Last August I mentioned the CBA’s summary report on access to justice, Reaching Equal Justice: An Invitation to Envision and Act. This past week the Access to Justice Committee released the final report.
The report traverses many topics on the reasons why change is needed, including the growth of pro bono and unrepresented litigants, increase in poverty and legal illiteracy and increasing complexity of the legal system. The report also investigates several solutions to the problems, such as innovation in the courts, unbundled services and relying on technology.
There’s one idea in particular which has attracted my attention since last summer. The report suggests the creation of legal incubators, which would “help recent law graduates transition into sustainable practice situations to serve individuals and small businesses, as well as through virtual practice arrangements.”
The reason this idea specifically struck a cord with me is that this is exactly what we have been doing with our group at Fleet Street Law. Ostensibly we are an “association,” meaning we are not a partnership, not a joint business venture and do not share our trust accounts. Most historic associations are co-located, as in the typical barrister chambers we still see frequently in criminal practice. Our association is blended, diverse and far more dispersed, and I’d like to think it’s also far more innovative.
The advantages of an association for us at Fleet Street Law has been shared practice management support, referral of files, strategic cooperation on a limited basis, actualizing economies of scale for some generic fixed costs, and a modicum of added respectability from our peers and clients. The cost savings and efficiencies from this strategic alliance can be passed on to the client for more cost-effective legal services.
What many people do not realize initially is that we also have lawyers who rent physical or virtual space from us who are not part of our association, but still benefit to some extent from the gains we’ve realized. Essentially we offer informal mentorship and support to other junior lawyers, even though we are all young lawyers ourselves.
Needless to say the law society has a difficult time figuring us out, even when we do point them to the relevant Rules. We can’t completely blame them though, because it seems the courts are still trying to figure this out as well. This past September, Master Glustein commented on the complicated question of solicitor-client confidentiality in associations in Jajj v. 100337 Canada Limited,
 Lawyers with separate practices who work in association should not be presumed to be discussing the file with other separate practitioners who share premises or share some support staff. Such a presumption would be contrary to the lawyer’s professional and ethical obligations. Consequently, a reasonably informed client would not expect his or her lawyer to share confidential information with any other lawyer in the association, unlike the situation in MacDonald Estate in which partners and associates work in a law firm and the client’s reasonable expectation is that all resources of the firm are available to assist the client.
 Without a presumption of disclosure of confidential information, the court must review the evidence to determine whether the lawyers in the association have separate practices. If the lawyers have separate practices and there is no evidence that confidential information was disclosed, removal is not appropriate and permitting the lawyer of record to remain on record is consistent with the values discussed in MacDonald Estate of (i) the high integrity of the legal profession and (ii) the importance of a client’s right to choose a lawyer. Such a conclusion is also consistent with the desirability of permitting lawyers with separate practices to work in association.
In other words, the Rules apply to associations on a fact-specific basis. The facts of our group are about to get even more complicated.
Since our inception though we’ve all moved in different directions (sometimes together), including being hired by law firms (while maintaining our association), the formation of firm partnerships (again, with individuals not part of our association), developed our own notable litigation practices, moved into academia, consulting, or the business world, and launched legal technology platforms.
Going forward, our group is innovating further and moving towards an incubator model in 2014 to help assist younger lawyers with public-facing practices. The respective ventures we’ve entered since the formation of our group will only serve to provide even further support for these lawyers starting their practices, but for the sake of simplicity we’ll probably stop altogether calling ourselves an association.
To understand what exactly this means we can look at other legal incubators operating across North America. The recent CBA report refers to several law schools which offer incubator programs,
In the US, ‘law school incubator’ programs successfully help graduates transition into sustainable practice. Incubators accelerate the development of start-up companies by providing entrepreneurs with instruction in financial management, marketing, networking and sound business practices. The idea started at City University of New York in 2007 and spread quickly throughout the US. In some cases, law firms and other service providers donate office space and money.
In some law schools this takes the form of ‘legal residency programs’ where recent graduates offer low-cost legal assistance while attending seminars on obtaining and billing clients, malpractice insurance and setting up a law office. Another approach is through ‘solo and small firm institutes’ or facilities, where recent graduates receive substantial training or have access to a facility for hands on training, including in some cases office space, office assistance, access to lawyer mentors and law practice guidance. All of this is geared to assisting young lawyers to launch their own practices. ‘Entrepreneurial lawyering’ classes help students develop business plans provided participants are committed to establishing a solo or small firm practice and helping underserved populations after completion of their incubator training. They are generally encouraged to provide pro bono and low-bono services to increase access to civil legal services for those in need.
The report draws heavily on the work of the justice advisory and research facility Hague Institute for the Internationalisation of Law (HiiL), who released a 2011 publication, The law of the future and the future of law. HiiL appears to look at justice issues from the perspective of supply chains, providing a more comprehensive outlook on how legal disputes emerge and are concluded. This also allows for identification of gaps in the justice system which incubators can potentially fill.
The HiiL publication, Innovating Justice, looks at benchmarks and concludes that bringing several innovators together through “incubation” is an effective model of transformative change. These incubators involve a physical or virtual lab for innovating space, a “process pit bull” to keep things moving forward, and applied techniques to develop success criteria.
A CBA Envisioning Equal Justice Summit in Vancouver in April 2013 involved Sam Muller of HiiL to apply these ideas to the Canadian context. Attendees agreed there was a need for “access to justice champions” in Canada to emerge organically from the grassroots, equipped with creative solutions developed in practice, and willing to push things forward.
We believe we’ve already taken the first steps to championing the change for access to justice. Will you join us as a resident on our street to make it happen?