runaway engagement risk? Yes. Experience with a civil litigation file where he took on flat retainer to get through a certain stage of litigation. Unexpected motions took up many many hours. This was a learning experience. Future retainers will be drafted with escape hatches etc.”

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015). See also Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015): “I need to fine tune it because I don’t think I have been charging enough money thus far.” … “I think over time the more experience I get the better I will get at predicting what it costs.” See also these comments from the Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016): “I was able to do it from the outset of my career and it doesn’t take a lot of experience, it is just that I guess it takes a bit of experience to understand what cases become more complicated and what ones aren’t. If you are just generally operating on the principle of, okay, it is $5000 for a domestic, you’re okay. It’s just several will come along where you never thought of that issue and now you’re spending 3-4 days on trial thinking.” Family lawyer E2 said: “you can sit down and say ‘what’s does it really cost me to get through to questioning or discovery?’ and ‘what does it cost me to get through discovery to steps of trial?’ and ‘what does it cost me for trial on average’, so at least you have the predictability…you have to start with that and really get a handle on what does it cost and then you can say to a client ‘OK, I’ll charge you this much to get from A to B’ and you have a pretty good idea that is going to be in the ballpark. And then what happens is, if you can deliver that product in less time, now it becomes a return on your quote.” (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015)).

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015)

Ibid.

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015)

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015) “With fixed fees, “ the risk is on the lawyer…. it’s just the nature of the adversarial process, it’s unpredictable… as lawyers we have to figure out how to deal with that…””

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015) DD said that personal injury, likewise, is “very predictable, in the right hands there’s very little risk or there should be very little risk.”

Ibid.

Section 9.1.1, below.

Lorne Sossin and Samreen Beg, “Should Legal Services be Unbundled?” in Michael Trebilcock, Anthony Duggan & Lorne Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012) at 9: “legal expenses tend also to be unexpected. While anyone who owns a house knows they will have to replace the roof every 10-15 years, and while most people know they will eventually go through sickness, litigation is not an expense that is planned for (or, presently, insured for). “

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “Semple: So the money is all deposited in cash retainers beforehand?

C2: Right. Well not everyone, but that’s certainly our policy. The rule generally in criminal law is what you have in trust when a file ends is what you get paid. That’s just kind of a known fact. You pursue someone for $2000 while they are in jail or pursue someone who has been acquitted.”

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015)

Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015); Interview with “NN” (Estates and family law practitioner, Windsor, female, 14 years since call to the bar. Interviewed June 9, 2015)

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “We operate on the premise that what we have in trust in the end is what we get paid. It’s not like working with businesses where you send an invoice and get paid.”

Lonny Balbi, “Flat-fee billing: replacing time with value (The Lawyers Weekly, July 03 2009),” <http://www.lawyersweekly.ca/articles/954> Italics in original source.

Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015)

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015)

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015) “I know that the $200 for the consultation fee is tough. I get it and I know that that might seem like a lot of money. The question you should really be asking yourself is what if you come out of this consultation and there is something you can do and how are you going to fund that? If you are concerned about $200 what will happen when I tell you what it will take to represent you in this case.”

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015)

Noel Semple, “The Cost of Seeking Civil Justice in Canada,” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016> at section B(3), page 658.

For example, family lawyer “E2” told me: “my general minimum retainer is $5000. If I know it’s going to be highly contested, $10,000.” (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015))

See e.g. Law Society of Upper Canada, “By-Law 9: Financial Accounts and Transactions,” <https://www.lsuc.on.ca/uploadedFiles/By-Law-9-Financial-Transactions-Records-10-19-15.pdf> (last accessed: 26 April 2017) at s. 7(1).

“If you are expecting a $5000 retainer upfront, there are not many female clients who can do that at the beginning of their separation.” (Interview with “NN” (Estates and family law practitioner, Windsor, female, 14 years since call to the bar. Interviewed June 9, 2015)).

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015); Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015): “They want a good fit and part of it is price – the retainer – the first thing they ask is what my retainer is. I’ve had to explain to people [that], the real difference is in the hourly rate.” However, clients nevertheless “look at the retainer. When somebody hears that you need a $5000 retainer they go ugh. If I say I only need $2000 or $3000 it’s well that doesn’t sound too bad. I have to explain that it is part of the cost…”

Above.

Noel Semple, “The Cost of Seeking Civil Justice in Canada,” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016>

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015) “most lawyers will do a free consult or at least just say hello and what’s the issue in my experience anyway. When you don’t have to I guess you don’t and some lawyers don’t have to.”

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015). Interestingly, another employment lawyer defended his initial consultation charge on the grounds that the preliminary opinion on the merits of the case has substantial value to the client, insofar as the client can use that evaluation to extract a favourable settlement from the employer. This contrasts to the estimate from a plumber or house-painter, which does not have inherent value to the client: (Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015).

Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015) : “ If somebody maybe doesn’t have the money upfront they ask if I can make other arrangements like a payment schedule. I have done it where I ask for a portion of the retainer upfront and payments for the retainer for the next few months. In that respect they negotiate it.”

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015): regarding retainer fees, “we’ve had negotiations on how much you really need…usually we’re willing to play ball on that depending on the client.” See also Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 149.

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016) “What I often tell clients is, let’s say the retainer is $5000 they’ll say do I pay all that upfront. I typically say we require half of the minimum retainer fee. Again I am flexible. If they have $1000 is that enough? I might have to make an assessment. Generally what I am looking for—is is this person serious? Are they going to pay their bills? There’s all sorts of mechanisms. Some people will have postdated cheques and if one bounces then they will say first one bounces, okay. Second one bounces then we are getting off the record.”

Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015).

For example, a case might be predicted to have a fee of $30,000 and require 10 months to get to a hearing if it does not settle beforehand. YY’s client will pay $3,000 ($30,000 divided by 10) per month until the matter settles if it does so.

Employment law cases may involve less variability than family law cases in terms of both labour requirements and time to completion. For example, Toronto employment lawyer II said “Statistically most cases settle in this time period. You may settle in 3 weeks. Most likely it will settle here, but if it doesn’t it will go all the way here. They have an understanding of what is this time period, middle time period, and if it goes all the way to trial. … As the matter goes along, you get a better sense and look at the defence to figure out whether it will go to trial or not at times. You can tell how much effort and how much depth the pleadings have to tell you the mindset of the other side and what they want out of the process. You can make an informed guess.” (Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015)).

Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015).

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 13.

Interview with “UU” (Personal injury practitioner, Toronto, female, 4 years since call to the bar. Interviewed July 17, 2015)

See notes 250 and 251 and accompanying text, above. Toronto estate litigator HH explained how “on spec” retainers work: “with a will challenge, when you’re representing the challenger and potentially if they win or reach a settlement, these are also fees that are, in those cases, if we think there’s a strong claim, what we’ll often … we’ll often take a direction if we know there’s going to be money coming out of the estate, there’s a strong chance to settle during mediation, let’s take a direction to have no payment of these fees until the settlement, and then we get our fees from the settlement funds.” (Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015). Similar comments were made in the Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015) and the Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015).

One possible drawback of payment-on-recovery was identified by three time-billing lawyers. They suggested that payment-on-recovery leads to unrealistic client demands on the lawyer’s time because the client has a diminished sense of the value of time: Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015); Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015)). However this might be addressed by providing ongoing accounting of the amount which will eventually be deducted from recovery.

In cases of non-payment, Mather et al reported that “by far the most common option” among the family lawyers they interviewed “was to accept monthly payments, which might be as little as ‘five dollars a month forever’ on a bill of several thousand dollars.” (Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 143).

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 26)

Regarding sale of claim generally, see Peter Charles Choharis, “A Comprehensive Market Strategy For Tort Reform” (1995) 12 Yale J. on Reg. 435 and Isaac Marcushamer, “Selling Your Torts: Creating a Market for Tort Claims and Liability” (2005) 33 Hofstra Law Review 1543, online: <http://scholarlycommons.law.hofstra.edu/hlr/vol33/iss4/11> (last accessed: 26 April 2017) and Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf>.

Vicki Waye, Trading in Legal Claims (Adelaide, Australia: Presidian Legal Publications, 2008)

Ibid. at 35. A monopsony is a situation in which there is only one buyer for something.

Claimant litigation risk is the risk of a claim recovering nothing or recovering less than expected. Defendant litigation risk is the risk of being required to pay legal costs, settlements, and/or court-ordered sums due to legal liability. Litigation risk applies to corporate as well as personal parties. See Jonathan T. Molot, “A Market in Litigation Risk,” (2009) 76 University of Chicago Law Review 367 . Litigation risk is distinct from labour requirement risk as that concept is used here.

Section 8.5, below. This includes not only personal injury claimants, but also, for example, homemaker spouses in divorce litigation and employees in wrongful dismissal litigation.

In a few niches, for example insolvency proceedings, there is a limited possibility of selling claims.

Regarding information asymmetry, see section 2.2.1 above and Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 22-27.

Vicki Waye, Trading in Legal Claims (Adelaide, Australia: Presidian Legal Publications, 2008) at 52.

Ibid. 39: “one problem associated with broadening access to justice is the likelihood that claims will be discounted below socially optimal levels.”

Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>.

Vicki Waye, Trading in Legal Claims (Adelaide, Australia: Presidian Legal Publications, 2008) at 47.

Ibid.

Vicki Waye, Trading in Legal Claims (Adelaide, Australia: Presidian Legal Publications, 2008) at 49; Owen Fiss, “Against Settlement” (1984) 93 Yale Law Journal 1073

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf>

Section 4.2, above.

This firm has over 300 staff working in three locations. Co-operative Legal Services Limited, “About Us,” <https://www.co-oplegalservices.co.uk/about-us/> (last accessed: 26 April 2017).

Section 3.6.2, above.

Law Society of Manitoba, “Family Law Access Centre,” <http://www.lawsociety.mb.ca/for-the-public/family-law-access-centre> (last accessed: 26 April 2017). Reviewing this and other “modest means” programs offering discounted rates, see Lucy B. Bansal, “A Lawyer for John Doe: Alternative Models for Representing Maryland’s Middle Class” (2013) 13 University of Maryland Law Journal of Race, Religion, Gender and Class at 169. Offering reduced rates to clients known to have limited capacity to pay can be a profitable strategy as well as an altruistic one for law firms: Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 277.

Law Society of British Columbia, Solicitors’ Liens and Charging Orders – Your Fees and Your Clients (Victoria, BC: LSBC, 2013) online: LSBC <http://www.lawsociety.bc.ca/docs/practice/resources/solicitors-liens.pdf> (last accessed: 26 April 2017)

Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 144.

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015)

“Solicitors Act (Ontario), R.S.O. 1990, c. S.15,” <https://www.ontario.ca/laws/statute/90s15> (last accessed: 26 April 2017) ss. 4–14; Erik S. Knutsen and Janet Walker, “What is the Cost of Litigating in Canada?” in Christopher Hodges, Stephan Vogenauer & Magdalena Tulibacka eds., The Costs And Funding Of Civil Litigation: A Comparative Perspective (Portland, Oregon: Hart, 2010); Alice Woolley, “Time for Change: Unethical Hourly Billing in the Canadian Profession and What Should be Done About It,” (2004) 83 Can. Bar Rev. 859

Herbert M. Kritzer, Risks, reputations, and rewards : contingency fee legal practice in the United States (Stanford, Calif.: Stanford University Press, 2004) .

Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015)

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 267-8

Ibid. at 268-273.

Batalla v St. Michael’s Hospital, 2016 ONSC 1513 (CanLII); Tom Blackwell, “Judge slashes Toronto lawyer’s ‘excessive’ fee to give more money to injured child in malpractice suit (National Post, April 3, 2016),” <http://news.nationalpost.com/news/canada/judge-slashes-excessive-payout-for-toronto-lawyer-in-malpractice-suit-saying-more-mony-should-go-to-injured-child> (last accessed: 26 April 2017)

ntd above

Lester Brickman, Lawyer barons : what their contingency fees really cost America (New York: Cambridge University Press, 2011)

Ibid. 35-36

Employment lawyer “II” described the appeal of contingency fees to clients of modest means as follows: “Mostly clients who want contingency are not wealthy. Means are less and they don’t want to think about paying the lawyer. They let you make your money and you make our money, but we don’t want to hear about hourly, hear about flat fees…they just become nervous so they prefer contingency model. Those are labourers, factory workers, junior employees, even some managerial employees too. It is basically their comfort level.” (Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015)). Toronto civil litigator and former personal injury lawyer BB said: “I think [contingency billing] is really the only way for access to justice in many cases. I mean I suppose if the legal aid budget were unlimited then you wouldn’t need it, but without that happening…” (Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015)). See also M. Steven Rastin and Kristy Fleming, “Considerations Under Contingency Fees: What to Take on and When (Presentation to Ontario Trial Lawyers Association),” (2012), online: <http://www.personalinjurylawyerservice.ca/articles-contingency-fees> .

