Review of Michael Trebilcock, Paradoxes of Professional Regulation: In Search of Regulatory Principles. Canadian Business Law Journal, Vol. 67, page 247.
Draft Online: https://ssrn.com/abstract=4640225
Category: Legal Services Regulation
Systemic Racism, Clients, and the Law Societies
Slaw.ca, December 2023
Systemic racism is a reality in Canada. At many junctures in life, a person’s access to opportunities and fair treatment will be affected by their race, skin colour, or indigineity. The legal profession, in order to do its essential work in our society, must recognize and confront systemic racism.
So far, most formal efforts to do so have focused on racism’s effect on lawyers, law students, and others who work in the law. (See for example the action plans from the law societies of BC and Ontario, as well as Alberta’s “My Experience” project). These are worthy and very important efforts. But something might be missing: attention to the effects of systemic racism on actual and would-be clients.
Continue reading “Systemic Racism, Clients, and the Law Societies”Adjudicative Tribunals: In Need of Friends in High Places
Slaw.ca Legal Access to Justice Column, April 19 2023.
Found online at: https://www.slaw.ca/2023/04/19/adjudicative-tribunals-in-need-of-friends-in-high-places/
Each year, over 100,000 Ontarians seek justice from Tribunals Ontario. This group of people —the size of a small city— includes tenants, landlords, motor vehicle accident victims seeking insurance benefits, people denied disability benefits, and those who believe that their fundamental human rights have been infringed. This group of 100,000 is significantly larger than the number of plaintiffs who start civil lawsuits in the Superior Court of Justice each year. The numbers are similar in other provinces. For most civil rights, tribunals are Canadians’ first and only opportunity to seek authoritative dispute-resolution and enforcement.
Continue reading “Adjudicative Tribunals: In Need of Friends in High Places”A Charter Right to Advise – Even Without a License?
Slaw.ca Access to Justice Column, February 2 2023
Found online at: https://www.slaw.ca/2023/02/02/a-charter-right-to-advise-even-without-a-license/
A new American case, Upsolve v. James, suggests that freedom of expression might protect the right of non-lawyers to offer legal advice.
In both Canada and the USA, lawyers have a near-monopoly on legal advice. If anyone tells someone else how the law would apply to their circumstances, the first person is probably deemed to be “practicing law.” That is something that only lawyers are allowed to do.
Continue reading “A Charter Right to Advise – Even Without a License?”On a Slow Train to Nowhere: Paralegal Family Law Practice in Ontario
Slaw.ca Legal Ethics Column, August 11, 2022
Found online at: https://www.slaw.ca/2022/08/11/on-a-slow-train-to-nowhere-paralegal-family-law-practice-in-ontario/
Every year, tens of thousands of Ontarians go through divorce or separation. Should these people have access to family law services provided by non-lawyers? What if these service-providers were paralegals trained in family law, insured, and regulated by the Law Society of Ontario?
Continue reading “On a Slow Train to Nowhere: Paralegal Family Law Practice in Ontario”Online and In-Person Hearings: The Best of Both Worlds
Slaw.ca Civil Procedure Column, June 9, 2022
Found online at: https://www.slaw.ca/2022/06/09/online-and-in-person-hearings-the-best-of-both-worlds/
For a while during the pandemic, online hearings were the only option for courts and tribunals. Justice was done on Zoom, or else it wasn’t done at all.
Now, as we emerge from the age of Covid (knock on wood!), online vs. in-person is a recurring controversy across Ontario’s justice sector. After the Superior Court of Justice ordered most contested family law matters to return to court, a group of family bar lawyers organized in defence of the online option. By contrast, the Landlord and Tenant Board is insisting on fully online practice, while the Advocacy Centre for Tenants Ontario states that “going digital has been a failure” and calls for a return to in-person hearings. The online vs in-person controversy is also litigated on a case-by-case basis. For many civil trials, in the absence of party consent an expensive procedural motion may be necessary to resolve the question of online vs. in-person.
Continue reading “Online and In-Person Hearings: The Best of Both Worlds”Building Up the Rule of Law in Ontario – Ministerial Zoning Orders and the Ford Government
Slaw.ca Column, October 7, 2021
Found online at: http://www.slaw.ca/2021/10/07/building-up-the-rule-of-law-in-ontario-ministerial-zoning-orders-and-the-ford-government/
“Should they really be allowed to put up that building there?!” Land development is controversial, especially in areas that are growing quickly. As someone who is running for office in one such area, I have heard quite a bit about these issues from voters.
