Principle, Not Politics

The Law Society of Upper Canada ABS Working Group delivered an interim report to Convocation in September. In reading some of the subsequent comments, I was reminded of Nick Robinson’s thoughtful paper When Lawyers Don’t Get All the Profits. As he said in an interview with Cristin Schmitz:

I’ve been amazed in this debate how much each side kind of talks past each other, dismisses the concerns of the other side, or the point of the other side.

In its interim report, the Working Group reported that it would not further consider non-licensee ownership or control of traditional practices at this time. Rather, four other areas would be examined. It was disappointing to have a leading ABS proponent respond to the interim report saying that the “foul stench of protectionism” explained the report and to have another say, less dramatically, that “the outcome in Ontario points to the triumph of politics over principle”.

While it would be naïve to think that strong views will change as a result, I think it important to say for the record that the ABS Working Group, a diverse group[i], worked hard to genuinely address a complex question. The report was a consensus report supported by all members of the working group. Being thought wrong is fair enough especially on complex issues. But I don’t accept the allegation that our interim report is unprincipled. It is not. On the other hand, it has to be admitted that professional self-interest is not an unreasonable concern. Professional self-regulation on issues where the public interest and professional self-interest can diverge is a challenge to be addressed with care. The public interest must govern.

But to the Interim Report. Why not move forward now to majority or control of traditional practices? My own view is principally premised on observations of the effect of ABS in Australia and in England. The first observation is that minority non-lawyer ownership has been broadly adopted in Australia and is the greatest part of ABS licensing in both Australia and England. There appear to be real advantages seen in minority investment for these practices and little or no expressed concern. The second observation is that the largest effect of majority non-lawyer ownership in both Australia and England has been consolidation in the personal injury sector rather than creation of new enterprises delivering new legal services or delivering legal services differently. Recognizing that personal injury work in Ontario is principally available on the basis of contingent fees, it is unclear to me that injured persons would be better or more economically served by large consolidated firms. And it is difficult to imagine reversing a decision which consolidates an area of practice. Watching and waiting for evidence to develop seems the better course to me. It is also material to me that the current personal injury model in Ontario, based in contingent and referral fees, is raising concerns for many. It seems sensible to work through these concerns before considering significant changes.

In England, there have been more innovative practices using majority ownership than in Australia. This is not surprising given the much larger English market and given the importance of London as a capital centre. But significantly, when thoughtful English analysts were asked for their views of the impact of ABS since 2012 when first permitted, the consistent answer was that it is too early to assess the impact of ABS. Waiting a bit seems sensible to me.

Another perspective comes from innovation research and theory. Ray Worthy Campbell’s work has been important in my thinking. Professor Campbell observes that it is very difficult for existing businesses to do things in a fundamentally different way. Building on the work of Harvard business professor Clayton C. Christensen, this is the idea that sustaining innovation is much more likely than disruptive innovation for most businesses. My belief is that many legal needs are unmet is because the only permitted form of business, professional consultancy in which expensive expert time is applied assessing and solving problems, is inherently too expensive to address many currently unmet legal needs. Putting these thoughts together, it seems very unlikely that traditional professional legal consultancies will evolve into something quite different if majority non-lawyer ownership is permitted. It seems logical to think that permitting majority ownership would lead much more to consolidation of existing practices than to transformation of existing practices into something different. It seems likely to me that new technologies and other genuine innovations are more likely to come from new providers than from existing providers. But encouraging evolution of existing traditional practices to deliver more than they now do seems worth-while.

A third perspective is practical. We do not have the regulatory infrastructure in Ontario to deal appropriately with significant new forms of non-lawyer owned legal service providers. On the other hand, regulating traditional practices with some non-lawyer ownership is more easily accomplished. An incremental regulatory path is attractive from a pragmatic perspective.

These are some of the principal reasons that caused me to conclude that serious examination of majority ownership or control of traditional practices should wait with examination of minority ownership being a better focus for the time being. I should add franchise arrangements to minority ownership as possibly a way of allowing evolution of existing traditional or consultancies “professional consultancies” to achieve advantages of scale such as branding, business and legal expertise and infrastructure.

Another area that appears to merit examination has been labelled ABS+ acknowledging the contribution of Professor David Wiseman to the ABS discussion. The Working Group will examine allowing and encouraging “civil society” organizations to deliver legal services. One version of this is analogous to multidisciplinary practices (MDP) in which non-legal services can be offered by legal practices. The MDP idea is that “one-stop shopping” can be attractive to clients. Flipping this idea recognizes that there are important organizations already serving other needs, whether for particular vulnerable populations, low income people or the middle class, through which legal needs might also be served. People who won’t go to a lawyer or paralegal’s office could access legal services where provided ancillary to other important services. Another version would harness existing organizations who are trusted in their communities permitting them to provide legal services as well as being intermediaries between their communities and legal clinics.

The fourth area for examination is the least well defined. We know that there are substantial areas of unserved legal need. Yet only lawyers and paralegals are permitted to deliver legal services in Ontario. There is no lack of lawyers and paralegals yet legal needs go unserved. Part of the answer may be innovation by traditional practices. Part of the answer may be better access to legal information so that people can better serve themselves. Part of the answer may be civil society organizations delivering legal services differently. Part of the answer may be that it is counterproductive only to permit licensees to deliver legal services – especially where they don’t. But part of the answer may also be that innovative practices, applying significant capital to technological and business innovation, may be needed. The traditional labour-intensive professional consultancy model has its limits and other business models, with different financing, may be of value to meet unmet needs.

As said at the outset, I don’t expect that those with harsh views on either side of the ABS divide will change their thinking because of this column. But I hope some will find elaboration of a less certain perspective to be of value.