Herbert M. Kritzer, Risks, reputations, and rewards : contingency fee legal practice in the United States (Stanford, Calif.: Stanford University Press, 2004) at 17.

Bert Kritzer, The justice broker: lawyers and ordinary litigation (New York: Oxford Universith Press, 1990) at 58.

Michael J. Trebilcock, “The Case for Contingent Fees: The Ontario Legal Profession Rethinks Its Positions,” (1989) 15 Canadian Business Law Journal 360 at 361. See also the comments of interviewee BB: “I think lawyers are like many other professionals, and if there’s a reward people take risks. And if you’re a skilled lawyer you know that you’re worth it, you would be engaged in sort of cases that would compensate you accordingly.” (Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015))

As Allan Hutchinson puts the point, “rational lawyers under CFAs [contingency fee arrangements] will strive to maximize their compensation by constantly assessing the cost-benefit of proceeding further in the case.” (Allan C. Hutchinson, “A Study of the Costs of Legal Services in Personal Injury Litigation in Ontario.” 2017), online: <https://www.scribd.com/document/336923555/Hutchinson-Report>)

For example, criminal defender C2’s view was that contingency fees in criminal law would “foste[r] a lot of unethical behaviour. You think I can double my fees if I just tweaked these facts a little or lied to the Crown in a subtle way. It is a hard thing to say that every criminal lawyer, lawyer or person is not going to take those leniencies when there is always an incentive. There’s an ethical component to that too where you incentivizes winning as opposed to incentivize being a really good criminal lawyer… Same ethical dilemmas that arise for defence lawyers. That’s why you should be part of it. You are not retained to win. You are retained to defend this person as best as possible.” ((Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016))) See also Olivia Carville, “Lawyers fight ‘archaic’ ban on no-win no-fee arrangements in family court (Toronto Star, May 31, 2015),” <https://www.thestar.com/news/canada/2015/05/31/lawyers-fight-archaic-ban-on-no-win-no-fee-arrangements-in-family-court.html> (last accessed: 26 April 2017).

Michael J. Trebilcock, “The Case for Contingent Fees: The Ontario Legal Profession Rethinks Its Positions,” (1989) 15 Canadian Business Law Journal 360.

See note 176, above.

Ntd Chalice

Steven Rastin and Kristy Fleming, “Considerations Under Contingency Fees: What to Take on and When (Presentation to Ontario Trial Lawyers Association),” (2012), online: <http://www.personalinjurylawyerservice.ca/articles-contingency-fees> ; Professional Regulation Committee (Law Society of Upper Canada), “Advertising and Fee Arrangements Issues Working Group Report (Report to Convocation June 23, 2016).” 2016), online: <https://www.lsuc.on.ca/uploadedFiles/Professional-Regulation-Committee-Report-Convocation-June-2016.pdf>; Allan C. Hutchinson, “A Study of the Costs of Legal Services in Personal Injury Litigation in Ontario.” 2017), online: <https://www.scribd.com/document/336923555/Hutchinson-Report>.

Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>.

William T. Hogan, “Re: Issues on the Future of Legal Services (Letter to The ABA Commission on the Future of Legal Services, December 20, 2014),” <https://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services.pdf> at 2.

“Solicitors Act (Ontario), R.S.O. 1990, c. S.15,” <https://www.ontario.ca/laws/statute/90s15>, s. 28.1(3)(b)

Folkins, ibid.

Tali Folkins, “Time for contingency fees in family law? (Law Times (Ontario), June 8 2015),” <http://lawtimesnews.com/201506084735/headline-news/time-for-contingency-fees-in-family-law> (last accessed: 26 April 2017); Olivia Carville, “Lawyers fight ‘archaic’ ban on no-win no-fee arrangements in family court (Toronto Star, May 31, 2015),” <https://www.thestar.com/news/canada/2015/05/31/lawyers-fight-archaic-ban-on-no-win-no-fee-arrangements-in-family-court.html>. Windsor family lawyer PP said: “I have a hard time with it. I would be concerned that the money that gets paid is child support or spousal support or division of an asset. That’s somebody’s retirement plan, so how do you have contingency fees when those are really what the settlements are. I might be very successful as a lawyer and get a lump sum payment on child or spousal support because the person hasn’t paid. One of my cases is an order for $16000 today. Should that lawyer get a percentage of that money? That’s child support. …” (Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015))

There would certainly be complications in applying contingency fees to family law cases. While a personal injury or class action suit seeks a single payment from the defendant, a family law client often seeks a more complex remedy. Some remedies are lump sums (e.g. a matrimonial property settlement) and could be readily subjected to a proportionate fee as in tort cases. Other family law remedies are income streams (e.g. child and/or spousal support). A proportionate fee could also be deducted from each support payment going forward, but to secure the fee it might be necessary for the payments to be made to the firm in trust instead of the ultimate recipient. Finally, some family law remedies (e.g. child custody and access rights and restraining orders) are non-monetary and this is a challenge for contingency billing. These would have to be billed in some other way. See Tali Folkins, “Time for contingency fees in family law? (Law Times (Ontario), June 8 2015),” <http://lawtimesnews.com/201506084735/headline-news/time-for-contingency-fees-in-family-law>.

Law Soceity of British Columbia, Law Society Rules (Vancouver: LSBC, 2015) online: LSBC <https://www.lawsociety.bc.ca/page.cfm?cid=4089&t=Law-Society-Rules-2015> (last accessed: 26 April 2017) at 8-2(1)(a).

“Solicitors Act (Ontario), R.S.O. 1990, c. S.15,” <https://www.ontario.ca/laws/statute/90s15>

Allan C. Hutchinson, “A Study of the Costs of Legal Services in Personal Injury Litigation in Ontario.” 2017), online: <https://www.scribd.com/document/336923555/Hutchinson-Report> at 10.

Arguing against legislative caps on contingency fees, see Herbert M. Kritzer, Risks, reputations, and rewards : contingency fee legal practice in the United States (Stanford, Calif.: Stanford University Press, 2004) at 263-265

Lord Chancellor MacKay, cited in John Peysner, Access to Justice: A Critical Analysis of Recoverable Conditional Fees and No Win No Fee Funding (London: Palgrave, 2014) at 28,

Regarding information asymmetry, see section 2.2.1 above.

ntd Chalice

Michael J. Trebilcock, “The Case for Contingent Fees: The Ontario Legal Profession Rethinks Its Positions,” (1989) 15 Canadian Business Law Journal 360 at 366.

Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>, ntd Chalice

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016),

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 244-5.

“Many self-reps find it difficult to travel to a lawyer’s office. There may be an issue of distance or transportation. There may be a problem of getting time off work, or of finding childcare. There may be the discomfort some people have about travelling ‘downtown’ to a fancy office.” (Joel Miller, “1 Insight, 6 Truths and 3 Pillars : A fresh approach to serving self-reps in Family Court (Presentation to Family Dispute Resolution Institute of Ontario. May 4, 2015)” (2015) ) at 5. Opening offices in shopping malls and strip malls was one of the strategies of the American personal plight “franchise” firms which flourished in the 1990s: Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) at 28. Two respondents indicated that they have opened lightly-staffed “satellite” or “consultation” offices to serve clients in a different area. (Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015)).

See for example Australian firm Nest Legal, “Australia’s first online after-hours lawyer

for busy families.” ( “Nest Legal,” <https://www.nestlegal.com.au> (last accessed: 26 April 2017)))

Joel Miller, “1 Insight, 6 Truths and 3 Pillars : A fresh approach to serving self-reps in Family Court (Presentation to Family Dispute Resolution Institute of Ontario. May 4, 2015),” (2015) at 7: “Anywhere service. The self-rep consumer must be able to access the service from anywhere by email, phone, or Skype. No going to an office is required. It’s all remote.”

Value stance or ideology is another dimension along which personal plight legal services can be variegated. For an intriguing example, see this discussion of Galldin & Roberts, a feminist law firm: Karin Galldin, Leslie Robertson and Andrea Tredenick, “Starting a Feminist Law Firm (Contours: Voices of Women in Law) “ (2015), online: <https://contours-mcgill.com/2015/04/01/vol3startingafeministlawfirm/> (last accessed: 26 April 2017). Finally, in some cases, perhaps especially in family law, some clients may prefer to work with a legal professional of a certain gender or sexual orientation.

Offering choices in pricing models, see Infinity Law, “Legal Pricing,” <https://www.infinlaw.com/legal-pricing/> (last accessed: 26 April 2017). Interviewee RR does likewise: “I offer people a contingency fee, a retainer or a fee-for-service retainer. I try to explain to them the pro- and the con- of each and then I say to them ‘you pick’. I don’t care whatever way you want to arrange payment because as far as I’m concerned one retainer is just a bad as the other. They’re both bad because they’re both way too expensive… NS: the fee-for-service retainer, would that be a time based retainer?

RR: Yeah, it’s x-dollars per hour times the number of hours and at the end whatever time your case has taken it’s multiplied out and it’s all done by computer and the secretaries take care of it… on personal injury I always offer them both. The other cases basically boils down to how strong of a case I think they have. If I think they have a strong case, sure I’m willing to go contingency and take my chances. If I think they have a lousy case, I’ll tell them that and I’ll insist on a fee for service retainer. Sometimes they agree and sometimes they leave.” (Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015))

Section 5.4.3.1 and 5.4.3.2, below.

Michael J. Trebilcock, Carolyn J. Tuohy and Alan D. Wolfson, Professional regulation : a staff study of accountancy, architecture, engineering and law in Ontario prepared for the Professional Organization Committee (Toronto: Ministry of the Attorney General, 1979) at 78-9; Bryant G. Garth, “Rethinking the Legal Profession’s Approach to Collective Self-Improvement: Competence and the Consumer Perspective” (1983) 1983 Wisconsin Law Review 639; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 21-22.

E.g. Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015); Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015); Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Alberta family lawyer E2 said “I have a clerical assistant, a legal assistant who can do it well under my supervision and I charge her around 125 dollars and hour as opposed to my 500 dollars an hour. I will make judgment calls on when that’s appropriate, [and ask the client] ‘do you have a problem with that?’ Unanimously my clients are happy that they’re having someone do an affidavit of records where some of the tedious stuff, organizing undertakings from examinations, gathering financial disclosure, she’ll do that. So when she’s working independent of me, I’ll bill her time independently and transparently to the clients. And I think it is good for them. I think, to be honest I think it’s a big part of where family law needs to go. I don’t think as a practice we’re doing it extremely well.” (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015))

Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 140

Daphne Dumont, ““Better . . . or Worse?” The Satisfactions and Frustrations of the Lawyer‑Client Relationship” in Blaikie, Cromwell & Pink eds., Why Good Lawyers Matter (Toronto: Irwin Law Inc., 2012) at 24: “After the problem is explained, after the client’s fears are expressed, and after the details of the legal problem are thoroughly talked over… the lawyer, confident in her knowledge of procedure and her estimate of the justice of the client’s claim, begins to take up the strain of solving the client’s problem. The lawyer accepts the responsibility, and the process of seeking justice gets underway.” As Sossin and Beg explain it, “the traditional legal service delivery model of full representation relies on a lawyer taking on all aspects of a client’s legal issue.” (Lorne Sossin and Samreen Beg, “Should Legal Services be Unbundled?” in Trebilcock, Duggan & Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012) at 199).

Ann Juergens, “Toward a More Effective and Accessible Solo and Small Firm Practice Model” in Estreicher & Radice eds., Beyond Elite Law: Access to Civil Justice in America (New York: Cambridge University Press, 2016) at 386.

See e.g. “YouCounsel,” <http://youcounsel.ca> (last accessed: 26 April 2017).

See section 2.3.3.2, above.

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015).

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015)

Ibid.

Lorne Sossin and Samreen Beg, “Should Legal Services be Unbundled?” in Trebilcock, Duggan & Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012).

“Vertical unbundling breaks up the lawyer’s role into a number of limited legal services, empowering the client to select only those needed. Horizontal unbundling limits the lawyer’s involvement to a single issue or court process.” (Forrest S. Mosten, “Unbundled Legal Services Today – and Predictions for the Future” (2012) 35 Family Advocate 14, online: <http://www.mostenmediation.com/books/articles/Unbundled_Legal_Services_Today_and_Predictions.pdf> (last accessed: 26 April 2017)). See also Lucy B. Bansal, “A Lawyer for John Doe: Alternative Models for Representing Maryland’s Middle Class,” (2013) 13 University of Maryland Law Journal of Race, Religion, Gender and Class at 173 et seq.

