Publications

Shady Billing: Closing the Hall of Shame

Slaw.ca Legal Ethics Column, Jan. 30 2018

Shady Billing: Closing the Hall of Shame

Only “fair and reasonable” fees and disbursements can be charged by lawyers to their clients. This rule is uncontroversial, and applies across the country. Nevertheless, the following billing practices are used by some Canadian firms, and not clearly forbidden by regulation:[1]

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

Slaw.ca Legal Ethics Column, Dec. 12 2017

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

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

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

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

Slaw.ca Legal Ethics Column, October 6 2017

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

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

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Accessibility, Quality, and Profitability for Personal Plight Law Firms: Hitting the Sweet Spot

A new book published by the Canadian Bar Association. Available free online at www.cba.org/PersonalPlight

Personal plight legal practice includes all legal work for individual clients whose needs arise from disputes. This is the site of our worst access to justice problems. The goal of this project is to identify sustainable innovations that can make the services of personal plight law firms more accessible to all Canadians.

Accessibility is vitally important, but it is not the only thing that matters in personal plight legal practice. Thus, this book seeks out innovations that not only improve accessibility, but also preserve or enhance service quality as well as law firms’ profitability. These “sweet spot” opportunities emerged from interviews with 32 personal plight legal practitioners across the country, and from an extensive review of the literature.

The first chapter of this book describes personal plight legal needs, clients, and law firms, and introduces the “sweet spot” frame of reference. The next chapters focus on practical opportunities for personal plight legal practice related to Price Certainty (Chapter 2); Deferred Payment (Chapter 3); Diversifying Services (Chapter 4); Vertical Division of Labour (Chapter 5); and Horizontal Division of Labour (Chapters 6 and 7). The concluding chapter (Chapter 8) compares the prospects for large personal plight law firms, and small ones, to pursue these innovations. Throughout, the book offers practical recommendations for personal plight law firms, and also for regulators and professional groups interested in helping those firms create sustainable access to justice. These recommendations are collected in the Appendix.

Personal Plight: Mending the Market

Slaw.ca Legal Ethics Column, Aug. 11 2017

Personal Plight: Mending the Market

“Personal plight” legal services are those provided to individual clients whose legal needs arise from disputes. Personal plight areas such as family law, refugee law, and human rights are the site of Canada’s worst access to justice problems.

The market for personal plight legal services functions poorly, as Malcolm Mercer and Amy Salyzyn have shown in this space. A key problem, I suggest here, is that it is too difficult for consumers to shop intelligently. This undermines healthy competition and legal professionalism, in addition to access to justice. Regulators can and should mend the market for personal legal services.

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