The issues are seldom black and white.
Continue reading “Building Up the Rule of Law in Ontario – Ministerial Zoning Orders and the Ford Government”The Accountability Gap and The Struggles of Our Civil Justice System
Slaw.ca Legal Ethics Column, April 22, 2021
Found online at: https://www.slaw.ca/2021/04/22/the-accountability-gap-and-the-struggles-of-our-civil-justice-system/
Conflict management systems are increasingly common within large corporations and other organizations. Workplace interpersonal disputes and bad behaviour are inevitable, but also manageable. Interests can be reconciled, rights can be upheld, and peace can be restored. A conflict management system is built to do exactly that.
Continue reading “The Accountability Gap and The Struggles of Our Civil Justice System”Justice Delayed and Denied in Ontario’s Tribunals
Slaw.ca Access to Justice Column, February 16, 2021
Found online at: https://www.slaw.ca/2021/02/16/justice-delayed-and-denied-in-ontarios-tribunals/
Widespread distrust of government helped Donald Trump bring the United States to its knees. Only 17% of Americans trusted the federal government to do the right thing most of the time in 2019, down from over 70% in the 1960s. People who lack any confidence in government tend to be receptive to anti-government populist messages.
The best way to preserve public trust in government is to ensure, as much as possible, that government acts in a trustworthy way. What does this have to do with Ontario’s administrative tribunals?
Continue reading “Justice Delayed and Denied in Ontario’s Tribunals”Judicial Analytics: Facing Uncomfortable Truths
Slaw.ca Legal Ethics Column, October 20, 2020
Found online at: https://www.slaw.ca/2020/10/20/judicial-analytics-facing-uncomfortable-truths/
For as long as there have been judges, people have tried to predict judges’ decisions. In so doing, they have always understood that judges are human beings. They are not calculators from an assembly line, each of which will display the same result if one punches in the same inputs. Thus, at any watering hole where litigators gather, it will be overheard that “Justice Smith comes down hard on drug offenders,” or “If your client has soft-tissue injuries, you had better hope that you don’t draw Justice Jones for the trial.”
In France, it would seem that such conversations are now illegal. Loi no 2019-222 du 23 mars 2019 forbids the use of information about the identity of judges in order to evaluate, analyze, compare or predict their actual or expected decisions.[1] The Assemblée nationale was worried by the emergence of artificial intelligence applications which crunch data about prior judicial decisions, and use it to predict decisions. An excellent forthcoming Dalhousie Jaw Journal article by Amy Salyzyn and Jena McGill argues persuasively against this ban. Salyzyn & McGill also identifying the challenges and opportunities posed by the emergence of mainstream “judicial analytics” technology.
France’s ban on judicial analytics is a bad idea, but there is a noble sentiment behind it. People aspire to live under the “Rule of Law,” and not the “Rule of People.” We want, and we should want, the outcome of legal disputes to depend exclusively on the facts and the law, and not on what individuals happen to adjudicate those disputes.
Undeniably, however, there are patterns in decisions which can only mean that the identity of the judges affects the outcomes. To take a Canadian example, Sean Rehaag has demonstrated that the outcome of a refugee case before the Federal Court of Appeal depends significantly on which judge happens to hear it. Modern judicial analytics simply brings these patterns to light more consistently and quickly than lawyers’ shop-talk did in previous generations.
In the words of Friedrich Hayek, “the law cannot rule. Only men can exercise power over other men.”[2] Much as we might wish it to be so, it cannot be reasonably maintained that the law itself always makes the all the decisions, with judges merely serving as its neutral mouthpieces. France’s ban on judicial analytics is an effort to suppress this uncomfortable truth and preserve what is, at best, a noble lie. It is incompatible with the freedom of speech, and the accountability of public officials.
In addition to being misguided, the effort is probably futile in this day and age. If there is demand for judicial analytics in France, then someone will meet that demand from outside the country’s borders. We would all do better to face the uncomfortable facts that judicial analytics reveals about the nature of judging. With eyes wide open, we can work to design a justice system which, as much as possible, delivers consistent and fair results to everyone.