[i] Susan McGrath, Malcolm Mercer, Constance Backhouse, Marion Boyd, Ross Earnshaw, Carol Hartman, Jacqueline Horvat, Brian Lawrie, Jeffrey Lem, Jan Richardson, Alan Silverstein and Peter Wardle


  1. Malcolm, thanks for this thoughtful and considered assessment of “non-licensee ownership or control of traditional law practices” in Ontario — that’s a solid and helpful phrase with which to describe the issue. My sole observation at this stage is that while law firm ownership is a subject of tremendous interest and importance to lawyers and paralegals, it’s not nearly as gripping a subject for the purchasers of legal services.

    My impression is that the fiercest resistance to non-licensee ownership of traditional law practices within the legal profession arises from many lawyers’ deep-set reluctance to risk surrendering control of their businesses to people who do not share their professional training and ethical standards, and who inevitably would compromise those standards in search of higher profits. We can debate that premise all day — it sure feels like we’ve been doing nothing but that for years now. While I have my problems with that premise, I’m also done arguing about it. If lawyers in Ontario wish to restrict ownership and control of their practices, they can, and they have, and that’s that.

    I suspect, however, that the people and businesses who purchase and receive legal services don’t really care if law firms are owned by lawyers, non-lawyers, or Martians. What they care about is getting the highest quality of services at the best possible prices in the most convenient feasible manner from the broadest array of qualified providers. The purchasers of our services, in short, want the market for legal services to be as robust and effective for them as is reasonably possible. It seems to me that that’s what the legal profession should want as well.

    The ABS debate, up to this point, has been a lot of “inside baseball” stuff — arguments among lawyers about the nature of the legal profession that don’t have much relevance to anyone outside the Legal Beltway. Out there, the perspective is closer to: “Look, we don’t really care about ‘non-lawyer ownership’ of anything. What we want is the ability make an informed choice among a range of qualified providers to meet our legal needs. Give us that information and give us those options, and we’ll take it from there.”

    I’d like to think that both the proponents and opponents of ABS in Ontario could at least agree that the market for legal services here is not working well at all. This isn’t just a matter of “access to justice,” although it’s obviously a problem that most Ontarians consider legal services to be outside their budget. The dysfunction of the legal market also includes:

    – a formidable degree of information asymmetry between buyers and sellers of legal services;

    – a narrow range of authorized legal service providers, restricting choice, convenience, and affordability;

    – the limits of the traditional labour-intensive professional consultancy model (as you point out);

    – documented low standards of customer responsiveness among authorized providers;

    – the absence of reliable and accessible measures of quality in legal services and their delivery;

    – the absence of recent notable innovations or improvements in the quality of those services;

    – the absence of mechanisms with which potential purchasers can even recognize they have a legal challenge; and

    – the absence of mechanisms with which potential purchasers can identify potential remedies.

    These are the most serious problems crippling the legal services market, and allowing law firms to be controlled by people other than lawyers or paralegals, while it would probably help, isn’t going to move the needle very far on any of them. As you point out, the example of ABS jurisdictions to this point is instructive: the gates of Hell have not opened, but neither have the gates of Heaven.

    So I think it’s time we moved outside the Legal Beltway and replaced the question “Who should own a law firm?” with: “How can we make the legal market better?” How can we improve quality, choice, knowledge, responsiveness, and affordability in this market, from the perspective of buyers? If we adopt that as our guiding purpose, I’m not sure how we can go far wrong.

    The mandate of the LSUC, if I understand correctly, is to regulate the provision of legal services in the public interest. Regulation, to my way of thinking, is more than simply banning unqualified providers — surely the threshold is higher than that. Regulating a market ought to mean maximizing its effectiveness and encouraging constant improvement in the quality, choice, knowledge, responsiveness, and affordability of the providers and services available therein.

    I submit that if we approached the issue from this perspective, we could do away with much of the defensiveness and rancour to which we’ve subjected ourselves lately. We could combine the efforts of well-meaning people on all sides and focus our collective attention on improving the position of the end users of our services. That seems to me the direction in which the Working Group is headed, and if so, I am definitely on board.

  2. To what extent might the TPP force changes to the legal services marketplace in Canada?

    For example, the following article, from an Australian perspective, says that “Australian businesses will be able to bid on computer and related services government contracts in all TPP countries and Australian law firms will be able to bid for government procurement contracts for legal services in Canada, Peru and Brunei.”:

  3. I agree that the approach taken by your working group was well-reasoned and took various views into account. I also don’t agree with the other writer’s view, that the Law Society has ‘killed’ ABS in Ontario. Rather, I thought the path chosen by the Law Society promotes a made-in-Canada solution to a deficit in innovation within our profession.

    I do caution against getting drawn into the other writer’s attempt to wedge politics away from principle. Good governance of the bar is axiomatically a political activity and so it is, of itself, neither good nor bad in terms of the public good just because regulation is political. As a system of knowledge, much of what we call ‘principle’ is an act of consensus, eg. the ‘principle’ that lawyers should be governed in a manner that serves the public ahead of the profession’s self-interest.

    At one point in our legal history, and perhaps the majority of it, there was in fact a consensus that the profession should protect itself from participation by outsiders. (Or, to follow Denning, protect the cricketers from the ‘newcomers.’) The self-image of law society qua vocational guild has changed because the ‘principle’ was decoded as simply the group’s chosen axis around which the world ought to revolve. At some point, we started to come round to the idea that we serve the public first, and to get there undoubtedly there was some collective self-interest: politics, by any other word would still be politics.