Toronto civil litigator Mick Hassel’s “Self Service Litigation Garage” combines price certainty with price/tier options. It includes four packages, varying from “On Call” ($250 flat fee for 5 phone calls with the lawyer in a month) up to “Rent a Lawyer” ($750 flat fee for representation in one court appearance.) Mick Hassell, “Self Service Litigation Garage,” <http://www.litigationgarage.ca/Litigation_Garage/Self_Service_Litigation_Garage.html>Windsor litigator QQ gave another example:: “there is a lady who requested this morning for me to put together an application record for her. She doesn’t want to be represented in court, but she needs an application record, so I am working in my mind what I think this is going to cost.” (Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015)).

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015) ; ibid..

Nikki Gershbain, “A Coach in Your Corner: Legal Coaching as an Alternative to Full Representation for Family Litigants (Presentation to County of Carleton Law Association, April 19 2017)” (2017), online: <https://www.dropbox.com/s/hrd88vp1cd3dgbt/FINAL%20CCLA%20Legal%20Coaching%20April%2019%202017%20PPT%20%5BAutosaved%5D.pptx?dl=0> (last accessed: 26 April 2017); National Self-Represented Litigants Project, “The Lawyer as Coach? A New Model of Unbundling in Family Law,” <https://representingyourselfcanada.com/legal-coaching/> (last accessed: 26 April 2017). Lynn Mather et al found this practice among Maine and New Hampshire family lawyers in the 1990s: Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 141.

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015). See also Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015): “For small claims court … occasionally I will agree to accept what I called a ‘limited service retainer’ where I’ll tell them what to do, where to go, what form to get, and they’ll do all the running around and paying the fees. And when they finish that stage they’ll come back and now what. And I’ll bill them for whatever time it takes for me to guide them through the system.”

http://www.familylawhelp.ca/family-law-services

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015); Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015); Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015); Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015); Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015); Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015).

The Family Law Coach, “Self-rep Providers Directory,” <http://thefamilylawcoach.com/self-rep-service-providers-directory/>

2. Ibid. See also http://www.courtassist.ca/services.html

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015).

http://waymarklaw.ca/law-services/ Waymark Law, “Services,” <http://waymarklaw.ca/law-services/> (last accessed: 26 April 2017) Waymark offers one-on-one coaching for $150/hr, as well as “pinch hit” representation in court for $250/hour.

The Family Law Coach, “Self-rep Providers Directory,” <http://thefamilylawcoach.com/self-rep-service-providers-directory/>; Mick Hassell, “Self Service Litigation Garage,” <http://www.litigationgarage.ca/Litigation_Garage/Self_Service_Litigation_Garage.html>

Affording Justice, “How Much Does It Cost?” (2016), online: <http://affordingjustice.com.au/our-fees/> (last accessed: 26 April 2017)

Doing so presumably reduces the labour requirement for the firm. See for example “Affording Justice,” an Australian firm advertising a variety of unbundled services: “ Formed by two high profile Queensland practitioners, Affording Justice is a law practice that aims to be ‘an affordable and independent first step for everyone’ and to give ‘step by step guidance to people who can’t afford full legal representation’. Affording Justice is a predominantly virtual firm with low overheads, and its website offers three forms of service. The first is Legal Diagnosis, which provides advice about the law that applies to a person’s situation and the processes available to help. Where a person can resolve the matter themselves, they can elect to use the Legal Advice and Legal Task Help services, which offer assistance with defined tasks for fixed prices. Where it is apparent that a person needs full representation, they are offered a referral to another solicitor, or to an associated practice, Doyle Family Law.” ibid..

Chapter 1, above.

Ipsos Mori, Qualitative Research Exploring Experiences and Perceptions of Unbundled Legal Services (London: Legal Services Board and Legal Services Consumer panel (England & Wales), 2015) online: LSB/LSCB <https://research.legalservicesboard.org.uk/wp-content/media/14-086345-01-Unbundling-Report-FINAL_060815.pdf> (last accessed: 26 April 2017) at 1.

Lorne Sossin and Samreen Beg, “Should Legal Services be Unbundled?” in Trebilcock, Duggan & Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012) 381: “Unbundled services would soften the harshness of the “all or nothing approach” by being a mid- way point between full representation and no representation. “

“Clients want the opportunity to do some more routine work themselves to keep costs down.” (CBA Legal Futures Initiative, The Clients’ Perspective (Ottawa: 2013) online: Canadian Bar Association <http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/The-Clients-Perspective-Linked-eng.pdf> (last accessed: 26 April 2017) at 9).

See also section 6.3 considering unbundling as a form of vertical division of labour.

3. E.g. Waymark Law, “Services,” <http://waymarklaw.ca/law-services/>

Joel Miller, “1 Insight, 6 Truths and 3 Pillars : A fresh approach to serving self-reps in Family Court (Presentation to Family Dispute Resolution Institute of Ontario. May 4, 2015),” (2015) ; Josh King, “Price Transparency and Legal Services (Video, ReInvent Law Channel),” <https://vimeo.com/98606909>.

It may however vary based on unexpected legal and factual wrinkles not apparent at the initial consultation.

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015).

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015).

Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015).

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 94. See also Toronto family lawyer FF: “when you have a lawyer in a situation, and they only have a limited scope in which they’re supposed to operate, and they do the very best that they possibly can under the circumstances… there’s probably going to be something that gets missed, because you’re not handling the case from beginning to end. You’re not familiar with everything, you can’t necessarily rely on … what the client is telling you. You don’t have that context of the interactions with opposing counsel, or in some cases the materials… “ (Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015))

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015).

Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015): re coaching model, “The unfortunate part of that one though is once they get close to trial, frequently they get nervous and they start insisting that I represent them.”

Lorne Sossin and Samreen Beg, “Should Legal Services be Unbundled?” in Trebilcock, Duggan & Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012) at 214: “the “on-again, off-again” nature of the representation may result in inconsistencies within the litigant’s file. This may especially be the case where more than one lawyer is retained at different points by a litigant resulting in conflicting strategies and approaches to the legal problem.”

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015).

Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015). See also Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015): “if you are just there on the periphery, things are going to be happening, you’re not going to know they’re there… when things go wrong they’re going to blame you anyway. “

If multiple firms are retained in succession on a single file, the problem is compounded. C2 said that retaining multiple consecutive firms is highly problematic in a criminal defence case: “every lawyer has such a different perspective of a case and the way it unfolds is so dynamic that to come in at some point and say ‘you should do this’… it actually can negatively affect the overall process. Imagine you had 7 coaches who offer 5 different opinions along the way of a playoff game of the NHL. They’re like okay guys let’s switch to the Russian model now… What would happen with the unbundled method is two things: the lawyer who comes in late will go back and criticize the previous lawyer saying you shouldn’t have done this. Whereas earlier stage lawyers say this is how you need to do it.” (Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016))

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015)

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 28: Unbundling “appears to offer a significant benefit to legal practices, who are able to attract more clients by offering such services, and still be paid for their time, making it a ‘win-win’ scenario for all involved.  ”

Chapter 1, above.

Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016)

Chapter 2, section ntd, above.

“If somebody’s going to asses you on a $5,000 file, the risk is minimal, the time is minimal for the preparation. In a $100,000 file, there’s more preparation, there’s greater risk.” (Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015)).

Ibid.

Ibid..

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016). This instinct also reduces the risk of law suits, according to Alberta family lawyer E2: “From a civil litigation point of view, from a liability point of view, the guy that does the 8 hours of research is much less likely to get sued than the guy that does no research” before drafting or offering advice. (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015)).

National Self-Represented Litigants Project, “Making it Legal: Some Simple Steps for Moving Unbundling to the Next Stage (July 12, 2016),” <https://representingyourselfcanada.com/making-it-legal-some-simple-steps-for-moving-unbundling-to-the-next-stage/> (last accessed: 26 April 2017)

See also Nikki Gershbain, “A Coach in Your Corner: Legal Coaching as an Alternative to Full Representation for Family Litigants (Presentation to County of Carleton Law Association, April 19 2017),” (2017), online: <https://www.dropbox.com/s/hrd88vp1cd3dgbt/FINAL%20CCLA%20Legal%20Coaching%20April%2019%202017%20PPT%20%5BAutosaved%5D.pptx?dl=0> at 9. Scope creep was the practice management challenge associated with coaching that was identified most frequently by respondents to a survey of lawyers offering this service.

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015); See ntd page “Engagement Letters and Acknowledgment Forms” in Lorne Sossin and Samreen Beg, “Should Legal Services be Unbundled?” in Trebilcock, Duggan & Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012) 381.

Ipsos Mori, “Qualitative Research Exploring Experiences and Perceptions of Unbundled Legal Services.” (London: Wales), 2015), online: <https://research.legalservicesboard.org.uk/wp-content/media/14-086345-01-Unbundling-Report-FINAL_060815.pdf> at 3. Hamilton criminal defence lawyer A2 worried that in an unbundled retainer “sometimes you’ll give them some advice over the telephone and they’ll go off do something different, end up in a big mess and blame it on you. “ (Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015))

For example, family lawyer TT said: “we owe the same standard of care in every case, but the problem is we’re not doing the same due diligence. And we try to carve that out in our opinion letter. If a client says: ‘I don’t want you looking at any of the disclosure… I did the NFP [Net Family Property] statement, I want you to go help me with the negotiations.’ OK, but we have to confirm that we are not looking at that because you’ve instructed us not to and you don’t want to pay for it, and we’re starting on the assumption that the NFP statement you gave us is correct… And there needs to be …a greater particularity in terms of our rules that is very clear on, if a client doesn’t want us to look at things, it’ understood that we’re not necessarily looking at the whole file, because the client doesn’t want us to. So we’ll take the time to confirm that we didn’t.” (Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015)).

Dan Pinnington, “”LAWPRO concerned that unbundled legal services will mean more claims” (Avoid-a-Claim Blog, December 6, 2010),” <http://avoidaclaim.com/2010/lawpro-concerned-that-unbundled-legal-services-will-mean-more-claims/> (last accessed: 26 April 2017)

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015).

Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015): “NS: Some people say there’s impediments to the provision of unbundled legal services and lawyers are afraid they will get trapped or what they say will be misrepresented to the court.

PP: I think both are real.”

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015)

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015).

The author has not been able to find any empirical evidence comparing these risks under the two models.

Two identified risk of liability arising from unbundled legal service provision: Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015), Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015).

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015).

Regarding information asymmetry, see section 2.2.1 above. Externalities are consequences of a transaction that are borne by people other than the parties to that transaction. Legal services can create both positive externalities (e.g. precedents) and negative externalities (e.g. the loss experienced by the intended beneficiaries of negligently-drafted will.) See also Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at pp. 18-34.

Regarding efficacy and other measures of legal servivce quality, see Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>.

Jessica K. Steinberg, “In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services” (2011) 18 Geo. J. on Poverty L. & Pol’y 453. See also Ipsos Mori, “Qualitative Research Exploring Experiences and Perceptions of Unbundled Legal Services.” (London: Wales), 2015), online: <https://research.legalservicesboard.org.uk/wp-content/media/14-086345-01-Unbundling-Report-FINAL_060815.pdf> at 3 regarding lawyers’ perception that clients with unbundled retainers may do damage to their own cases.

Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015).

Ibid..

Yamri Taddese, “Lawyers get primer on options for unbundled services (Law Times, Feb. 9 2015)” (2015) .

Kristin Huston, “The Lawyer as Savior: What Literature Says about the Attorney’s Role in Redemption” (2004) 73 UMKC L. Rev. 161.

Nika Kabiri, “What clients want: To hire you as they need you” (2016), online: <http://lawyernomics.avvo.com/client-intake/what-clients-want-to-hire-you-as-they-need-you.html> (last accessed: 26 April 2017).

Bert Kritzer, The justice broker: lawyers and ordinary litigation (New York: Oxford Universith Press, 1990) at 61.

“In this framework, the relationship of lawyer to client is inevitably one of (substantive) expert to naïf.” (Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) at 125.)

Sam Glover, “Why Are Lawyers So Expensive? I’ll Tell You Why (Lawyerist, February 12^th, 2016),” (2014), online: <https://lawyerist.com/77964/lawyers-expensive-ill-tell/>

This “classical model… emphasizes a claim to professional expertise coupled with compliance from clients.” (Carroll Seron, The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys (Philadelphia, PA: Temple University Press 1996) at 106-7).

Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) at 126: “lawyers are accustomed to their clients giving up their own judgment and handing the decision making over to them.”

Douglas E. Rosenthal, Lawyer and client, who’s in charge? (New Brunswick, N.J.: Transaction Books, 1977) at 7.

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015).

Robert W. Gordon, “The Independence of Lawyers” (1988) 68 Boston University Law Review 1; Carroll Seron, The Business of Practicing Law: The Work Lives of Solo and Small-Firm Attorneys (Philadelphia, PA: Temple University Press 1996) at 107.

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016).

E.g. Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) . Criticizing lawyers’ “misplaced savior complex,” see Katie Rose Guest Pryal, “American lawyers have an Atticus Finch complex, and it’s killing the profession (Quartz, March 31, 2016),” <https://qz.com/651270/the-american-legal-system-has-an-atticus-finch-complex-and-its-killing-the-profession/> (last accessed: 26 April 2017).