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[1] “ Les données d’identité des magistrats et des membres du greffe ne peuvent faire l’objet d’une réutilisation ayant pour objet ou pour effet d’évaluer, d’analyser, de comparer ou de prédire leurs pratiques professionnelles réelles ou supposées.”
[2] The Constitution of Liberty.
A Good Day for Self-Regulation: The LSO’s Family Law Paralegal Proposal
Slaw.ca Legal Ethics Column, July 30, 2020
Found online at: http://www.slaw.ca/2020/07/30/a-good-day-for-self-regulation-the-lsos-family-law-paralegal-proposal/
Paralegals have been licensed to independently offer legal services in Ontario since 2007. Their current scope of practice includes tribunal and small claims matters, provincial offences, and some other legal needs. Last month, the Law Society of Ontario’s Family Law Working Group proposed that paralegals, with special training, be allowed to offer family law services as well.
The scope of practice proposed for paralegals in family law is surprisingly broad. I had expected that it might be confined to guideline child support, straightforward parenting orders, and uncontested divorces. In fact, it extends to spousal support and matrimonial property division (except in some financially complicated and high-net-worth cases). Despite the lawyer opposition that this proposal is sure to encounter, a broad scope of paralegal family law practice may become reality. If so then cynics (like me), who suspected that the lawyer-controlled Law Society would never take the initiative to significantly expand paralegal practice, will have to reconsider.
A Normative Framework for Scope of Practice
The Family Law Working Group deserves applause for this brave proposal. Whether it has identified the right scope of practice is a more difficult question. My view is that the Law Society should act so as to maximize the aggregate welfare of consumers, and would-be consumers, of legal services.
- A broader scope of paralegal practice means more options and more competition — and therefore lower prices — for legal services. It also increases the number of individuals willing to make the investment necessary to obtain the paralegal family law license
- Conversely, a narrower scope would mean that things like spousal support and matrimonial property division would remain reserved for lawyers. Family lawyers typically have more training than paralegals. (Although it is interesting to note that a licensed Ontario lawyer can offer any family law services whatsoever despite never having taken any family law courses whatsoever outside, of the bar admission process). Requiring a full lawyer license might mean better quality, along with higher prices, for consumers of these services.
From this welfare-consequentialist standpoint, defining license scope is a balancing act between consumer interests in price, quality, and choice. Did the Working Group strike the right balance? The data necessary to scrutinize their choices does not seem to be available at this time. However the Working Group’s document does describe what seems to be a rigorous consultation process, including meetings with more than 100 practitioners, experts, and psychometricians (which is a word that I had to look up).
Let us assume that there is an objectively correct scope of paralegal family law practice, and that is the scope that will maximize the overall welfare of consumers. Perhaps the Working Group has accurately predicted and laid out that scope, based on their consultation process. However it is also possible that predicting the correct scope — even approximately — is inherently impossible ex ante. If so, then the LSO should be prepared to gather data about the experiences of family legal services consumers, and use that data to revise scopes of practice over time.
On the Demand Side
For prospective paralegal family law practitioners, the “juice” (career opportunities) must be worth the “squeeze” (tuition and time investment to acquire the license). The Washington State Limited License Legal Technician program was recently abolished.
Protectionist lawyers or reactionist regulators in that state might be part of the explanation, but there was also very limited take-up of the program. Five years after its inception in 2015, this it had attracted only 40 practitioners. If the licensing requirements are too onerous, and/or the scope of practice is too narrow, the LSO’s paralegal family law practice experiment could meet a similar fate. It is very good to see that the Consultation Paper considers these demand-side issues, adopting “Viability” of the program as one of its guiding principles.
Competition, and Social Responsibility to the Disrupted
What about Ontario’s family lawyers? There is every reason to believe that most of them offer high-quality, highly professional services to their clients. What if the new paralegal family law license dramatically undercuts demand for their services ? What if paralegals offer services comparable to those of family lawyers, at prices low enough to significantly disrupt the market? This fear, often unspoken, underlies much lawyer opposition to paralegal practice.
The threat to lawyers may be hypothetical, or overblown. The primary market for the new paralegal practitioners may turn out to be currently self-represented people, not people currently represented by lawyers. Some, or most, family lawyers might experience new competition from paralegals, but respond in a way that leaves them doing just as well as they were before. My research with family law and other personal plight lawyers has convinced me that the stereotype of lawyers as devoted to tradition, and unwilling to experiment with new practice models, has little basis in fact.