    Scientists define principles in terms of ‘laws’ although they are ways of aggregating the results from many experiments conducted by people who are located in different labs. We can learn from this. Once we accept that ‘principles’ come from the exercise of rationalizing the thoughts of a diverse group, we will graduate from the Law Society of old, when we valued decisions made by participants who were there because they thought like each other. It looks like we are graduating from that. If this process is what you mean by principle, then I say keep doing what you’re doing, Malcolm.

  4. I can vouch for the fact that the Task Force is comprised of people of the highest principles and integrity. I know them all personally, some of them very well. Disclosure: Malcolm is my brother-in-law and one of the finest people you could ever hope to know. That does not mean that ABS is a good idea. It most certainly is not. History is full of superior people embracing inferior ideas. The best of them, on additional evidence, eventually jettison the inferior ideas. In this regard, Malcolm and the Task Force members deserve great heaps of credit for backing away from the worst aspect of ABS – majority non-lawyer ownership. We now hope that they will continue in that righteous direction and back away from ABS entirely. You can criticize their reports and (now lessening) tendencies to promote ABS all you want, but you cannot legitimately fault their principles or their integrity.

    As is increasingly clear and obvious, ABS does not result in a net benefit to the public, but a net loss. It results in anti-competitive consolidations. It harms our ethos increasingly over time to the detriment of both the profession and the public. It is not necessary to innovation. And, if adopted, it is irreversible and expanding. For all of these reasons and more, it should be regarded as the greatest threat to the integrity of the legal profession and the public interest ever advanced in the history of the Western democracies. Any move toward ABS is a thin edge leading to great, irreversible harms to the public interest. The panacea, rainbow projections proffered up by the proponents do not stand up to scrutiny as the Task Force and others are increasingly finding out.

    Jordan Furlong says the public does not care from where they get their legal services and we should bend to that. Why should public ignorance be our guiding light? Why not educate the public as to the lessons of history, economics and human nature that show that turning over ownership of our unique position in society to non-ethos-sharing owners who have, instead, one overriding interest – return on investment – would be such a colossal error?

    Let us look at Jordan’s points and my responses in CAPS. He says:


    – a formidable degree of information asymmetry between buyers and sellers of legal services; THIS IS SOLVABLE BY EDUCATION AND INFORMATION, NOT ABS







    – the absence of mechanisms with which potential purchasers can identify potential remedies. DITTO

    With respect, it must be again pointed out that Jordan, as with so many of the ABS supporters, does not address directly the actual, real, overwhelming problem with access to justice and that is, well, you know what it is – the ruinous time and cost of litigation.

    If we are truly serious about improving access to justice and other real problems or issues, then we need to focus on two main things.

    One, we need to get serious about identifying ways to reduce the time and cost of litigation – the problem that dwarfs all other real and imagined problems combined. We need to get rid of steps in the process that even the judges say are a waste of time (and therefore money). We need to reduce the time and cost of litigation so that many more people can afford it. The goal should be to allow barristers to handle twice as many files in half the time. That would take care of the self-represented litigant problem (a problem that has risen in lock-step with the doubling of the number of lawyers per capita in the last 20 years, but that is a discussion for another day).

    Two, we need to get serious about adequate public education. For a pittance per lawyer, the Law Society can engage in extremely effective and credible public education initiatives including advising the public of their rights, how to protect them, and where to go to protect them; explaining why lawyers add, not subtract, considerable value to conveyancing and transactional work, wills, POAs and estates; advising the public on what to beware of such as unscrupulous lawyer behaviour such as pretending that you are the law firm that will handle the PI work when all you are really doing is acting as a referral house while taking a cut (which does nothing except drive up the cost to the client), or dropping flyers into mail boxes of houses with for sale signs whose owner had a lawyer for the purchase and pretending that you are not trying to steal the sale work from the home-owner’s existing lawyer, and so on.

    If the Law Society handled the advertising/public education initiative properly (not hard to do), there would be little need for individual law firms to engage in expensive advertising – an activity that merely adds to the overhead and is perforce reflected in the fees charged to the public. By the way, as is dead obvious, individual firm advertising is not really designed to increase the number of files opened across the profession, it is designed to garner for themselves work that would have gone to other firms. This greed-driven advertising arm’s race is ultimately costly to the public as the cost of it is passed on in fees. With some notable exceptions, I have found that the lawyers who advertise the most were already the ones I consider the last lawyers I would ever send a conflicted client to. Some awfully poor, corner cutting lawyers engage in heavy advertising. The really good lawyers are too busy to need to advertise though we might have to start now so as not to lose work to inferior, in-your-face lawyers.

    If we are not prepared to act on those two fronts, then shame, shame, shame on us because that is where the solutions are to be found. The solutions will not be found in selling us out to non-lawyers. That will only exacerbate the problems, create devastating new ones, and greatly disserve the public and our profession.

    The problems, the real problems, not the ersatz or self-serving trumped up ones, can be quite easily and very effectively dealt with. We just need the wisdom and the courage to do it.


  5. Perhaps a member of said public might chime in here. I find this dialogue fascinating; I’m a student of organizational change who has made the examination of professionalism a bit of an avocation, and as an SRL, a relative newcomer to the world of law.

    As an analyst of organizations, I cannot help but agree with the findings of the Working Group on ABS (Alternate Business Structures, I take it) as presented in the paper and here, but to even more wholeheartedly agree with the cogent analysis of Jordan Furlong that ABS might be something of the wrong tree.

    There are a few things that strike me about the Working Group’s paper, but overall I think it falls into the fairly common trap of failing to check its assumptions, particularly assumptions about the status quo. In truth, the necessary question that should have preceded what is otherwise an excellent analysis is “what is preventing a range of legal service delivery models and financing arrangements from evolving within the current business structure?” It’s always what you think you know but are wrong about that trips you up in analysis, and I have a sneaky suspicion that the smarter you are, the more dangerous that trap is. And lawyers, with some justification of course, are accustomed to always being the smartest people in the room.

