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
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
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
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
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
(2019) University of British Columbia Law Review, Vol. 52, No. 3.
This article proposes a theoretical foundation for measuring legal service value. It aims to support efforts to compare the value of offerings from different law firms, as well as alternative legal service providers.
The value of any legal service depends on (i) its effectiveness, (ii) its affordability, (iii) the experience it creates for its clients, and (iv) third party effects (the impact the service-provider has on people other than the client).
These four elements of value can be quantified through various metrics applied to firms or entities that provide a given service. Output metrics evaluate either the actual real-world impact of a legal service, or the written and oral work products of the firm. Internal metrics check for processes or structures within a firm that demonstrably support high value outputs. Input metrics focus on the attributes and credentials of the individuals who provide the service.
This article concludes that measuring legal service value is challenging, and may be dangerous if done poorly. Nevertheless, the rewards justify the challenge. Higher quality legal professionalism, more effective and less burdensome regulation, and consumer empowerment are among the payoffs if we can find better ways to measure legal service value.
Full text: https://ssrn.com/abstract=3144771
Revised with major modifications, resubmitted June 2020, Moral and Political Philosophy.
Public policy should try to make individuals’ lives better than they would otherwise be, according to welfare-consequentialism. This article asks which individuals should count in welfare-consequentialist public policy analysis. Possible answers to the “who counts” question fall along a spectrum between parochial and inclusive. One relatively parochial answer is that only welfare effects experienced by the living human constituents of government should be considered. At the other end of the spectrum, a highly inclusive answer would be that welfare impacts on all individuals who are capable of having welfare should be weighed equally in a social welfare function.
The paper proposes a two-level theory to respond to the “who counts” question. Two-level theories distinguish between (i) what is ethically ideal, and (ii) decision procedures for humans who want to give effect to an ethical ideal, but have limited capacity to do so. Persuasive arguments support an inclusive approach that encompasses the unborn, foreigners, and animals. However, human predictions of the welfare consequences of policy options are prone to error. Welfare predictions about individuals who are temporally, politically, or biologically dissimilar from the predicting government are especially likely to be wrong. Using a social welfare function with excessive welfare-prediction requirements to make decisions may undermine the government’s capacity to correctly predict and advance anyone’s welfare. The paper concludes by analyzing alternative ways to make welfare-consequentialist decision procedures more parochial, and therefore more practical for real human governments seeking to make life better for everybody.
Full Text Online: https://ssrn.com/abstract=3392370
International Journal of the Legal Profession, Vol. 25.
“Personal plight” is the sector of the legal services industry in which the clients are individuals, and the legal needs arise from disputes. This article proposes that competition among personal plight law firms is suppressed by three demand-side phenomena. First, consumers confront high search costs. Identifying competing law firms willing and able to provide the needed services often requires significant expenditure of temporal and psychological resources. Second, comparable price and quality information about firms is scarce for consumers. Both of these factors impede comparison shopping and reduce competitive pressure on firms. A third competition-suppressing factor is observed in tort legal service markets, where offerings are typically priced on a contingency basis. Contingency fees have relatively low salience to consumers, and this reduces consumers’ willingness to negotiate and comparison-shop on the basis of price. This analysis is supported by the author’s empirical research with Ontario personal plight lawyers as well as the existing literature. The article concludes by suggesting possible consequences of this analysis for regulatory policy.
Full text: https://www.tandfonline.com/doi/abs/10.1080/09695958.2018.1490292?journalCode=cijl20
Slaw.ca Legal Ethics Column, Tuesday June 1, 2018.
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
Slaw.ca Legal Ethics Column, Tuesday April 5, 2018.
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
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
Slaw.ca Legal Ethics Column, Jan. 30 2018
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:
Slaw.ca Legal Ethics Column, Dec. 12 2017
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
Canadian Lawyer, November 20, 2017.
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