Section 2.2, above.

Daphne Dumont, ““Better . . . or Worse?” The Satisfactions and Frustrations of the Lawyer‑Client Relationship” in Blaikie, Cromwell & Pink eds., Why Good Lawyers Matter (Toronto: Irwin Law Inc., 2012); Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) at 127.

Interview with “GG” (Family law and poverty law practitioner, Nanaimo, female, 32 years since call to bar. Interviewed May 11, 2015)

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016)

Ibid.

Nika Kabiri, “What clients want: To hire you as they need you,” (2016), online: <http://lawyernomics.avvo.com/client-intake/what-clients-want-to-hire-you-as-they-need-you.html>

The underlying assumption is that “both client and consultant gain from a sharing of control over many of the decisions arising out of the relationship” (Douglas E. Rosenthal, Lawyer and client, who’s in charge? (New Brunswick, N.J.: Transaction Books, 1977) at 7).

Of course, the salvation and assistance models are poles on a continuum: most real-life lawyer-client relationships have elements of both as well as many other complexities: Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) at 126.

This attitude may be more common among young people today. Toronto employment lawyer II reported that he “was talking to my nephew, who is this young guy into start-up worlds in silicon valley in that scene. He said I am a smart guy, why do I need a lawyer for anything? It does not make sense for me to hire a lawyer. I said you cannot work the system and know the nuances. He’s like I don’t buy that. I understand what you are saying but I think that’s going to change because I refuse to be a smart person and depend on a lawyer and not do my research online and figure out things on my own to sort it out.” (Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015)).

Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) at 130; John Craig, “Production values: Building shared autonomy” in John Craig ed., Production Values: Futures for Professionalism (London: Demos, 2006)http://www.demos.co.uk/files/productionvalues1.pdf?1240939425> (last accessed: 3 June 2016).

Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) at 135-138

Jordan Furlong, “Client Change: The Age of Consumer Self-Nagivation” in Paul A. Haskins ed., The Relevant Lawyer: Reimagining the Future of the Legal Profession (Chicago: American Bar Association, 2016) at 38. Furlong argues that there has been a “dynamic and relatively sudden shift in the posture of legal consumers from passive recipients of legal services to active participants in a market of legal resource options.” (at 37)

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 8. See also CBA Legal Futures Initiative, The Future of Legal Services in Canada: Trends and Issues Report (Ottawa: Canadian Bar Association, 2013) online: Canadian Bar Association <http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/trends-isssues-eng.pdf> (last accessed: 26 April 2017) at 16: “clients want more information on services, more involvement in decision-making and greater knowledge of the risks and potential outcomes of various legal strategies.” A client consultation conducted by the CBA Futures Commission found a “noted an increase in the “do-it-yourself” mindset.” (CBA Legal Futures Initiative, “The Clients’ Perspective.” (Ottawa: 2013), online: <http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/The-Clients-Perspective-Linked-eng.pdf> at 9).

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015)

“A lawyer and client relationship presupposes that the client has the requisite mental ability to make decisions about his or her legal affairs and to give the lawyer instructions.” (Federation of Law Societies of Canada, “Model Code of Professional Conduct,” <http://flsc.ca/national-initiatives/model-code-of-professional-conduct/>, R. 3.2-9, Commentary 1).

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016).

Lorne Sossin and Samreen Beg, “Should Legal Services be Unbundled?” in Trebilcock, Duggan & Sossin eds., Middle Income Access to Justice (Toronto: University of Toronto Press, 2012) 381. : “there is a measure of empowerment which may flow from unbundling as well.”; Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 27.

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015)

Interview with “GG” (Family law and poverty law practitioner, Nanaimo, female, 32 years since call to bar. Interviewed May 11, 2015).

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016).

“Another thing I’ve found about SRLs with the work that I’ve been doing is that they’re really appreciative. As opposed to the traditional paradigm where its ‘how come it’s not happening faster’, ‘why didn’t you do this’…all that stuff, don’t get that. Because now they’re doing the work, and they realize how things work. How slow things work, and all the obstacles you face like how you have to wait for a trial date and they know it. They’re just so happy and appreciative of the work, of the help you give them. It’s a much nicer way to practice.” (Interview with “GG” (Family law and poverty law practitioner, Nanaimo, female, 32 years since call to bar. Interviewed May 11, 2015)).

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016).

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016); Interview with “GG” (Family law and poverty law practitioner, Nanaimo, female, 32 years since call to bar. Interviewed May 11, 2015). See also Julie Macfarlane, The new lawyer : how settlement is transforming the practice of law (Vancouver: University of British Columbia Press, 2008) .

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015); Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015); Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016); Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015). See also CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 94-5 and Nikki Gershbain, “A Coach in Your Corner: Legal Coaching as an Alternative to Full Representation for Family Litigants (Presentation to County of Carleton Law Association, April 19 2017),” (2017), online: <https://www.dropbox.com/s/hrd88vp1cd3dgbt/FINAL%20CCLA%20Legal%20Coaching%20April%2019%202017%20PPT%20%5BAutosaved%5D.pptx?dl=0> at 10-13.

Mitch Kowalski, “De-Constructing Legal Services (Slaw.ca, March 7^th 2013)” (2013), online: <http://www.slaw.ca/2013/03/07/de-segmenting-legal-services/> (last accessed: 26 April 2017).

Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015); Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015).

“Clients want simpler, basic tasks to be done by non-lawyers at a lower cost and then reviewed by a lawyer. They expect to pay according to who does the work.” (CBA Legal Futures Initiative, “The Clients’ Perspective.” (Ottawa: 2013), online: <http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/The-Clients-Perspective-Linked-eng.pdf> at 8). See also David Stager and H. W. Arthurs, Lawyers in Canada (Toronto: Published in association with Statistics Canada by University of Toronto Press, 1990) at 195-6.

“I recognize I am utterly incompetent in what I called the administrative aspects of my practice: bookkeeping, ordering supplies, paying bills, all of those kinds of things. Secondly, I don’t want to do it, I’m a lawyer. That’s what I do. So I hire and I pay people to do all of those things. And I expect them to do their job and I’m so grateful for the help and the assistance of the people who have worked for me over the years because I’ve been very lucky and I have had very competent support staff and accounting advice. And I’ve been able to turn all of that over to those people who know what they’re doing in those areas and that of course frees me up to do what I do.” (Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015))

HH said “I’m not going to review all the medical documents in the same level of detail or maybe I can’t review them. I’m going have to push them down to someone else to review them. Maybe I get my law clerk to do a first look to flag her to look for these words and highlight those words if those pop up and hope that that kind of first review will cut through a lot of the time I would have spent.” (Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015))

For example, YY: “I would say on average I probably get 20 calls a day and if I answer the calls they typically last 10 minutes – just the initial call to see if you want to come for a consultation. If I am doing that I don’t get any work done. Previously our receptionist would screen all the calls and now I have an individual coming in on a part time basis to do that.” (Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015)). See also comments from interviewee “II:” “I know one employment law firm with high volume of people calling, [so] they hired a non-lawyer person and taught her to ask the right questions – initial screening. Get that information, then you basically feed that information to lawyers. Then they are not wasting their half an hour figuring out that information and then assessing it. You collect data, then get the lawyer, which is a smart way of doing that. Their business has increased. They are providing services in a more cost-effective way than many of their competitors.” (Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015))

“There is no reason why we can’t make those steps efficient. If we know this is an estate litigation and passing of accounts will take place, then passing accounts will take place. Let’s make that process efficient. They provide you documents, you gather documents. Make sure the lawyer isn’t spending hundreds of hours on those documents. You have the support staff to do that stuff.” (Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015)). “The client who lasts 3-4 years comes to trust the assistant, they will provide information to the assistant instead of the lawyer.” (Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015))

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015).

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015); Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) at 124.

Ibid.

E.g. Jeff Grey, “Bay Street law firm launches legal ‘incubator’ in Halifax (The Globe and Mail, Wednesday, Jul. 02, 2014),” <http://www.theglobeandmail.com/report-on-business/industry-news/the-law-page/bay-street-law-firm-launches-legal-incubator-in-halifax/article19405816/> (last accessed: 26 April 2017).

Richard E. Susskind, Tomorrow’s lawyers : an introduction to your future (Oxford, United Kingdom: Oxford University Press, 2013) at 35

“Typical plaintiff-side personal injury firm you do need the assistants, because the volume of paperwork is a lot. Because if you have to obtain medical records from ten different doctors, it is better that you have staff that do that“ (Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015)). See also Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) 14: “plaintiffs personal injury lawyers delegate virtually all tasks, except depositions and court appearances, to paralegals or secretaries.”

“We have the office broken into teams, so I have a team,… On my team I have 2 junior partners…as well as an associate…so we’re the lawyers on the team. We have 4 accident benefit coordinators…so they deal with first party benefit claims…there are 3 law clerks who do the clerking so they work on litigation, the tort side of the files, and then we have 7 legal assistants. So that’s people that are just strictly who are 100% working on my team. And the new have a bunch of shared staff. We have a directors of operations and her department – they do the administrative, the accounting. There’s a marketing group involved in the marketing of the firm. They staff firm events.” (Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015)).

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

See comments from YY in note 495, above. Ottawa litigator D2 asked “What’s the way in which I could systematize some sort of intake system that gives people the right information, meets the need of people but also allows me to assess and take on the files that are right for my practice?” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016)).

In the personal injury firms where he previously worked, BB said that “clerks would get a rough feel for some clients, the more marginal ones. I think if someone called in and said ‘oh I broke my hip’ or something like that, then the lawyer would get involved right away, because for sure that would be a case that the firm would take. But if it was more marginal then a clerk would do the front end of that. “ (Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015))

MM: “We decided about 10 years ago to hire a person to devote strictly to the process of handling incoming inquiries, not the receptionist, but someone who would be trained to know key things to undertake those preliminary analyses of the case. That person’s function is solely to either help people be sent somewhere else if they have a problem that we were not suited to handle or broaden the office if it is a situation [to which] we thought we could add value.” (Interview with “MM” (Personal injury practitioner, Windsor, male, 36 years since call to the bar. Interviewed June 9, 2015)). VV: “we don’t deal directly with the intakes… the office receptionist/administrator, she handles a lot of the calls…[she takes calls after hours for] clients who are looking for firms after work…we figured that would be a great way that people can actually speak with someone.” (Interview with “VV” (Personal injury practitioner, Toronto, female, 3 years since call to the bar. Interviewed July 17, 2015)).

“It doesn’t make sense at a certain level of business to do everything yourself. Your niche is as a lawyer, your skill set is as a lawyer, you should be spending the majority of time doing lawyer work… it makes sense to share assistance, support staff, to hire students… hire a bunch of immigration consultants… putting something together that makes sense as a business” (Interview with “AA” (Immigration and refugee law practitioner, Toronto, male, 1 year since call to the bar. Interviewed April 13, 2015) ). Interviewee D2 said “partnered with a paralegal, I could have done a lot more work. I could have provided a lot more work to community members and probably could have altered my involvement with the file so that my involvement had best value and the person I was working with would have been able to do more of the front end stuff.” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016)).

Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) at 40, 54.

Ibid. at 71.

Ibid. at 21.

See section 6.6.2, below. See also Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> .

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015).

Ntd OED, definition 3©(a). Advocating the use of systems in personal plight law firms, see Lee Rosen, “How Dog Poop and Law Firms Are Alike” (2015), online: <https://divorcediscourse.com/how-dog-poop-and-law-firms-are-alike/> (last accessed: 26 April 2017). Rosen argues that “Everything we do more than once can be integrated into a documented system or process

Richard E. Susskind, Tomorrow’s lawyers : an introduction to your future (Oxford, United Kingdom: Oxford University Press, 2013) at 25; Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015); Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) at 69; Ann Juergens, “Toward a More Effective and Accessible Solo and Small Firm Practice Model” in Estreicher & Radice eds., Beyond Elite Law: Access to Civil Justice in America (New York: Cambridge University Press, 2016) at 387.

CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 20; William T. Hogan, “Re: Issues on the Future of Legal Services (Letter to The ABA Commission on the Future of Legal Services, December 20, 2014),” <https://www.americanbar.org/content/dam/aba/images/office_president/delivery_of_legal_services.pdf> at 8: “The Committee, however, is focused more on technology as a tool that facilitates lawyers to provide their personal legal services faster, cheaper and more efficiently. “

Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) at 125 See also Daniel Martin Katz’ suggestion that in legal services, as in other fields, “ensembles” of humans and machines will increasingly replace reliance on individual human experts. (Daniel Martin Katz, “Observations Regarding Innovation in the Legal Industry (Slideshare, Sep 20, 2015),” <http://www.slideshare.net/Danielkatz/law-tech-design-delivery-observations-regarding-innovation-in-the-legal-industry-professor-daniel-martin-katz/173-InternetofContractswhich_is_a_special_case> at slides 172-3.