    In my view, the real problem facing not just the legal industry, but also the courts and the judiciary, is that the delivery of legal services is lagging far, far behind the need or, looked at another way, the opportunity. This lag cannot be massaged into any vision of fulfilling a duty to the public, and it also doesn’t serve lawyers. On the other hand, following other jurisdictions down the wrong path doesn’t serve either group any better, and so it is maybe healthy for Canadian law to bottle up the pressure for change for just a little longer until a better course of action presents itself. But make no mistake: the pressure is there, it is doing harm, and if not granted healthy release soon, will release itself destructively.

    Contrary to the later comments of Bradley Wright, the guiding light offered by the public and its needs is not the light of ignorance. If one canvasses self-represented litigants, people unable to take legal action, or even litigants who have been represented, one finds remarkably intelligent observations from these deemed “ignorati” that refute most of his assertions. In particular, the assertion that service providers have anything of educational value to offer to service recipients about how the status quo really does meet their needs. I subscribe to the theory of smart markets, and if the market doesn’t think that status quo lawyers meet their needs, they don’t. You can’t educate people out of their reality, and the quicker it also becomes the service providers’ reality, the quicker the right innovations can be found to serve them. Failing that, internet legal advice from Indian lawyers studying Canadian law from abroad will be the next big thing.

    Failing to talk with (ie, listen to) the public is not the only failing of the legal services industry as it tries to navigate change.

    Another is the irony that, while this is a profession that relies on being consulted for its expertise, it does not seem to occur to lawyers to consult others for the expertise that others possess. The outcome is a level of dialogue about organizational change that really fails, on a multitude of occasions, to achieve the breathtakingly elegant quality of analysis that lawyers bring to their own work. Although this paper does bring a sophisticated analysis, the ABS dialogue as a whole is one of those occasions in which the addition of some experts in management, human resources, psychology, sociology, or economics (for example) would have enriched this discussion considerably.

  6. Hi Karin,
    With respect, you have misconstrued the following passage in my comment:

    ”Jordan Furlong says the public does not care from where they get their legal services and we should bend to that. Why should public ignorance be our guiding light? Why not educate the public as to the lessons of history, economics and human nature that show that turning over ownership of our unique position in society to non-ethos-sharing owners who have, instead, one overriding interest – return on investment – would be such a colossal error?”

    I was referring to the horrifying notion that selling the independence of the legal profession is the best way to deal with the public’s lack of caring about how they get their legal advice. The public generally does not know just how their own interests would be permanently very badly affected by the loss of the independence of the legal profession and by the inevitable juggernaut of competition-harming consolidations of ownership that would ensue. It is this ignorance I was referring to, and, sadly, that ignorance (more accurately described as misguided sincerity) can also be found within the legal profession.

    I have long argued that there a great deal we can do to address the needs of the public without recklessly or foolishly harming their best interests. For example, we can significantly reduce the time and cost of litigation (the problem area that dwarfs all other problems combined) so that far more people could afford litigation representation and litigation lawyers could serve far more people at affordable costs per file. Further, we can, for a pittance per lawyer, provide extremely effective public education. Further, we can continue to make accelerating use of technology and social media to reach out to clients and prospective clients. All of these are very beneficial. What would have a perverse and deleterious impact would be ownership of the profession by behemoths interested in only one thing – returns on their investments.

    Karin, I am totally in agreement with you that the public has very legitimate beefs about certain important aspects of legal service delivery. I have spent countless (I shudder to think how many) hours urging people in positions of influence to address these very issues to the great benefit of the public and the system, but the surest way to screw that up is to turn increasing swaths of the legal profession over to profit-seeking, consolidating investors. To the extent that the public is careless about that danger, then the public is ignorant to their very great peril. In those areas of legal service delivery that do feature excessively high cost, the public need for affordable legal services is one of my guiding lights.

    Over time, ABS will be increasingly seen for what it is. It is not benign. It does not provide net benefits to the public. It is permanent, if adopted. It is not a sea-change, but an all seven oceans change, and a toxic one at that. It is a sell-out to giant corporate interests whose own (largely admirable) interests conflict with the salutary legal ethos of the large majority of the legal profession. It is a sell-out to the one percent, a further hollowing out of the middle for the benefit of the fringe. It would inevitably taint the legal profession and reduce our standing as independent advisers. It would turn scores of thousands of lawyers into puppet employees whose first duty, tacit or otherwise, would be to flow as much money as possible from the pockets of the clients to the puppet-masters. It is unquestionably the worst idea ever to hit the legal profession, and it has distracted us from addressing the real problems. In systems and jurisdictions that have either eliminated the role of the lawyers in the delivery of certain legal services, or turned the lawyers into profit generators for the remote controllers of the strings, or both, the public has paid far, far more for those services. ABS is anything but a panacea.

    If you want to keep such very low cost legal services as conveyancing, wills, incorporations, and so on, then you will fight ABS and keep independent lawyers in charge of those services. If you want to bring down such very high cost legal services as litigation, then you will fight ABS and push for reform of the areas that need it. Thank you for your interest.

  7. I don’t actually have a problem with your assessment of ABS, nor with the working group’s assessment, which I see as being roughly the same. The problem I have with both is that they both implicitly romanticize the status quo, imbuing it with virtues it does not have. The polarization is amplified when we allow ourselves to examine the demonized alternative in great detail while leaving the status quo painted in conveniently broad strokes; a fuzzy background, if you will, for the detailed image of ABS that is being painted – and rejected.

