Publications

Long Live the Law Practice Program

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

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

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

The committee could have proposed reforms to expand the articling stream to accommodate everyone. For example they could have proposed that every licensed lawyer be required to either serve as an articling principal, or else contribute x% of his/her law practice income to a fund used to compensate lawyers who do serve as articling principals.

In the absence of any such plan, ending the LPP simply eliminates a path into the profession which is disproportionately used by equity-seeking and relatively disadvantaged candidates.  Perhaps more importantly, it also deprives equity-seeking/ disadvantaged would-be-clients of 200+ new lawyers per year who would be more likely to serve them than articling-track lawyers are.

The Report’s only other serious argument against the LPP is that we can’t decide who should pay for it. It costs roughly $17k per candidate.  At present a portion of this is absorbed by LSUC. Articling stream candidates pay a large share, due to the equalization of costs for LPP-stream and articling-stream candidates.

Who should pay is a tough problem, and there’s a convincing argument that the articling-stream candidates shouldn’t have to subsidize LPP-stream candidates to the extent that they currently do.  Personally, I think LSUC fees should be increased, and made progressive based on licensee income, in order to fund LPP and other A2J-enhancing initiatives.

But even requiring LPP candidates to pay the entire $17k per year themselves would be better than completely depriving them, and their would-be clients, of the opportunity to practice for which they have already invested so many years and so many tens of thousands of dollars.

The perception of second-tier or stigmatized status for LPP and its candidates is unfortunate. LSUC should fight this inaccurate perception, not surrender to it. But even if they can’t or won’t fight it, a professional path perceived as second tier is better than no path at all.

Male, Pale, and Stale?

Forthcoming, Canadian Journal of Law & Society

When lawyers elect the leaders of their self-regulatory organizations, what sort of people do they vote for?  How does electoral system design affect the ability of law societies and bar associations to understand and regulate a diverse legal profession? This article quantitatively assesses the demographic and professional diversity of leadership in the Law Society of Upper Canada.  After many years of underrepresentation, in 2015 non-white members and women were elected in numbers proportionate to their shares of Ontario lawyers. Regression analysis suggests that being non-white was not a disadvantage in the 2015 election, and being female actually conferred an advantage in attracting lawyers’ votes. The diverse employment contexts of the province’s lawyers were also represented in the elected group.  However early career lawyers were completely unrepresented.  This is largely a consequence of electoral system design choices, and can be remedied through the implementation of career stage constituencies.

Full text of draft version:   http://ssrn.com/abstract=2623743

The Cost of Seeking Civil Justice in Canada

Canadian Bar Review, Vol. 93.3, p. 639 (2016)

How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article then suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.

Early draft online: SSRN, http://ssrn.com/abstract=2616749

This research was the subject of an article in the Canadian Bar Association National Magazine. Online: CBA National Magazine, http://www.nationalmagazine.ca/Articles/June-2015-web/An-arm-and-a-leg.aspx

Legal Services Regulation At The Crossroads: Justitia’s Legions

Available now Edward Elgar Press in hardcover and as an affordable e-book .

A must read for everyone in North America who is making decisions on regulatory change to the legal services industry.” (Mitch Kowalski’s review in the Financial Post)

Through a comparative study of English-speaking jurisdictions, this book seeks to illuminate the policy choices involved in legal services regulation as well as the important consequences of those choices. Regulation can protect the interests of clients and the public, and reinforce the rule of law. On the other hand, legal services regulation can also undermine access to justice and suppress innovation, while failing to accomplish any of its lofty ambitions. The book seeks a path forward to increasing regulation’s benefits and reducing its burdens for clients and for the public. It proposes a client-centric approach to enhance access to justice and service quality, while revitalizing legal professionalism, self-regulation, and independence.