Daniel Martin Katz, “Quantitative Legal Prediction – or – How I Learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal Services Industry” (2013) 62 Emory Law Journal 909; John O. McGinnis and Russell G. Pearce, “The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services,” (2014) 82 Fordham Law Review 3041

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 178-9.

4. Ibid

Richard E. Susskind, Tomorrow’s lawyers : an introduction to your future (Oxford, United Kingdom: Oxford University Press, 2013) at 25.

Ibid. at 25.

Dina Tutungi, Dina Tutungi, Slater and Gordon Lawyers. Interview conducted by Laura Snyder. (Paris: Not Just for Lawyers, 2017) online: NJFL <http://notjustforlawyers.com/dina-tutungi/> (last accessed: 26 April 2017)

Ibid.

Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016).

The automated interactive form can also allow the client him or herself do more of the work.

Richard E. Susskind, Tomorrow’s lawyers : an introduction to your future (Oxford, United Kingdom: Oxford University Press, 2013) at 26.

Ibid. at 26.

“Online Unfair Dismissal Lawyers (Slater and Gordon),” <https://unfairdismissal.slatergordon.com.au/> (last accessed: 26 April 2017).

Richard E. Susskind, Tomorrow’s lawyers : an introduction to your future (Oxford, United Kingdom: Oxford University Press, 2013) at 27

See e.g. Ray Worthy Campbell, “Rethinking Regulation And Innovation In The U.S. Legal Services Market,” (2012) 9 New York University Journal Of Law & Business 1

Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016). Andrew Grech, CEO of Slater & Gordon, likewise has said that his firm is trying to “commoditize legal process:” Andrew Grech, Andrew Grech, Slater and Gordon Lawyers. Interview conducted by Laura Snyder. (Paris: Not Just for Lawyers, 2017) online: NJFL <http://notjustforlawyers.com/andrew-grech/> (last accessed: 26 April 2017).

Section 6.6.2, below.

Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016).

Jordan Furlong, “9 Emerging truths about legal service delivery (Law Matters [Canadian Bar Association, Alberta Branch], April 2016),” <http://www.cba-alberta.org/Publications-Resources/Resources/Law-Matters/Law-Matters-Spring-2016/9-Emerging-Truths-About-Legal-Service-Delivery> (last accessed: 26 April 2017)

He argued that, with regard to other tasks, the lawyer’s role should be management of non-lawyers rather than frontline service-delivery. (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015))

Richard E. Susskind, Tomorrow’s lawyers : an introduction to your future (Oxford, United Kingdom: Oxford University Press, 2013) at 57.

Sean Rehaag, “The Role of Counsel in Canada’s Refugee Determination System: An Empirical Assessment,” (2011) 49 Osgoode Hall Law Journal 71 at 89

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

In arguing for delegation of routine matters to systems, Lee Rosen observes that “when you’re not busy answering questions from a staff member about how to assemble a trial notebook, you’re freed up to think about the application of the latest case law to the problem you’re trying to solve.” (Lee Rosen, “How Dog Poop and Law Firms Are Alike,” (2015), online: <https://divorcediscourse.com/how-dog-poop-and-law-firms-are-alike/> )

“You need mentoring… because there are actually a lot of little bits of knowledge that you need that are not found in any textbooks or guides that is only passed on by word of mouth, from lawyer to lawyer, or by experience … there’s so much knowledge that’s passed on by mentoring… I didn’t really have mentoring, so I was at a significant disadvantage, and I didn’t really want to practice on the clients” (Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015)). See also Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015).

Lori L. Keating and Amy Timmer, “Mentoring: No App for That” in Paul A. Haskins ed., The Relevant Lawyer (Chicago: American Bar Association, 2016): “mentoring is essential to preserving a feeling of community among lawyers, as well as to conveying and teaching expectations of compettence, civility, and professionalism.”

Regarding unbundling, see Chapter 4, above.

Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015).

(ibid.)

Sean Rehaag, “The Role of Counsel in Canada’s Refugee Determination System: An Empirical Assessment,” (2011) 49 Osgoode Hall Law Journal 71. See also Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) at 125. In addition to practicing as a family lawyer, interviewee EE has also served as a Bencher of the Law Society of Alberta. From that point of view, he observed what he considered a consequence of over-delegation in real estate practice: “as a regulator, I’ve seen, for example in the area of real estate … lawyers want to make easy money without doing the work. So they delegate things to a greater extent than is reasonable… But I think there’s a happy median where we can have assistants do more independent work reducing costs to clients.” (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015))

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

Ibid..

Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015).

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015).

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015).

Ibid..

Federation of Law Societies of Canada, “Model Code of Professional Conduct,” <http://flsc.ca/national-initiatives/model-code-of-professional-conduct/> at 6.1-1/

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015).

Ibid.

ntd Chapter 1

Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> .

Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) at 122-124; CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 20. As family lawyer JJ put the point,: “The size of files we’ve got here, mostly you’re going to manage them yourselves and it’s going to be that one on one relationship with your client. I don’t tend to find a lot of economies of scale.” (Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015))

For example, Integreon and Deloitte Legal Project Solutions.

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015).

E.g. the “salvation” mode of personal plight legal practice: see 5.4.3.1, above.

Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015).

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015).

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016). That criminal defence lawyers are less likely to delegate than other personal plight litigators was also reported in Jerry Van Hoy’s study: Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) at 16. See also the comments of personal injury lawyer WW: “if you’re an advocate and you advocate for that individual, I almost become a family member. By the time we’re in court I know everyone in the family. I know every witness, I’ve met with everybody. You can’t replace that with economies of scale.” (Interview with “WW” (Personal injury practitioner, Toronto, female, 13 years since call to the bar. Interviewed July 20, 2015))

5. A2 ntd

F2: “ litigation is the one area that is going to be very difficult to commoditize… “: “ Generally with contention, workflow is difficult to do. It’s just a bit trickier and that’s why it’s taking longer. “ Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016)).

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Doug Jasinski, “Stars in Their Eyes: the Growing Influence of Online Lawyer Reviews (Slaw.ca, June 20^th 2016),” <http://www.slaw.ca/2016/06/20/stars-in-their-eyes-the-growing-influence-of-online-lawyer-reviews/> (last accessed: 26 April 2017).

Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) at 122

David Stager and H. W. Arthurs, Lawyers in Canada (Toronto: Published in association with Statistics Canada by University of Toronto Press, 1990) 226-7 and Frank Stephen, Lawyers, Markets and Regulation (Cheltenham, UK: Edward Elgar, 2013) at 7 and 45–6

“What we need to do is find better ways to leverage staff to help us get there. As opposed to us doing all the work … I think doing too much as opposed to too little is, my opinion, is more typical than atypical.” (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015)).

Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

According to QQ, “the billable model… motivates us maybe to do work that maybe an assistant can do or could be outsourced. Not to say it is unethical or wrong either way, but there’s different motivations at play and there are different demands from clients.” (Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015))

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 271

Ann Macaulay, “The Billable Hour—Here to Stay? (Canadian Bar Association PracticeLink March 12, 2014),” <http://www.cba.org/Publications-Resources/CBA-Practice-Link/solo/2014/The-Billable-Hour—Here-to-Stay>.

“Some of the stuff [my assistant] does is just billed under my hourly rate. But I also talk to my clients – and I’ve probably done it more in recent years – and I’ll say to them directly, certain things I can do, but I have a clerical assistant, a legal assistant who can do it well under my supervision and I charge her around $125 an hour as opposed to my $500 an hour. I will make judgement calls on when that’s appropriate, ‘do you have a problem with that?’ Unanimously my clients are happy … having someone [else] do … some of the tedious stuff. … So when she’s working independent of me, I’ll bill her time independently and transparently to the clients. And I think it is good for them. I think, to be honest I think it’s a big part of where family law needs to go. I don’t think as a practice we’re doing it extremely well.” (Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015))

Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) at xvii.

Tim Lemieux, “Is Anyone Listening? (PracticePRO Magazine, Volume 10, Issue 2, Fall 2011),” ; see also Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants.” (Kingsville, Ontario: Process, 2013), online: <http://representingyourselfcanada.com/2014/05/05/research-report/> at 45-6, who found many ex-clients dissatisfied by communication with their former law firms.

Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants.” (Kingsville, Ontario: Process, 2013), online: <http://representingyourselfcanada.com/2014/05/05/research-report/> at 46: “There is an extraordinarily widespread sentiment among many respondents that their former legal counsel did ‘nothing’ to advance their case towards a realistic outcome. The word ‘nothing’ appears repeatedly throughout the interview transcripts – for example, ‘nothing happened’; ‘my lawyer did nothing’; ‘nothing had been done;’ ‘nothing was resolved.’” See also Interview with “GG” (Family law and poverty law practitioner, Nanaimo, female, 32 years since call to bar. Interviewed May 11, 2015); Interview with “B2” (Civil litigation practitioner, Toronto, female, 4 years since call to the bar. Interviewed September 4, 2015).

Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 142. The ubiquity of electronic communication has arguably increased client expectations for one-on-one lawyer communication today, especially via email. See also Julie Macfarlane, “The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants.” (Kingsville, Ontario: Process, 2013), online: <http://representingyourselfcanada.com/2014/05/05/research-report/> at 45: “Many SRLs described difficulty getting updates from their lawyer as the weeks and months ticked by, despite repeated efforts to contact them.”

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015).

Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015).

Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015).

PP: “One of the best things the Law Society ever did is make sure everybody understood as a lawyer to copy your client. When I started out that wasn’t the norm. Then it became if you did file review with the Law Society you had to show you sent your client a copy. A basic way to communicate.” (ibid.).

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 176

Sean Doherty, “Client Portals In Clio,” <http://abovethelaw.com/2015/11/client-portals-in-clio/> (last accessed: 26 April 2017); Donna Seyle, “Expand Your Solo or Small Firm Practice Using Client Portals By (Law Practice Today, December 2011),” <http://www.americanbar.org/content/dam/aba/publications/law_practice_today/expand-your-solo-or-small-firm-practice-using-client-portals.authcheckdam.pdf> (last accessed: 26 April 2017).

Time costs also confront a lawyer who wants to try to train an existing staff person to take on more advanced tasks. See for example the comments of E2. Referring to his time-based billing practice, E2 said “I’m on the hamster wheel too.” He praised his assistant, but acknowledged that she was not “working at the level where she probably could. And the problem now is she’s probably 5 years from retirement and we don’t have another ‘her’ set up in our office to really start doing that. And to be honest I don’t know how far I’m from retirement so I’m not sure I’m inclined to want to completely get off the wheel to train somebody else.” Also acknowledging that a time investment would be necessary to take advantage of her clerk’s full capacity, see Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015).

Interview with “E2” (Family law practitioner, Alberta, male. 19 years since call to the bar. Interviewed April 21, 2015).

Above notes 532 to 525 and accompanying text.

http://notjustforlawyers.com/dina-tutungi/

ntd

Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015)

Richard Moorhead, “Lawyer Specialization–Managing the Professional Paradox” (2010) 32 Law & Policy 226 at 230.

John P. Heinz and Edward O. Laumann, Chicago Lawyers : the Social Structure of the Bar (New York: Russell Sage Foundation and American Bar Foundation, 1982) ; John P. Heinz et al., Urban Lawyers: The New Social Structure Of The Bar (Chicago: University of Chicago Press, 2005) at 71-2; Harry W. Arthurs, “Will the Law Society of Alberta Celebrate its Bicentenary?,” (2008) 45 Alberta Law Review 15, online: <http://digitalcommons.osgoode.yorku.ca/scholarly_works/857/> ; Ronit Dinovitzer et al., After the JD II: Second Results from a National Study of Legal Careers (Chicago: American Bar Foundation and The NALP Foundation for Law Career Research and Education, 2009) online: University of Denver < at 32; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 98-99.

Sole Practitioner and Small Firm Task Force (Law Society of Upper Canada), Final Report (Toronto: LSUC, 2005) online: LSUC <http://www.lsuc.on.ca/media/convmar05solepractitioner.pdf> (last accessed: 26 April 2017) at 42:

Ronit Dinovitzer, “Law And Beyond: A National Study Of Canadian Law Graduates.” (Toronto: U, 2015), online: <http://individual.utoronto.ca/dinovitzer/images/LABReport.pdf> at 25.

E.g. Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015).

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

Richard Moorhead, Richard Harding and Avrom Sherr, Quality and access: Specialist and tolerance work under civil contracts (London: The Stationery Office., 2004) online: The Stationery Office <, cited in Richard Moorhead, “Lawyer Specialization–Managing the Professional Paradox,” (2010) 32 Law & Policy 226. The lawyers whom they studied were providing legally-aided advice on personal plight matters (specifically debt, housing, and welfare benefit disputes). Trained peer reviewers compared the files of specialist firms with those of non-specialists. Specialty certification had been conferred on these firms by the legal aid provider

Richard Moorhead, “Lawyer Specialization–Managing the Professional Paradox,” (2010) 32 Law & Policy 226 at 238

Ibid at 240. The peer reviewers also rated file quality, and again found specialists outperforming other solicitors. (at 242)

Ibid.