    It has to be said, and said clearly, that in terms of service availability, the status quo is a disaster. It is already a service by the 1% for the 1%. For the optics, it extends its services to the indigent from time to time, but it does not do so as a service; rather, that is done as a magnanimous act of charity, on the whim of the lawyer in question, whether through pro bono or forced representation. The poor and indigent, when they are represented, are denied the dignity of hiring their lawyer, directing their lawyer, or firing their lawyer – even of choosing when to be represented. But for the middle class, who are not conditioned to being objects of pity but prefer to be treated with respect, there simply is no service. And I say that with profound respect for the lawyers who work for $250 an hour in small offices in diverse neighbourhoods making at least the essentials available to small businesses and small people. But even that is not the same thing as affordable service. To tell you the truth, if Superstore and Canadian Tire could each open a legal department, I can only see an improvement in service availability and affordability coming out of that. But at the same time, I can see the risks.

    Notice that I prefaced my remarks in the last paragraphs with “in terms of service availability.” In terms of service quality, the law is, as I’ve said before and will say again, a field with awe-inspiring capacity and achievement. The law is a tool that has been honed to a fine edge and high polish. It’s truly a thing of beauty. And paradoxically, as elite group theory will tell you, its exclusivity may well be the reason for its towering intellectual stature. That is the paradox that needs to be addressed for the access to justice project to be realized.

    I don’t disagree that the time taken up by litigation is a problem. But then let’s go to the source of the problem there, which in my preliminary assessment is the use of the adversarial system. For the bulk of problems in civil law, it seems to me that the inquisitorial system would be far more efficient and less discriminatory. We might have to quintuple the number of judges or more, but I suspect the time taken by many cases would be cut correspondingly. (I limit my comments here to civil law because however little I know about that, I know even less about criminal).

    We have this wonderful new metaphor in public dialogue so I may as well use it: ABS strikes me as functioning a bit like the dead cat on the table. I don’t disagree with the forensic analysis of the cat itself. But no one should fail to look carefully around the room, whether that’s at the status quo in law, at rules for firm ownership in other professions, at other alternatives to how firms do business, and at the change forces acting on the status quo that put ABS on the table in the first place. In short, is the cat that’s still prowling around the room really healthy? Funnily enough, there seems to be a strong consensus that it is not. But to assess what’s wrong with it, you need a vet, not a lawyer. The fact that lawyers just keep examining the cat themselves sends the message that they don’t really want to know.

    Since my comments here in essence recommend that lawyers analyzing their business model should hire in different kinds of expertise (although just reading some books might also help), I should disclose that although I do not work in any consulting capacity (or indeed at all), there is a remote possibility that I might someday do so.

  8. Karin,
    My assessment of ABS and the Working Group’s assessment are not the same. All that can be said is that the WG has dropped (for now, as they keep reminding us) the terrible idea that nonlawyers could own majority interests in law firms. They are still exploring the ideas of minority ownership (still a terrible idea – even a 25% ownership would give that block far too much influence within law firm), franchise arrangements (how is that not the selling out of ownership? The franchisor will increasingly call the shots.), and so on. The WG has made only one step toward the right outcome, but only that one step. They still have a long way to go before their assessment can be said to be similar to those who, rightly, oppose ABS. Frankly, the WG should be shut down and their talents and resources turned toward recommending real solutions to real problems.

    The increasing number of those who despise ABS are certainly not romanticizing the status quo where the real problems in legal service delivery are concerned. A mistake that many commentators make is to conflate all areas of legal practice into one mass. There is a world of difference between the services delivered by barristers (lawyers who go to court) and the services delivered by solicitors (lawyers who do mostly transactional law at their desks). In most of the World, the two groups are completely separate professions, and if you belong to one, you cannot belong to the other. It is an historical accident that, in Canada and the US, they are fused as one profession. In practice, lawyers tend to opt for one form over the other, but the fact that we are a fused profession means that many commentators confuse the high cost of accessing barristers with the low cost of accessing solicitors.

    Small firm solicitor services (which are the services the public accesses by far the most often) are extremely affordable and are delivered in an extremely competitive market. In jurisdictions where those services have been taken over by non-lawyers (usually by temporary predatory pricing followed by permanent much higher pricing once the lawyers are killed off), the costs of those services have risen dramatically while the quality of the services has plunged – the worst of both outcomes. In such jurisdictions, the small firm solicitors were sacrificed on the altar of high sounding ideals by people who either did not have a clue what they were doing or the harm they were causing or by people who were calculating the financial gains they would make if the thousands of highly competitive small firm solicitors were replaced by a handful of giant corporations. Be very careful what you wish for.

    While nothing is perfect, especially not ABS, the vast majority of the public has no problem accessing small firm solicitors at very affordable rates. You say Canadian Tire. For every Canadian Tire, there are over a 100 small firms scattered around in highly convenient locations where the vast majority of them also offer flexible hours. They are highly accessible and affordable, and each client is very important to the solicitor. How important would a given client be to a behemoth corporation operating a weeny law division generating less revenue than the tire department? Small firm solicitors treat their clients very well, recognizing that each client is important in his or her own right as well as being the absolute life blood of the practice. If Can Tire lost its legal client base, the impact would barely be discernible to the Corporation. If the small firm lawyer lost her client base, she would be out of business with the balance of the lease to pay and the severances to pay to her now unemployed staff, all out of her own now unemployed pocket.

