Category: Other Publications

The Absent Ethics of Legal Fees : Putting Profit-Seeking in Its Place

Noel Semple

Slaw.ca Legal Ethics Column, August 14, 2019.

Found online at: http://www.slaw.ca/2019/08/14/the-absent-ethics-of-legal-fees-putting-profit-seeking-in-its-place/

A lawyer should be a loyal ally for a person with a legal need. This loyalty is at the core of our profession’s value proposition to society. Thus, legal ethics strives to guarantee devoted service to clients. Conflict of interest rules prohibit all situations creating “substantial risk” that the lawyer’s loyalty to a client “would be materially and adversely affected by the lawyer’s own interest.” Lawyers, as fiduciaries, must be “concerned solely for the beneficiary [client]’s interests, never the fiduciary [lawyer]’s own.”

There is, however, a glaring exception to the duty of selfless loyalty to clients. Lawyers are allowed to pursue their own pecuniary interests in collecting fees, at the expense of the clients who pay them. When a lawyer acts to obtain fees from a client, (s)he is clearly not acting as a fiduciary who puts the beneficiary’s interest first.

Everyone deserves to be paid for their work, and without the profit motive very few legal services would be made available to anyone. However, legal ethics must reconcile lawyers’ self-interested pursuit of fees with the general prohibition of conflicts of interest, and with the generally fiduciary nature of the lawyer-client relationship. Continue reading “The Absent Ethics of Legal Fees : Putting Profit-Seeking in Its Place” →

Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion

Noel Semple

Slaw.ca Legal Ethics Column, June 6, 2019.

Found online at: http://www.slaw.ca/2019/06/06/tort-litigation-and-greenhouse-gas-emissions-changing-the-climate-of-opinion/

Climate change is probably the single greatest threat to the security and prosperity of Canadians, as well as the rest of the human race. The most effective, least painful way to mitigate climate change is to impose a price on greenhouse gases worldwide, either through carbon taxes or tradable emission permits. However, carbon pricing is as politically difficult as it is economically efficient. In most countries, voters and political leaders have so far refused to support prices high enough to keep the risk of catastrophic climate change within an acceptable band. In Canada, there is also real risk that the federal carbon pricing backstop will be derailed on constitutional grounds. Continue reading “Tort Litigation and Greenhouse Gas Emissions: Changing the Climate of Opinion” →

A Tale of Two Attorneys-General: Jody Wilson-Raybould and Caroline Mulroney

Noel Semple

Slaw.ca Legal Ethics Column, April 10, 2019.

Found online at: http://www.slaw.ca/2019/04/10/a-tale-of-two-attorneys-general-jody-wilson-raybould-and-caroline-mulroney/

Twice in the last six months, Canadian Attorneys-General have been encouraged to resist the first ministers of their respective governments. Today, federal AG Jody Wilson-Raybould is widely commended for resisting repeated requests from the PM’s office to change tack on the prosecution of SNC-Lavalin (See Patricia Hughes’ comprehensive Slaw post on the affair).

In September of 2018, Ontario AG Caroline Mulroney was called upon to vote against, or resign from, Premier Doug Ford’s government after Ford proposed to invoke section 33 of the Charter. The Superior Court of Justice had found Ford’s plan to reduce the size of Toronto City Council to violate freedom of expression, and Ford announced that he would use the “notwithstanding clause,” if necessary, to override this decision. (The SCJ ruling was quickly overturned on appeal, making section 33 unnecessary).

What do these two cases have in common, and what sets them apart? Continue reading “A Tale of Two Attorneys-General: Jody Wilson-Raybould and Caroline Mulroney” →

Collegial Reputation and Peer Rankings: An Invisible Hand?

Noel Semple

Slaw.ca Legal Ethics Column, January 31, 2019.

Found online at: http://www.slaw.ca/2019/01/31/collegial-reputation-and-peer-rankings-an-invisible-hand/

Suppose you have practiced law for many years in the same community. You are shown a list of other lawyers who do the same sort of work as you, in the same area. You probably have an opinion about most of the names on the list. Favourable or unfavourable impressions will have accumulated from your interactions with them on files, your observations of their work, and other colleagues’ comments to you about them.

Of course, they also have opinions about you. Your collegial reputation is the sum of the opinions about you held by others in your community of practice.

Collegial reputations are not necessarily fair or well- deserved. They may reflect prejudice or irrelevant factors, rather than the real qualities of someone’s work. Nevertheless, within professions like law, colleagues are relatively well placed to evaluate the many aspects of value that are invisible to clients. Continue reading “Collegial Reputation and Peer Rankings: An Invisible Hand?” →

Why We Can’t Ban Legal Advertising

Noel Semple

Slaw.ca Legal Ethics Column, December 14, 2018.

Found online at: http://www.slaw.ca/2018/12/14/why-we-cant-ban-legal-advertising/

Whenever I see billboard or TV advertising for law firms, I worry. I don’t worry about the “dignity” of the legal profession; I worry about the people at whom these ads are targeted. Choosing the best possible firm can make a major difference in the long-term happiness and financial security of a person with a serious personal plight legal need (e.g. a personal injury, a divorce, or a criminal charge). Mass media ads almost never provide any useful information that would help someone in this position make an intelligent choice. The airbrushed photos, empty boasts, and gleaming boardrooms in these ads are meant to promote emotional resonance and brand recognition, not reasoned decision-making.

Advertising for normal goods and services — which most consumers can understand and evaluate — may foster healthy competition, which in turn improves quality and reduces price. By contrast, mass market advertising for opaque professional services such as law is more likely to promote unhealthy and consumer-hostile competition. It encourages a struggle between firms to achieve name recognition by deploying expensive campaigns, which are ultimately paid for by clients through higher fees. Clients are better off when they choose law firms by relying on knowledgeable and unbiased referrals, or comparing objective information about the available options. In such a market, financial incentives are aligned with professionalism: firms’ profits will depend on the real value that they offer to clients, not on their marketing budgets.

