The ABS debate continues among many Canadian provinces. The Law Society of British Columbia has already made the same mistake as the American Bar Association recently made by declining to allow outside investment in law firms. One of LSBC's reasons was that local lawyers didn’t feel a need for it; this reminds me of a comment made by a lawyer in the UK and likely echoed by some in Canada, “We’re smart people. If there was a better way to do things we would have already figured it out.” Or to more bluntly put it, LSBC’s rationale is like asking Rogers or Bell if they feel a need for more competition in wireless service…..but I digress.
However law societies want to cloak their decisions to prohibit outside investment (and I fully expect other law societies to follow LSBC’s uninspired lead) the actual reason behind prohibition is fear, some of it quite irrational. One lawyer told me that he feared outside investors would create a monopoly through buying up all family law or insurance defence practices. According to this lawyer, law societies should be worried about monopolies in law – something far beyond their mandate and which ignores that law firm consolidation regularly happens across every province without comment by any law society.
The reality is that backward-thinking lawyers fear losing a monopoly that has given many of them a very comfortable lifestyle without worrying about silly things like the need to innovate, or to be efficient or cost-effective. Outside investment will force lawyers to act like business people, something we’re woefully unprepared for.
Missing in law society discussions is the fact that outside investment has an excellent chance of creating better access to justice through greater investment in process and technology that in turn will lower prices for the average Canadian. Law societies are dismissive of this perfectly logical concept; failing to understand that it was the rationale behind the UK allowing outside investment. But what do the Brits know anyway? And also ignoring that outside investment has been permitted in Australia for over a decade without ill-effect. But what do those Aussies know anyway?
“Show us first,” Canadian Benchers clamour, “before we dare allow outside investors into our private party.”
In the type of twisted logic that only makes sense to those holding a monopoly, a profession that has failed quite miserably to provide access to justice now demands clear and irrefutable proof that new investors will definitely provide better access to justice before they are permitted into the game; in the minds of Benchers, it is far better to have a proven broken legal system, than to take a chance allowing lawyers access to capital that can only improve the way legal services are delivered.
The “prove it first” approach, presupposes that the current arrangement is already the very best way to provide legal services and the very best way to provide access to justice.
We already know that this is untrue – otherwise we wouldn’t have an access to justice problem in this country.
So as Benchers ignore their obligation to regulate in the public interest, choosing instead to side with the personal interests of the lawyers who elected them, Canadians are left with a justice system that steadily grows farther and farther out of reach.