    Note that I am talking about small firm solicitors. Solicitors in giant law firms are generally not so affordable to the ordinary person. Most of their work is delivered to large or well-off corporations and the well-paid senior executives who work there. Nevertheless, the clients of those giant firms are free to pay the large firm bills if that is what they want to do. A lot of it is tax-deductible while virtually all of the small firm solicitor work is not tax-deductible for their clients. Clients who deliberately avoid small firms and choose to use the large law firms for solicitor work do not need any help. By the way, some of those clients may favour ABS in the misgotten belief that their costs will drop. Not so. There are only four giant international accounting firms. In terms of capitalization, they utterly dwarf even Canada’s largest law firms. If they take over Canada’s large law firms, what do you think would happen to the cost of legal services then? Do you think that four providers, all headquartered outside Canada, would offer lower cost legal services here compared to the 30 large law firms that are here now?

    The problems with accessibility, affordability, and quality are not found on the small firm solicitor side of the profession. There is not the slightest doubt that the real problems are found on the barrister side of the profession. When Cross-Country Check-Up devoted an entire two hour program to the issue, every single caller identified litigation as the problem. Not one caller complained about the cost of a will or a conveyance.

    The average (!) cost of taking a litigation matter to trial is $40,000.00. That is close to the annual salary of the average income earner in Canada. Many barristers have said “I cannot afford myself”!! I know from experience that, in almost all cases, the issues can be analyzed and the outcome reliably predicted within the first month, week or hour of opening the file. Why in Heaven’s name does it take three years?? and $40,000.00??

    There are several reasons, but to keep this short (I recognize the irony), the major ones are (1) the government’s misguided and counterproductive desire to grind down the litigants before they reach a judge (who the gov has to pay for – same reason they ration doctors making you wait 5 hours in emergency and your grandmother 18 months before her hip is replaced), and (2) the explosion in the number of barristers to twice as many per capita compared to just 18 years ago, and who are now trying to make their livings off half the number of clients per lawyer. And do not make the mistake that they make livings that are too high just because some of them are high earners. The average lawyer cannot afford to retire before 75 years of age and even then their retirements are insecure as they have no pension plan etc. other than what they had the discipline to set aside (and is it enough? they don’t know because they don’t know how long they will live and in what level of health).

    The ruinous time and cost of litigation is the public real beef, and it is entirely legitimate. But what are we doing about it? Next to nothing. Instead of looking at effective ways to enable barristers to handle two or three times as many files for half or less than half the cost per file (which would also solve the self-represented litigant problem), we essentially continue to look at ways of sacrificing the already very affordable work of small firm solicitors in order to enrich consolidating, anti-competitive, entirely investment returns driven non-lawyer behemoths.

    ABS is evil in its own right, but its further evil is that it has distracted us for more than two years now from dealing with the real problems. That is compounding the problem.

    A full account of the issues would fill a tome, but I will stop here in my answer to your latest comment. Again, thank you for taking such an interest in this issue. It is of truly historical importance.

  9. Mr. Mercer’s article was regarding ABS, but as is often the case the subsequent commentary gets into other issues.

    This may be the first time I’ve seen online any comment about the significance of the distinction between the solicitor and barrister roles.

    Speaking (as I always do) as an experienced self-represented litigant (and someone who has yet to make use of any solicitor service), I think further critical examination of this distinction may be warranted. Why, for example, do Canadian lawyers typically choose to advertise themselves as “solicitors and barristers”? Related to that is the notion of the barristers’ “cab rank rule”, of which North American lawyers seem to be entirely unaware (and that has been the subject of some recent debate in the U.K., where the notion originated).

    This concerns me because it was evident early on in my trajectory of litigation that no lawyer was going to be willing to assist me, and that the real reason had nothing to do with the question of my ability to pay. In my first foray into court I faced counsel for three politically powerful entities: a provincial government tribunal, the municipal government of Canada’s third largest city, and Canada’s largest union. When I prevailed, the litigation continued in the tribunal’s forum and the parties (led by the union) decided to appeal the court judgment. I still couldn’t find a lawyer willing to even talk to me. And I knew that the law society would do nothing to assist me.

    On that basis alone it seems to me that there is no justification for the license granted to the profession to regulate itself.

  10. Chris, I hadn’t heard of the cab rank rule either. It’s a good point too to mention the issue of self-regulation, changes to which were recommended by the same Clementi Report that recommended ABS in the UK. And I notice that Sir David [Clementi]’s qualifications are outside the law. All that proves for the Canadian situation, of course, is that the issues are interrelated. The working group on ABS may have been a good response, but I would have put a few specialists from other fields on it.

    Bradley, thank you for engaging.

    Your description of the different types of lawyer business is indeed helpful, though your assessment of client satisfaction with them may not be correct (lack of clarity as to the legal needs of the CBC callers not helping there). The problem that you haven’t addressed is that (as Chris recounts) little people need big law too: constitutional law, administrative law, public law, and the like. That being the kind of law that keeps our layers of governance accountable, it’s actually democratic participation being held at bay by constraining access with such things as fees that are set with the assumption that they will be paid by corporate clients who will be deducting them from their taxable income.

    The issue of tax deductibility vs. not was the first piece of the access to justice jigsaw puzzle that I stumbled across, and the fact that it isn’t talked about much was my first complaint with the A2J dialogue. I’m happy you’ve mentioned it. The rest of the economic relationship between big lawyers and big clients illustrates pretty much why litigation is so time consuming. Simply put, everyone in it is on paid time, and so every procedural wrinkle benefits everyone in the room. Including the client’s employees and the courts themselves. These wrinkles have become such a habitual piece of law practice that when they are introduced into a case of, say, ICBC vs a hapless accident victim, proceeding without wrinkles doesn’t occur to anyone, since it doesn’t bother anyone except the victim.