Herbert M. Kritzer, “First thing we do, let’s replace all the lawyers” : a comparison of lawyers and nonlawyers as advocates (Madison: Institute for Legal Studies, University of Wisconsin-Madison, 1995); Herbert Kritzer, Legal advocacy : lawyers and nonlawyers at work (Ann Arbor: University of Michigan Press, 1998).

Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015)

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 98.

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016); Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015).

Richard Moorhead, “Lawyer Specialization–Managing the Professional Paradox,” (2010) 32 Law & Policy 226 at 243.

David Stager and H. W. Arthurs, Lawyers in Canada (Toronto: Published in association with Statistics Canada by University of Toronto Press, 1990) 167: “increasing knowledge of the field enables a practitioner to deal with any given issue more quickly.” See also 195-6 in this volume regarding the effect of specialization in lowering service price.

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

Ibid..

Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015).

Ibid..

“The other way you are always having to learn. You always have to know what the current law is and you are doing a lot of research. … That’s how I am feeling now – overwhelmed. I am having to research everything I do. I’m finding with a bit more focus on the family law, I’m starting to feel like I learned a lot more and I have a better handle on what should be happening and what I can do for my clients.” (Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015)). See also Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015).

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015); Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016). CC said “the practice of law has changed. When [the firm] got started, you could almost do everything. We did almost do everything.” But at end of his career, CC did only estate litigation and family law. (Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015)) See also Sole Practitioner and Small Firm Task Force (Law Society of Upper Canada), “Final Report.” (Toronto: LSUC, 2005), online: <http://www.lsuc.on.ca/media/convmar05solepractitioner.pdf> at 42.

“…if you are in one specific area everything is going to be geared to that. All of your software is geared to that. I think when you work one area it is a lot easier to learn the law, so you can get faster at doing it. “ (Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015)) See also Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015)..

“The sole and small practitioner doesn’t like taking on the head scratching stuff. It’s not efficient…it’s a waste of your time where you make your efficiencies is doing your routine and doing the work very familiar to you and with your peers. So much leverage is exerted with opposing counsel and the decisions makers and the reputation you’ve established with them and your ability to move forward more quickly as you become better known.” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016))

“As soon as I cut out family law my income skyrocketed. Because I was able to do what I really like to do and that’s personal injury law.” (Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015))

Lee Rosen, “When Is the Right Time to Narrow Your Focus?,” <https://divorcediscourse.com/right-time-narrow-focus/?utm_campaign=coschedule&utm_source=twitter&utm_medium=LeeRosen&utm_content=When%20Is%20the%20Right%20Time%20to%20Narrow%20Your%20Focus%3F> (last accessed: 26 April 2017).

Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) at 43; Marc Galanter, “Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change,” (1974) 9 Law & Society Review 59, online: <jan.ucc.nau.edu/~phelps/Galanter%201974.pdf>

Herbert M. Kritzer, Risks, reputations, and rewards : contingency fee legal practice in the United States (Stanford, Calif.: Stanford University Press, 2004) at 222. Along the same lines were the comments of SS: “Insurance lawyers, all the defence lawyers know this is a guy who will or won’t go to trial.” Therefore, SS suggested, many generalists therefore never get good offers for their clients because “they just settle. They settle every single case.” (Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015)).

Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015).

Ibid..

Ted Schneyer, “Empirical Research with a Policy Payoff: Market Dynamics for Lawyers Who Represent Plaintiffs for a Contingent Fee” (2002) 80 Tex. L. Rev. 1829 at 1833.

Donald D. Landon, Country Lawyers: The Impact of Context on Professional Practice (New York: Praeger Publishers, 1990) at 47

Interview with “CC” (Family law and estate litigation practitioner, Toronto, male, 44 years since call to the bar. Interviewed April 16, 2015); Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015); Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015); Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015).

Richard Moorhead, “Lawyer Specialization–Managing the Professional Paradox,” (2010) 32 Law & Policy 226 at 250.

Section 2.2.1, above.

See note 39, above.

Noel Semple, “Personal Legal Services: Mending the Market (Working Paper, April 2017),” <https://ssrn.com/abstract=2958845>.

Interview with “UU” (Personal injury practitioner, Toronto, female, 4 years since call to the bar. Interviewed July 17, 2015).

“The Law Superstore,” <https://www.thelawsuperstore.co.uk> (last accessed: 26 April 2017)

“Law Society Referral Service,” <https://lsrs.lsuc.on.ca> (last accessed: 26 April 2017) Two interview respondents said that the LSUC lawyer referral service has been a useful source of clients: Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015); Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015).

“Avvo,” <https://www.avvo.com> (last accessed: 26 April 2017)

Ken Le, Peter Nacsa and Rebbecca Phillips, Smart Legal Start: Access To Justice Innovation Challenge Proposal (Ryerson Law Practice Program). Document on file with author. (Toronto: Ryerson University Law Pratice Program, 2016) online: Ryerson University Law Pratice Program <

Pascoe Pleasence et al., “Multiple Justiciable Problems: Common Clusters and Their Social and Demographic Indicators” (2004) 1 Journal of Empirical Legal Studies 301; Ab Currie, The Legal Problems of Everyday Life: The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Ottawa 2007) online: Department of Justice Canada <http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr07_la1-rr07_aj1/rr07_la1.pdf> (last accessed: 26 April 2017) at Chapter 5; Law Commission of Ontario, “Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity.” (Toronto: LCO, 2013), online: <http://www.lco-cdo.org/family-law-reform-final-report.pdf>.

Richard Moorhead, “Lawyer Specialization–Managing the Professional Paradox,” (2010) 32 Law & Policy 226 at 227

Donald D. Landon, Country Lawyers: The Impact of Context on Professional Practice (New York: Praeger Publishers, 1990) at 28; Richard Moorhead, “Lawyer Specialization–Managing the Professional Paradox,” (2010) 32 Law & Policy 226.

Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015). In a metropolis it is possible to specialize even more narrowly, for example in a family law sub-niche such as religious family law.

Law Society of Upper Canada Sole Practitioner and Small Firm Task Force, Final Report (Toronto: 2005) online: Law Society of Upper Canada <http://www.lsuc.on.ca/media/convmar05solepractitioner.pdf> (last accessed: 26 April 2017) at 45. See also Donald D. Landon, “Law Careers and Community Context: A Comparison of Rural and Urban Experience” (1992) 49 Great Plains Research: A Journal of Natural and Social Sciences, online: <http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1048&context=greatplainsresearch> (last accessed: 26 April 2017)

Karen Cohl and George Thomson, Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services (Toronto: Law Foundation of Ontario, 2008) online: LFO <

“Cultural competence is a set of congruent behaviors, attitudes, and policies that [enable] professionals to work effectively in cross-cultural situations.” (T. Cross et al., Towards A Culturally Competent System of Care: Volume I (Washington, DC: The National Technical Assistance Center for Children’s Mental Health, 1989)). See also Rose Voyvodic, “Lawyers Meet the Social Context: Understanding Cultural Competence” (2005) 84 Can. Bar Rev. 563 and Faisal Bhabha, “Towards a Pedagogy of Diversity in Legal Education” (2014) 52 Osgoode Hall Law Journal 59, online: <digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=2792&context=ohlj> (last accessed: 26 April 2017).

This may extend to non-legal services. Donald Landon, comparing urban and rural lawyers, suggested that the rural bar “appeared to devote more time to what they called ‘handholding’ with their clients. Their offices were models of accessibility: their doors were usually open, with or without appointment. And they spent a considerable proportion of their time in general counselling: about family problems, children’s troubles, business difficulties, and moral dilemmas.” (Donald D. Landon, Country Lawyers: The Impact of Context on Professional Practice (New York: Praeger Publishers, 1990) at 128).

Karen Cohl and George Thomson, “Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services.” (Toronto: Ontario, 2008) at 39

Jamie Baxter and Albert Yoon, “No Lawyer for a Hundred Miles? Mapping the New Geography of Access of Justice in Canada” (2014) 52 Osgoode Hall Law Journal 9.

Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf> at 14-15: “ Future solos will be niche specialists rather than broad generalists… They will draw clients not just from across town, but also across the country.” See also Lucille A. Jewel, “The Indie Lawyer of the Future: How New Technology, Cultural Trends, and Market Forces Can Transform the Solo Practice of Law” (2015) XVII SMU Science and Technology Law Review 325, online: <http://ssrn.com/abstract=2622242> (last accessed: 26 April 2017), regarding the potential for lawyers to access the niche “long-tail markets” enabled by the internet.

In this model, the locally-embedded professional would not necessarily have to be a lawyer.

Julian Franch has suggested that accountants in rural areas could be sources of referral and collaboration with urban specialist lawyers: Julian Franch, “Small Law Firm Revenue Generation Through Strategic Networking In Rural Communities (Unpublished mauscript, on file with the author)” (2016)

David Stager and H. W. Arthurs, Lawyers in Canada (Toronto: Published in association with Statistics Canada by University of Toronto Press, 1990) at 167.

Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015)

Mick Hassell, “Self Service Litigation Garage,” <http://www.litigationgarage.ca/Litigation_Garage/Self_Service_Litigation_Garage.html>.

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016).

Regarding the costs confronting clients who civil justice, see Noel Semple, “The Cost of Seeking Civil Justice in Canada,” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016> .

Mather et al 2001 at 165-6. See also Mather et al 2001 at 168, reporting sharp divergences among interviewed lawyers re whether they like being in court. Some said they love trials, others said they were not fighters by instinct, but rather were peacemakers.

Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016).

Federation of Law Societies of Canada, “Model Code of Professional Conduct,” <http://flsc.ca/national-initiatives/model-code-of-professional-conduct/> at 3.6-6 and 3.6-7. There are three conditions on lawyer-to-lawyer referral fees in the Model Code Rule which has been adopted in most provinces. First, the referral fee must be paid “because of the expertise and ability of the other lawyer to handle the matter” not because of a conflict of interest. Second, the referral fee must be “reasonable,” and “not increase the total amount of the fee charged to the client.” Third, the client must be informed of the fee by the referred-to firm, and must consent to the payment.

Ibid. at Rule 3.6-7.

Shannon Kari, “The battle for the personal injury dollar (Canadian Lawyer, November 12, 2012),” <http://www.canadianlawyermag.com/4402/The-battle-for-the-personal-injury-dollar.html> (last accessed: 26 April 2017)

Shannon Kari, “The battle for the personal injury dollar (Canadian Lawyer, November 12, 2012),” <http://www.canadianlawyermag.com/4402/The-battle-for-the-personal-injury-dollar.html>

In a time-billed matter, unfortunately there is no necessary correlation between the fee collected by the referred-to firm and the success of the client.

Professional Regulation Committee (Law Society of Upper Canada), Advertising and Fee Arrangements Issues Working Group Report (Report to Convocation February 23, 2017) 2017)https://www.lsuc.on.ca/uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2017/2017-Feb-Convocation-Professional-Regulation-Committee-Report.pdf> (last accessed: 26 April 2017) at 62.

For referral fees calculated on a percentage basis for contingency-billed work, a cap of 5% or 10% of the service-providing firm’s fee might be appropriate. Noel Semple, Submission to the LSUC Advertising & Fee Arrangements Issues Working Group Report (Toronto: SSRN, 2016) online: SSRN <https://ssrn.com/abstract=2954124> (last accessed: 26 April 2017)

Professional Regulation Committee (Law Society of Upper Canada), “Advertising and Fee Arrangements Issues Working Group Report (Report to Convocation June 23, 2016).” 2016), online: <https://www.lsuc.on.ca/uploadedFiles/Professional-Regulation-Committee-Report-Convocation-June-2016.pdf>; Noel Semple, “Submission to the LSUC Advertising & Fee Arrangements Issues Working Group Report.” (Toronto: SSRN, 2016), online: <https://ssrn.com/abstract=2954124>.

Andrew Grech, “Andrew Grech, Slater and Gordon Lawyers. Interview conducted by Laura Snyder.” (Paris: Lawyers, 2017), online: <http://notjustforlawyers.com/andrew-grech/>.

Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) at 132-3

“When I was at the firms there was always a firm bookkeeper, so they did books for my stuff too. I never considered that person as working ‘under’ me.” (Interview with “PP” (Child protection and family law practitioner, Windsor, female, 30 years since call to the bar. Interviewed June 10, 2015)).

CBA Access to Justice Committee, “Reaching Equal Justice: An Invitation To Envision And Act.” (Ottawa: CBA, 2013), online: <http://www.cba.org/cba/equaljustice/secure_pdf/Equal-Justice-Report-eng.pdf> at 93: “growing understanding that legal problems are often intertwined with non-legal problems has led to a demand for more holistic approaches that meld legal and non-legal services.”