Still, new competition can certainly devastate workers through no fault of their own. Suppose that Floyd the family lawyer has jumped through all the currently necessary regulatory hurdles in order to offer family law services. These hurdles include 7 years of education, large tuition bills and student debts, the articling crapshoot, etc. Acting in good faith, Floyd has made an enormous personal investment in being able to help people going through separation. Now suppose that Floyd’s ability to earn a living from his investment in legal education is greatly undermined by the new paralegal competition. Floyd loses his job as a family law associate. He hangs out a shingle, but there is simply much less client work available now that paralegals are in the market.
Would that be fair to Floyd? Not really. Something should be done to help lawyers who wind up in this sort of position. That may be a job for the Law Society. However the issue is not really lawyer-specific. It’s part of the bigger public policy problem of how we as a society respond to fluctuations in the demand for labour of all kinds. Floyd is really in the same boat as the auto plant worker laid off because of foreign competition, the vehicle operator replaced by self-driving technology, and the waiter laid off due to Covid-19. Government must help such people with retraining programs, unemployment insurance, wage loss insurance, earned-income tax credits, and so forth.
However concern for the disrupted must not distract the Law Society from its clear statutory mandate to make decisions with exclusive regard to the public interest. If Convocation adopts the Family Law Working Group’s proposal for paralegal family law practice — or something similar to it — then it will be fulfilling this public interest obligation, in accordance with the best traditions of self-regulation.
The Law Society’s Family Legal Services Provider consultation is open until November 30, 2020.
Tending the Flame: Technological Innovation and the Legal Services Act Regime
(2019) A paper prepared for the Legal Services Board. 41 pages.
Online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616343
Billing without Bilking: Regulating Time-Based Legal Fees
(2020) Forthcoming, Dalhousie Law Journal. 28 pages.
Online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3616319
The British Invasion: Legal Services Regulation Edition
Slaw.ca Legal Ethics Column, April 10, 2020.
Found online at: http://www.slaw.ca/2020/04/10/the-british-invasion-legal-services-regulation-edition/
Bringing British things across the pond is a hot Canadian trend. Prince Harry and Megan Markle are now our most famous immigrants. A Canada-U.K. free trade deal has apparently become a post-Brexit priority. And the Downton Abbey movie has raked in hundreds of millions of dollars from my parents and their friends.
While we’re at it, we should copy at least three aspects of legal services regulation as practiced in our erstwhile mother country. The U.K. has swept away many of the outdated and unnecessary restrictions on legal services that we still cling to. The payoff is better access to justice, without any apparent diminution in quality or ethics. Continue reading “The British Invasion: Legal Services Regulation Edition”
Harassment in the Legal Profession: A Few Bad Apples?
Slaw.ca Legal Ethics Column, February 24, 2020.
Found online at: http://www.slaw.ca/2020/02/24/harassment-in-the-legal-profession-a-few-bad-apples/
Far too many people who work in law firms are subject to harassment by lawyers and paralegals. What, if anything, should our law societies do about this? Much depends on whether one sees the problem as “bad apples,” or as symptomatic of problems with the entire “barrel” which is the legal profession in Canada.
“Harassment” is defined by the Ontario Human Rights Code as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.” Harassment is often (but not always) sexual in nature. It is distinct from discrimination, but is often based on prohibited grounds of discrimination such as gender, race, or disability. Harassment is distinct from assault (which requires touching), but in many cases the harassing course of conduct includes assault.
Once you start paying attention, evidence of harassment in law firms is not hard to find. Every month, approximately 15 complaints are made to the Law Society of Ontario’s Discrimination and Harassment Counsel (DHC) , regarding alleged discrimination or harassment by a member of the legal profession. Sexual harassment is the most common complaint to the DHC, representing a quarter of the complaints. Racial harassment is also commonly recorded in this data. In a recent Globe & Mail article, Jocelyn Downie and Elaine Craig remind readers that Gerald Regan, a famous lawyer and former Premier of Nova Scotia, has been accused of sexual harassment and assault by more than 35 women. His success seems to suggest that this conduct is still taken lightly in many quarters. Continue reading “Harassment in the Legal Profession: A Few Bad Apples?”