    The wait for litigation is not correctly laid at the door of government. The government bureaucracy’s incentive structure is actually toward bureaucratic growth and empire building, as is that of the courts themselves. As far as I can see, the answer to both overlong litigation and thus the delay in getting to court lies within legal decision-making itself, ie, with the judiciary. I’ve noticed a couple of cases recently in which new trials were ordered, for example, which is a hair-raisingly expensive proposition. There does not seem to be a mechanism for separately accounting for the cost of making and fixing judicial mistakes – it all just goes back into the same line-up. Because a jury was involved in one case, it struck me that the retrial would also require thousands of hours of citizen time, which is also not accounted for in the system. It has long been my position that bureaucrats should have to pay for the effect of their decisions on citizen time out of their departmental budgets.

    One other thing on which I would take issue with you is on the question of caring, or in your terms, the relative importance of each client. Caring isn’t necessary to provide good service; in fact, it’s sometimes used as a cheap proxy for it. Clients don’t come because they are “important” to a firm; they come because they can get what is important TO THEM. And firms like Canadian Tire are very adept at using analytics to figure out what is important to clients, given that they rely not just on people making purchases, but on people coming back. So, I suspect, are the large accounting firms. Overall, it’s the paradox of the big, faceless, profit-hungry corporation: how did they get that big? Often, by being good at what they do.

    I’m not here to promote corporate ownership by any means. My primary hobby is studying education systems, and the role of corporate suppliers and stakeholders there is instructive. It is not exclusively bad or good, but what can be said with relative certainty is that they bring nothing to the table that small producers could not bring as well or better, and with a healthier effect on local economies. Education being compulsory, there are more parallels between education and law than I wish were the case.

    Actually, ABS+ scares me way more than ABS itself. Societies are mostly like churches; they function on belief systems. We are often lulled into thinking them beneficent and harmless because they are not profit driven, but all organizations have a primal urge to grow, and they will exploit their users in order to do so whether the growth is in income or empire (even that most innocuous of life forms, the co-operative). In societies, growth is achieved by propagating belief systems rather than by selling products or services. This means that societies are inherently more dishonest than corporations, something that can be observed by tracking behaviour rather than stated intentions in any organization that has staff and a budget (volunteer-only organizations are more likely to be benign – and not likely to open legal departments).

    Finally, comparisons with other professions and systems are very important. The accountancy example is instructive, but you haven’t provided an overview of the accountant entrepreneur sector nor of the bookkeeping business, which I think remain relatively healthy in the shadow of the Big 4. There are many, many analogous change processes to which the current challenges in law can be compared. The advent of paralegals, for example, reminds me of the RN/LPN debacle of 30 years ago. You’re quite right about the obsolescence/price increase pattern. In the RN case it was an inadvertent outcome of what I’ll call “status envy” in which the RN qualification was deemed insufficient and a BScN was required. The rest was as predictable as the increased mattress dumping that followed Vancouver’s imposition of a $20 per mattress fee for mattress disposal at the transfer station.

    It’s my contention that the access to justice conundrum could be fairly easily settled if protecting lawyer/law firm income and system power were not primary objectives. For example, it would be an easy start to say that parties should be able to request inquisitorial rather than adversarial judging. Or if it must remain adversarial, if one party chooses to self-represent, the other must also do so. Making lawyer fees non-deductible would have some good ripple effects too, as would other innovations concerning fee structures.

    If the ABS group really wants disruptive innovation, these are just a few ways one could start – as Leonard Cohen says (approx): everything needs a crack in it; that’s where the light gets in. The problem is that really, our natural instincts are to fix cracks in our systems, not create them. Alternatively, when we decide to change, instead of just creating little cracks, we decide to try to re-engineer the whole thing rather than letting change evolve. That’s where I would take issue with the recommendations of the Clementi report. I’m rather a fan of incremental, organic change where possible.

    All in all, I think that for Canada, the question remains unanswered: what is it that prohibits innovation and constrains service availability under current firm ownership rules? One cannot rule out the possibility that changing ownership rules would help promote innovation until one understands what stifles it now.

  11. Karin,
    I had not heard of the cab-rank rule either but have looked it up (a barrister must take whoever comes in the door provided the person’s case is within his/her area of expertise in order to prevent people never finding a barrister willing to take them on).

    There are many reasons why a barrister would not take on a matter, but, historically, most barristers have taken on whatever comes in the door because they enjoy the challenge. This is worsening as barristers have fewer clients each thanks to the explosion in the number of barristers per capita. Part of a good lawyer’s role is to talk clients out of proceeding with a law suit because it will not be worth the trouble – to the client, to the lawyer, to the system. As the poor Americans have proven, when you have far too many barristers per capita (and a system that features no adverse cost consequences for bringing frivolous law suits), this common sense approach goes the way of the dodo as barristers take anything, no matter how stupid, hoping to get a settlement from people who would rather settle than go through the litigation gauntlet.

    You say I have not addressed aspects of this. True. To do so would require a very lengthy book. But you can accept the broad sweep of my points and extrapolate from the examples I have given. |With respect, I find I sometimes have to address criticisms that show a failure to understand what I have said or that parse what I have said looking for ways around my points. I think you mean well but when you say that the example of Cross Country Check-up proves little, I despair. The point I am making, and giving a concrete example of, is that there is virtually no access to justice problem, either as to accessibility or affordability, on the small firm solicitor side of legal services delivery, but that there is a huge one on the litigation services delivery side. That is in fact where 99% of the problem is found.

    Another example is where you “take issue” with me on the “question of caring, or in your terms, the relative importance of each client. Caring isn’t necessary to provide good service; in fact, it’s sometimes used as a cheap proxy for it. Clients don’t come because they are “important” to a firm; they come because they can get what is important TO THEM.”