With these thoughts in mind, I started writing this column to argue that most or all mass-market law firm advertising should simply be banned — as it was before roughly 1980. However in researching this piece, I’ve come across some compelling reasons to think otherwise. Continue reading “Why We Can’t Ban Legal Advertising” →

Bridges over the Chasm: Licensing Design and the Abolition of Articling

Noel Semple

Slaw.ca Legal Ethics Column, July 27, 2018.

Found online at: http://www.slaw.ca/2018/07/27/bridges-over-the-chasm-licensing-design-and-the-abolition-of-articling/

What should people who want to practice law have to do before they are licensed? This perennial debate has bloomed once again. The Law Society of Ontario (LSO) is seeking feedback on its Options for Lawyer Licensing consultation paper (Slaw summary here). Two of the LSO’s four options would abolish articling. Candidates would instead have to pass exams covering both legal skills and substantive knowledge. There would also be a law practice program, either required for all candidates (LSO’s Option 4) or only for those practicing in smaller firms (Option 3).

Thinking of licensing in terms of footbridges over a chasm may help clarify what is at stake, and why the LSO should in fact abolish the articling requirement. Continue reading “Bridges over the Chasm: Licensing Design and the Abolition of Articling” →

Measuring Legal Service Value, Part 2

Noel Semple

Slaw.ca Legal Ethics Column, Tuesday June 1, 2018.

Online: http://www.slaw.ca/2018/06/01/measuring-legal-service-value-part-2/.

What makes a great law firm? How can one quantify just how great a firm is, and compare it to its competitors? Last time in this space I suggested that legal service value has four elements (full paper here):

  • To the extent that a firm gets good legal results for its clients, it has effectiveness value.
  • To the extent that the firm’s fees are low and easy to pay, it has affordability value.
  • The more the firm’s practices minimize clients’ time and stress costs, the more client experience value it has.
  • Finally, if the firm’s work has many benefits and few costs for people other than its clients, it has high third party value.

In principle, a firm’s performance on these four elements of value can be quantified. If we could actually create accurate charts like these for legal services providers, we would have more empowered consumers, better self-awareness of strengths and weaknesses within law firms, and more evidence-based regulation. This project can also move us toward a more meritocratic legal profession, in which individual success is less dependent on racial and socioeconomic privilege.

An accurate quantification of value will require multiple metrics, and the array of metrics will depend on the legal niche in question. This column outlines three basic types of metric for quantifying legal service value: output metrics, internal metrics, and input metrics. Output metrics measure what comes out of the legal service provider. Internal metrics examine what happens inside the firm. Finally, input metrics analyze the people who walk in (or log in) to the firm each morning. Continue reading “Measuring Legal Service Value, Part 2” →

Measuring Legal Service Value, Part 1

Noel Semple

Slaw.ca Legal Ethics Column, Tuesday April 5, 2018.

Online: http://www.slaw.ca/2018/04/05/measuring-legal-service-value-part-1/.

If you work at a law firm, how good is that firm? If you’re a client or potential client, how good are the different legal services providers that you might choose to patronize?

It’s too difficult, at present, to answer these questions in an objective and reliable way. This is most obviously true for individual people with legal needs. They generally confront a mysterious landscape populated with apparently indistinguishable law firms, as well as proliferating alternative sources of legal services.

However, even experienced corporate clients, and lawyers themselves, lack solid information about the respective merits of different legal service providers. To evaluate quality, they must often rely on opaque, methodologically suspect rankings or else anecdotal impressions of firms.

We need better ways to quantify and compare the value propositions offered by different providers of legal services. This column proposes a definition of legal service value, and next time in this space I’ll propose and categorize metrics for quantifying it. A detailed paper on these topics is available here. Continue reading “Measuring Legal Service Value, Part 1” →

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

Noel Semple

With Jenna Wright, September 29, 2017.

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

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

Shady Billing: Closing the Hall of Shame

Noel Semple

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]

Continue reading “Shady Billing: Closing the Hall of Shame” →

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

Noel Semple

Slaw.ca Legal Ethics Column, Dec. 12 2017

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

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

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

I suggest that our law societies should collect mandatory “access to justice levies” from all licensees, and use the money to fund access to justice for people of modest means. These levies should be progressive (calculated based on the income of each licensee). The clinics and programs receiving the funds should be selected by the licensees themselves, through participatory democracy processes. Continue reading “Access to Justice Levies for Lawyers: Putting Our Money Where Our Mouths Are” →

Get Creative in Billing Clients for Dispute Resolution

Noel Semple

Canadian Lawyer, November 20, 2017.

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

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

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

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

Noel Semple

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.

Continue reading “Generalism and Access to Justice: Jack of All Trades, Master of None?” →

Personal Plight: Mending the Market

Noel Semple

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.

Continue reading “Personal Plight: Mending the Market” →

Attorney on Amazon? Online Marketplaces for Legal Services

Noel Semple

Law and Technology at Windsor Law Blog, 2017.

Online: http://www.lteclab.com/blog-post/attorneys-on-amazon-online-marketplaces-for-legal-services/.

For an individual with a legal need, shopping intelligently for a law firm can be a frustrating experience. It is difficult to get any objective information about price or quality, and comparison-shopping is arduous. Are online marketplaces, which play an increasingly central role in the consumer economy, part of the solution to this access to justice problem?

Continue reading “Attorney on Amazon? Online Marketplaces for Legal Services” →