Ibid. at 95. “Teams,” the report argues, “can deliver more comprehensive and holistic services tailored to people’s needs.”

This firm is not currently practicing in Canada.

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

James E. Moliterno, The American Legal Profession in Crisis: Resistance and Responses to Change (New York: Oxford University Press, 2013) at 162; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 164

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 62-64.

Ntd Snyder, LMR,

“It’s very onerous to administer a trust account… because your bank can’t levy fees from the trust account… it has to come out of your other account because your money comes from your client ….it requires exquisitely careful bookkeeping which you don’t have which you paying someone to do. So you have paper work, so every time you have a trust transfer you do a bill. There’s a delivery component, the Law Society requires proof every time you deliver it to a client…it requires a written document… in the context of small amounts of money for small files it’s really onerous.” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016)).

Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) at 129

“Typically the average lawyer in the region are less sophisticated in terms of their ability to manage their practice. So if you help them build better management practice and centralize the accounting, it is for them an added value.” (Interview with “ZZ” (Montreal, male. Interviewed April 5, 2015).). See also Landon 1990 at 52, describing small and solo rural law practices: “the practitioner must proceed under a double imperative—building a practice while needing to earn a living. Creating a niche for oneself in a market already served by other practitioners requires deliberate strategy and strong initiative.”

: Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) at 129 ; http://fortune.com/2013/01/11/why-are-lawyers-such-terrible-managers/

“Management, payment of things, keeping on top of things, technology… All of that takes a lot of time, so if you devote your day working hours to developing a website as opposed to farming that out, that to me is not a good efficiency. You’re not a good businessperson. It’s cheaper to hire somebody. Many lawyers choose to do it themselves because they think they are saving money” (Interview with “AA” (Immigration and refugee law practitioner, Toronto, male, 1 year since call to the bar. Interviewed April 13, 2015) ).

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016).

Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015).

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015).

Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015) ; Interview with “AA” (Immigration and refugee law practitioner, Toronto, male, 1 year since call to the bar. Interviewed April 13, 2015) ; Interview with “TT” (Family law practitioner, Greater Toronto Area, male, 22 years since call to the bar. Interviewed July 9, 2015).

Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> at 44. Social science research suggests that larger law firms offer higher earnings, promotional opportunities, and challenging work: see e.g. Fiona M. Kay and Jean E. Wallace, “Are Small Firms More Beautiful or Is Bigger Better? A Study of Compensating Differentials and Law Firm Internal Labor Markets” (2009) 50 The Sociological Quarterly 474. In her survey of Canadians recently called to the bar, Ronit Dinovitzer found that the proportion who were happy that they had become lawyers generally increased with the size of the firms in which they worked: Ronit Dinovitzer, “Law And Beyond: A National Study Of Canadian Law Graduates.” (Toronto: U, 2015), online: <http://individual.utoronto.ca/dinovitzer/images/LABReport.pdf> at 39) The lowest rate of reported satisfaction in Dinovitzer’s survey was among those working as sole practitioners.

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015).

Jordan Furlong, “Why law firms need R&D investment (Law21, August 19, 2014 ),” <http://www.law21.ca/2014/08/law-firms-need-rd-investment> (last accessed: 26 April 2017).

Ibid..

Barreau du Québec, “La tarification horaire à l’heure de la réflexion.” (Quebec: BDQ, 2016), online: <http://www.barreau.qc.ca/pdf/publications/2016-rapport-tarification.pdf> at 15.

For example, DD’s personal plight law firm retained market research consultants to study the needs of separating people before expanding into family law services: Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015). See also Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 174-9.

Richard E. Susskind, Tomorrow’s lawyers : an introduction to your future (Oxford, United Kingdom: Oxford University Press, 2013) at 113; Richard Susskind and Daniel Susskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (New York: Oxford, 2015) at 266.

ntd a2

Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016).

Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 38. Emphasis added. “Careful and considered development of an appropriate business model is needed … development that reduces overheads and maximizes efficiencies which can, in turn, be passed on to clients.”

Non-lawyers are currently forbidden to have ownership interests in law firms, or be equal partners with lawyers in them. Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 61-65 and 158-161. See also CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 33-4.

Section 9.1, above.

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 158-161.

Chapter Chapter 4 (above) argued that deferring payment often makes personal plight legal services much more accessible to clients.

Chapter ntd, section ntd above.

WW, a Toronto personal injury lawyer, described the significant investment necessary to begin a case even without expert evidence: “okay to open the file for you without considering my fees or my overhead, I have to pay certain things. I have to pay over $100 to get a motor vehicle accident report, additional $68 to get a witness statement and that is not made available at the time of the accident. Then I have to go in terms of issuing a statement of claim, issuing a jury notice – I have to pay. These documents have to be served personally so I hire a processor. I spend my own money because majority of people don’t have money to pay for that. They are already suffering. Their income is in jeopardy. They pay for transportation to clinics, take time off and have no extra income to pay for any of this. At the very minimum we are looking at 2.5-3 thousand dollars out of my own pocket, not calculating my fees. Okay for me to prove your case I will need you to be looked at by a doctor, but in order for me to do that I have to gather all of your medical records from way before the accident and now, how did you mitigate your losses, what investigations have been done, where are the diagnoses. Then we are looking at additional fees for clinical records, which range anywhere from 250-450 dollars. When I collect all of that plus prescriptions from pharmacies we are looking at an additional 3-4 thousand dollars. We are at the 6 thousand mark and I don’t have an expert opinion.” (Interview with “WW” (Personal injury practitioner, Toronto, female, 13 years since call to the bar. Interviewed July 20, 2015)).

Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015).

Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015).

Interview with “RR” (Personal injury and general civil litigation practitioner, Chatham, male, 31 years since call to the bar. Interviewed June 11, 2015)

Waye puts the argument as follows: “corporatised law firms underwritten by private equity and hedge funds are likely to be more proactive users of sophisticated financial and risk shifting solutions than the fully owned partnerships that historically dominated the legal profession, and continue to dominate the legal profession in the united States.” (Vicki Waye, “Litigation Risk Transfer and Law Firm Financial Arrangements,” (2015) 17 Legal Ethics at 113).

Nora Freeman Engstrom, “Run-of-the-Mill Justice,” (2009) 22 Georgetown Journal of Legal Ethics 1485; Nora Freeman Engstrom, “Lawyer Lending: Costs And Consequences” (2014) 63 DePaul L. Rev. forthcoming; Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) ; Nora Freeman Engstrom, “Lawyer Lending: Costs And Consequences,” (2014) 63 DePaul L. Rev. forthcoming; Nora Freeman Engstrom, “Run-of-the-Mill Justice,” (2009) 22 Georgetown Journal of Legal Ethics 1485 at 66.

Interview with “SS” (Personal injury practitioner, Toronto, male, 20 years since call to the bar. Interviewed June 17, 2015).

Jasminka Kalajdzic, Peter Cashman and Alana Longmoore, “Justice for Profit: A Comparative Analysis of Australian, Canadian and U.S. Third Party Litigation Funding,” (2013 ) 61 American Journal of Comparative Law 93; Law Society of Alberta, Law Society of Manitoba and Law Society of Saskatchewan, Innovating Regulation (Edmonton, Winnipeg, Regina: LSM LSA, LSS, 2015) online: LSS <http://www.lawsociety.sk.ca/publications/innovating-regulation.aspx> (last accessed: 26 April 2017) at 48; Sunny Freeman, “This company lends money to pay for your divorce (Toronto Star, April 19, 2016),” <https://www.thestar.com/business/2016/04/19/this-company-lends-money-to-pay-for-your-divorce.html> (last accessed: 26 April 2017).

Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) at xix

Short of full liberalization of ownership rules on the UK/Australian model, regulators can also permit non-lawyer investment with conditions pertaining to the proportion of shares that can be held by non-lawyers, or the requirement that alternative business structure firms pursue goals other than the maximization of profit: Gail E Henderson, “Could Community Contribution Companies Improve Access To Justice?,” (2016) 94 Canadian Bar Review, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=12%2f01%2f2016> , David Wiseman, “Access to Justice and Legal Profession Regulation in Canada: to ABS, to not ABS, or to ABS+?” (2015) 18 Legal Ethics 78, Law Society of Upper Canada, Alternative Business Structures Working Group Report (Toronto: 2015) online: LSUC <http://www.lsuc.on.ca/uploadedFiles/ABS-full-report.pdf> (last accessed: 26 April 2017).

This is currently illegal. North American legal services regulation currently forbids non-lawyers to own or manage law firms or to be equal partners with lawyers within them.

The author’s view is that, with regard to personal plight legal services, this day when off-shoring or technology replaces domestic professionals is far in the future: Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> ; Section 2.3.1 above.

Noel Semple, “Personal Plight Legal Services and Tomorrow’s Lawyers,” (2014) Journal of the Legal Profession 25, online: <ssrn.com/abstract=2436438> .

Mitch Kowalski, Avoiding extinction : reimagining legal services for the 21^st century (Chicago, Ill.: American Bar Association, 2012) at 150.

See section 8.2, above. Regarding the economic opportunities that non-lawyer investment could create for lawyers, see Stephen Gillers, “What We Talked about When We Talked about Ethics: A Critical View of the Model Rules” (1985) 46 Ohio State Law Journal 243.

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015).

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 61 et seq.

John S. Dzienkowski and Robert J. Peroni, “Multidisciplinary Practice and the American Legal Profession: A Market Approach To Regulating The Delivery Of Legal Services In The Twenty-First Century,” (2000) 69 Fordham Law Review 83.

CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf>; Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf>.

Ryerson Legal Information Zone, “About,” <http://www.legalinnovationzone.ca/about-us/>; Mars Discovery District, “LegalX Cluster,” <https://www.marsdd.com/our-sectors/information-and-communications-technology/legalx-cluster/>. See also Mitch Kowalski, “Innovation finally sprouts in Canada’s legal garden following a pessimistic February (Financial Post, May 24, 2016),” <http://business.financialpost.com/legal-post/innovation-finally-sprouts-in-canadas-legal-garden-following-a-pessimistic-february> (last accessed: 26 April 2017).

E.g. Gillian Hadfield, “Equipping the Garage Guys in Law” (2011) 70 Maryland Law Review 484; Renee Newman Knake, “Cultivating Learners Who Will Invent the Future of Law Practice: Some Thoughts on Educating Entrepreneurial and Innovative Lawyers “ (2012) 38 Ohio Northern University Law Review 847. For survey data on Canadian lawyers’ perceptions of their firms innovativeness, see Aly R Háji, The Illusion of Innovation at Canadian Law Firms (Montreal: Juniper, 2017) online: Juniper <https://jnper.com/wp-content/uploads/2017/01/Law-Firm-Innovation-1.pdf> (last accessed: 26 April 2017) and Mitch Kowalski, “McGill study reveals the ‘illusion’ of innovation at Canadian law firms (Financial Post, January 26, 2017),” <http://business.financialpost.com/legal-post/mitch-kowalski-mcgill-study-reveals-the-illusion-of-innovation-at-canadian-law-firms> (last accessed: 26 April 2017); Centre for Innovative Justice, “Affordable Justice.” (Melbourne: University, 2013), online: <mams.rmit.edu.au/qr7u4uejwols1.pdf> at 23-24; Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf> at 18

CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 36. See also Mitch Kowalski, “Time for a Canadian-Based Think Tank on Legal Innovation and Competitiveness (slaw.ca, January 25^th 2013),” <http://www.slaw.ca/2013/01/25/time-for-a-canadian-based-think-tank-on-legal-innovation-and-competitiveness/> (last accessed: 26 April 2017).

Michael Trebilcock, “The Price of Justice” in Farrow & Jacobs eds., The Cost and Value of Justice (Vancouver: University of British Columbia Press, 2018) at Section 4.

Jordan Furlong, “Why lawyers don’t innovate (Law21, August 20^th, 2013),” <http://www.law21.ca/2013/08/why-lawyers-dont-innovate/>; Gillian K. Hadfield, “The Cost of Law: Promoting Access to Justice through the Corporate Practice of Law,” (2014) 38 International Review of Law and Economics 43. In earlier work, Furlong devastatingly describes lawyers as “knowledgeable, creative and trustworthy professionals who, unfortunately, suffer from poor business acumen, terrible management skills, wildly disproportionate aversion to risk, outsized revenue expectations, and a business model about 25 years out of date” (Jordan Furlong, “Goodbye to all that (Law Twenty One, August 26, 2011),” <https://www.law21.ca/2011/08/goodbye-to-all-that/> (last accessed: 26 April 2017)).

Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It (New York: Oxford University Press, 2016) at Chapter 9 (Location 4294 in Kindle version.) Simon Fodden suggests that “the natural tendency …to assume that history will repeat itself, that what has happened yesterday and the day before will happen as well tomorrow and the day after… is all the more the case for a practice and a profession in which the past is a touchstoneof sorts within an intellectual structure — think precedent andthe fact that laws are always matters of history — and for which predictability is an important desideratum.” (Simon Fodden, “Voices of Change: Canadian Social Media and Other Writings on the Future of Legal Practice.” (Ottawa: CBA, 2013), online: <http://www.cba.org/CBAMediaLibrary/cba_na/PDFs/CBA%20Legal%20Futures%20PDFS/Voices-Paper-Summary-Linked-eng.pdf>)

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015); Interview with “EE” (Mortgage lending and residential real estate practitioner, Mississauga, male, 33 years since call to bar. Interviewed May 19, 2015); Interview with “FF” (Family law practitioner, Toronto, female, 5 years since call to bar. Interviewed May 5, 2015); Interview with “BB” (Personal Injury and civil litigation practitioner, Toronto, male, 7 years since call to the bar. Interviewed April 15, 2015); Interview with “EE” (Mortgage lending and residential real estate practitioner, Mississauga, male, 33 years since call to bar. Interviewed May 19, 2015).

E.g. Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015)

CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 26. This reflects the market. Canada has fewer legal professionals per capita than comparable jurisdictions such as the United States and the United Kingdom: Marc Galanter, “More lawyers than people: the global multiplication of legal professionals” in Scott L. Cummings ed., The paradox of professionalism : lawyers and the possibility of justice (Cambridge ; New York: Cambridge University Press, 2011). Hourly fees for personal plight legal services, and presumably lawyer incomes, are higher here than they are south of the border: Noel Semple, “The Cost of Seeking Civil Justice in Canada,” (2015) 93 Canadian Bar Review 639, online: <https://cbaapps.org/cba_barreview/Search.aspx?VolDate=04/01/2016> at 653. For example, KK said: “If you are talking about family law specifically, they come to me because I am new and there is a lack of family law players in Sarnia. Really it is the people that are on legal aid and can’t find someone else that will take legal aid or…that’s really it – they can’t find a lawyer generally.” (Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015)). JJ made similar comments (Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015)). See also Zara Suleman, Not with a ten-foot pole: Law Students’ Perceptions of Family Law Practice. A Report from West Coast LEAF’s Family law Project (Victoria, BC: 2010).

Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) at xx and Chapter 5; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) ; Noel Semple, “Access to Justice: Is Legal Services Regulation Blocking the Path?” (2013) 21 International Journal of the Legal Profession 267, online: <http://ssrn.com/abstract=2303987> (last accessed: 26 April 2017).

Section 8.6, above.

Interview with “F2” (Co-founder of multi-location consumer law firm, Greater Toronto Law Area, male, 14 years since call to the bar. Interviewed August 4, 2016).

Andrew Grech and Tahlia Gordon, “Modern Law Firm Management: Should Non-Lawyer Ownership be Endorsed and Encouraged?” (Sydney, Australia: Consequences, 2015), online: <http://www.researchgate.net/profile/Tahlia_Gordon/publication/276257026_Modern_Law_Firm_Management__Should_non-lawyer_ownership_of_law_firms_be_endorsed_and_encouraged/links/5553283408ae980ca606dc99.pdf>.

CBA Legal Futures Initiative, “Futures: Transforming the Delivery of Legal Services in Canada.” (Ottawa: CBA, 2014), online: <http://www.cbafutures.org/cba/media/mediafiles/PDF/Reports/Futures-Final-eng.pdf> at 41-2; Noel Semple, “Access to Justice: Is Legal Services Regulation Blocking the Path?,” (2013) 21 International Journal of the Legal Profession 267, online: <http://ssrn.com/abstract=2303987> ; Edward Iacobucci and M. J. Trebilcock, “An Economic Analysis Of Alternative Business Structures For The Practice Of Law” (2014) Canadian Bar Review 57 at 97; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 300-303.

Ntd Sole Practitioner and Small Firm Task Force  ; ntd Innovating for Accessibility

“Slater and Gordon Group is a market- leading consumer legal services organisation with 4,640 staff operating in 86 locations across Australia and the UK. “ (Slater & Gordon Group, Annual Report 2016 (Melbourne: Slater & Gordon, 2016) online: Slater & Gordon <https://media.slatergordon.com.au/sgh-2016-annual-report.pdf> (last accessed: 26 April 2017) at 18).

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 161-2.

Gillian K. Hadfield, “The Cost of Law: Promoting Access to Justice through the Corporate Practice of Law,” (2014) 38 International Review of Law and Economics 43; Gillian K. Hadfield, “Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets” (2014) 143 Daedalus 83; Gillian Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It (New York: Oxford University Press, 2016) .

Frank Stephen, Lawyers, Markets and Regulation (Cheltenham, UK: Edward Elgar, 2013)

Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) e.g. at 64-5.

Noel Semple, “Access to Justice: Is Legal Services Regulation Blocking the Path?,” (2013) 21 International Journal of the Legal Profession 267, online: <http://ssrn.com/abstract=2303987> ; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 161-171; ntd Innovating for Accessibility

See e.g. Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) e.g. at 178.

Section 3.2, above.

Jerry Van Hoy, Franchise Law Firms and the Transformation of Personal Legal Services (Westport, CT: Quorum Books., 1997) 17 and 58-9.

Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015). DD also said “we’ve had to invest a bundle of money to get the pricing right, to get the marketing right, to build the workflows, to do fixed pricing.”

Section 3.6.3, above. For example, estate litigator HH said: “if you were a bigger firm, or if you had the resources to track this over time, if you looked at the file that would be something we could do, based on past experience, is go through all the files we’ve had for the past six years and look at the type of file, divide it up and figure out how much on average this kind of application costs.” (Interview with “HH” (Estate litigation practitioner, Toronto, female, 11 years since call to the bar. Interviewed May 22, 2015)). See also Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 165-6.

Laura Snyder, Democratizing Legal Services: Obstacles and Opportunities (New York: Lexington Books, 2016) at 68.

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 166.

Section 4.1, above.

Section 4.2, above.

Section 4.5, above.

See note 241, above, and accompanying text.

Interview with “YY” (Employment and human rights law practitioner, Toronto, male, 9 years since call to the bar. Interviewed July 31, 2015).

Section Chapter 5, above.

See section 6.4.1, above.

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 170-1.

Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015).

(Interview with “DD” (Personal plight law firm leader, Australia & UK, male, 27 years since call to the bar. Interviewed April 20, 2015))

Larger firms also arguably have advantages in retaining institutional knowledge. Family lawyer KK observed a risk that “every small firm has to reinvent the wheel” in order to develop precedents and workflows, as well as obtain the unwritten knowledge necessary to succeed in personal plight practice: Interview with “KK” (Family law and estate litigation practitioner, Sarnia, female, 3 years since call to the bar. Interviewed May 26, 2015).

Chapter Chapter 6, above.

Section 0, above.

David Stager and H. W. Arthurs, Lawyers in Canada (Toronto: Published in association with Statistics Canada by University of Toronto Press, 1990) at 167 and 195-6; Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 153; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 167-8. Criminal defence lawyer A2, who had previously worked for a corporate clientele, found that his new practice involved significantly more peaks and valleys of workflow. “You never know from one day to the next what you are going to have. If you are someone who picks up a big insurance company as a client you can be pretty sure you are getting 5 files every month. If you are a criminal lawyer you don’t know, right? You might have 4 guys come in for assault or impaired driving or a breach.” ((Interview with “A2” (Criminal law and immigration law practitioner, Hamilton, male, 30 years since call to the bar. Interviewed August 7, 2015):). See also the comments of a family lawyer interviewed by Mather et al.: “there are times when there are crises in cases, and things happen, and it all happens at once, and there is only so much of you.” (Lynn M. Mather, Craig A. McEwen and Richard J. Maiman, Divorce lawyers at work: varieties of professionalism in practice (Oxford ; New York: Oxford University Press, 2001) at 142). A larger firm provides a way to share work and thereby smooth the peaks and valleys.

Regarding the importance of mentorship, see section 6.5, above.

See Chapter Chapter 7 and Chapter Chapter 8, above.

Specialization at the individual practitioner level improves service quality (Section 7.1.1, above), but a legally inexperienced personal plight client benefits greatly from a generalist firm’s ability to comprehend and assist with all aspects of the client’s often complex situation (sections 7.1.2, 7.1.3, 7.1.4, above).

Section 7.2, above.

Regarding insulating regulation, see notes 704 and 741, above. For the argument in favour of atlernative business strucures, see Noel Semple, “Access to Justice: Is Legal Services Regulation Blocking the Path?,” (2013) 21 International Journal of the Legal Profession 267, online: <http://ssrn.com/abstract=2303987> ; Edward Iacobucci and M. J. Trebilcock, “An Economic Analysis Of Alternative Business Structures For The Practice Of Law,” (2014) Canadian Bar Review 57; Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 164-7.

6. Ntd Van Hoy

E.g. Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016); Interview with “JJ” (Family civil litigation practitioner, Sarnia, female, 24 years since call to the bar. Interviewed May 26, 2015); Interview with “C2” (Criminal law practitioner, Toronto, male. 11 years since call to the bar. Interviewed April 13, 2016)

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015); Interview with “QQ” (Civil and commercial employment litigation practitioner, Windsor, male, 2 years since call to the bar. Interviewed June 10, 2015).

For example, because sole proprietorship unites ownership and management in one individual, it eliminates owners’ difficulties in supervising and incentivizing managers: Edward Iacobucci and M. J. Trebilcock, “An Economic Analysis Of Alternative Business Structures For The Practice Of Law,” (2014) Canadian Bar Review 57 at 84.

Urbis, 2014 Law Society National Profile: Final Report (Sydney: Law Society of New South Wales, 2015) online: Law Society of New South Wales <https://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/1005660.pdf> (last accessed: 26 April 2017) at iii.

Mitch Kowalski, “Why small is beautiful for exchanging ideas, tips and experiences (National Post, June 21, 2016),” , Omar Ha-Redeye, “Cold, Hard Justice Lessons from the Fleet: Innovating from the bottom up,” (2017) Windsor Yearbook of Access to Justice (forthcoming).

Interview with “II” (Employment law practitioner, Toronto, male, 9 years since call to the bar. Interviewed May 22, 2015):

Joel Miller, “1 Insight, 6 Truths and 3 Pillars : A fresh approach to serving self-reps in Family Court (Presentation to Family Dispute Resolution Institute of Ontario. May 4, 2015),” (2015) at 5

7. Section 0

Anthony J. Casey and Anthony Niblett, “Self-Driving Laws” (2016) 66 University of Toronto Law Journal, online: <ssrn.com/abstract=2804674> (last accessed: 26 April 2017) at section 3.2.

Regarding this “starfish model” law firm, see Dan Pinnington, “The future of law: The challenges and opportunities of practising law in a global village “ <http://www.practicepro.ca/LawPROmag/Pinnington-Future-of-Law.pdf> (last accessed: 26 April 2017).

New York Times Editorial Board, “The Gig Economy’s False Promise (April 10, 2017),” <https://www.nytimes.com/2017/04/10/opinion/the-gig-economys-false-promise.html> (last accessed: 26 April 2017).

See also Jordan Furlong’s prediction that “Future solos will be niche specialists rather than broad generalists, collaborators rather than lone wolves, and increasingly virtual rather than bricked-and-mortared. They will draw clients not just from across town, but also across the country.” (Canadian Bar Association and Jordan Furlong, “Do Law Differently: Futures for Young Lawyers.” (Ottawa: CBA, 2016), online: <https://www.cba.org/getattachment/Publications-Resources/Resources/Futures/DO-LAW-DIFFERENTLY-FUTURES-FOR-YOUNG-LAWYERS/NewLawforNewLawyersEng.pdf> at 15).

Chrissie Lightfoot, “The two faces of the law (Legal Futures, 1 September 2011),” <http://www.legalfutures.co.uk/news/the-two-faces-of-the-law> (last accessed: 26 April 2017)

Section 8.4, above.

Noel Semple, Legal Services Regulation at the Crossroads: Justitia’s Legions (Cheltenham, UK: Edward Elgar, 2015) at 171.

D2 wants “a unified platform that manages my website, that has a call based computing system, that does my bookkeeping and accounting, and possibly even is involved in payroll for people that I work with, has a system for doing client intake, offers me technologies for managing my workload…I know there are young people entering the profession who know how to do all those things and that’s amazing, but I feel sheepish about not having any expertise in any of those things, but the truth is I’m not trained for any of those things.” (Interview with “D2” (Former human rights and tort law practitioner, Ottawa, female, 10 years since call to the bar. Interviewed June 19, 2016))

Interview with “ZZ” (Montreal, male. Interviewed April 5, 2015).