    The point I was making is that, in a small firm, the clients are extremely important, far more important than most any client would be to a behemoth. Small firm lawyers bend over backwards to please their clients. We do not regard them as numbers on a print-out. Clients may not come to small firms because they are important to the firm, but, because they are important to the firm, they are treated very well in a highly competitive market. As a result, the clients get what, in fact, they wanted – high quality services at highly affordable rates. Remember that it is in jurisdictions that have replaced small firm solicitors with giant entities where the clients get stuck with poor quality services at highly costly rates. So, be careful what you wish for.

    People use inappropriate examples all the time. For example, they say that Walmart delivers cheap goods. Sure, but it is because they use $1 an hour labour from the other side of the planet. Very little law can be delivered that way in ways that make sense. Some legal research can be done by research lawyers in India for less than the cost of doing that research here. Good. And lawyers in Ontario make use of such savings. But the lawyer in India cannot go to court with you, and cannot absorb or address the subtle nuances of the case including such things as the personalities of the people involved, the body language, facial expressions and tone of voice of the witnesses and clients (including your own client in the years, months and days leading up to either the court appearance or the settlement negotiations). Whole books have been written about this so I keep my reference to it short, but understand this – what looks like a good idea from the outside frequently is exposed for being a bad idea once you know the issues from the inside.

    It was once proposed that wills could be done by the client himself using an algorithm with a “free” lawyer review by electronic means at the end. I was able to show that, far from being a benefit to the public and the system, it would worsen many problems and create new ones. It was, however, a perfect example of the type of thinking employed by many of the ABS supporters, namely, take very affordable work away from the small firm solicitor bar, sell it out to foreign-owned behemoths, ignore the problems thereby created, pretend that a major step toward improving access to justice was thereby taken to deflect attention away from the real problem, and do nothing at all about the real problem – the ruinous time and cost of litigation (or, perhaps to refine that a little, the ruinous time and cost of non-contingency fee litigation. Contingency fees bring their own problems (for example, much higher insurance costs passed on to the public in the form of ever higher insurance premiums), but that is a discussion for another day).

    I agree with you that the uneven application of tax deductibility of legal costs is a major problem in big company v. little guy litigation. In a perfect world, legal fees would not be tax deductible to any litigant (making them tax deductible to everyone is a bad idea because (a) it would too costly to the tax system and have to be made up elsewhere such as in higher income or consumption taxes, (b) it would encourage even more or longer litigation if it were being subsidized by the tax code, and (c) the gov would never agree anyway). The problem is that big companies would simply re-characterize much of their legal expenses as other kinds of expenses to the extent they could get away with it. Nevertheless, it would be interesting to try a regime in which no legal expenses were tax deductible.

    With respect, you are wrong when you say: “The wait for litigation is not correctly laid at the door of government. The government bureaucracy’s incentive structure is actually toward bureaucratic growth and empire building, as is that of the courts themselves. As far as I can see, the answer to both overlong litigation and thus the delay in getting to court lies within legal decision-making itself, ie, with the judiciary. ”

    Certainly, some barrister behaviour, especially in an environment where there are far too many barristers per capita, is a serious concern, but the government has the bigger role to play here.

    First, the gov desires to limit public access to judges for the same reason they try to limit access to doctors. The gov has to pay for the judges and the doctors and tries to keep a lid on their numbers by grinding you down on the way to getting to one. In the legal world that means having numerous steps between opening a litigation file and getting through to a trial. There is the pleadings stage, the discovery stage, the mandatory mediation stage, the pre-trial stage, and the trial stage (leaving out an appeal stage and the time spent on research). Each stage is separated by a good six months. Each stage has to be prepared for including refreshing your memory as to the minutiae of the details (where most cases are won or lost) of the particular file (because if the lawyer shows up unprepared, her client will not thank her). Preparation takes time and time takes money.

    Only two stages are absolutely essential – pleadings and trial. Many judges have described the mediation and pre-trial stages as a waste of time. I agree. But the gov says those two stages are useful to help the public reach settlements without costly trials, and sometimes it actually works that way. But if those two stages were removed, you could greatly shorten the process, and less time spent means less money spent. A more cost-effective way to structure the litigation system is, for all but a small number of extraordinary cases, to cut out those two stages, reduce discoveries to one day per side, force all parties to exchange Offers to Settle, make the lawyers really do the analyses of what a fair outcome would be as part of encouraging early settlements, and then severely punish parties (and in appropriate cases their lawyers) who cause unnecessary trials either because they did not deliver or accept a fair and reasonable Offer to Settle. Most cases can be wrapped up in 90 days; it is largely the gov’s fault that the system allows the exploitation of too many stages resulting in higher costs. That the gov does so in the belief that it is saving them from having to hire more well-paid judges is a perfect example of being penny-wise and pound-foolish. The hidden costs to the economy, productivity, and the health care system of keeping people in lengthy, highly stressful litigation may be difficult to calculate but it is nevertheless gargantuan.

    Same with doctors. By making it hard to see doctors in a timely way and by discouraging people from even going to emergency (who wants to sit there for five hours being sneezed on by who knows what?), easy to treat conditions become expensive to treat conditions thanks to the delays and discouragements. But, perversely, it all makes the bean counters happy.

    I agree with you about empire building within the general bureaucracy, but I disagree with you that the same thinking infects the judiciary. I know many judges; they are crushed with the workload. They do not need to make more for themselves. No judge has an empire to build. They do not determine how busy they will be. They do not grow their own bureaucracies. Most of them have to share secretaries from a pool and they have little or no hiring power. Judges cannot delegate their work. No one else can sit there hearing the evidence, watching the witnesses, running the proceedings and maintaining the decorum needed for a respected dispute resolution process. No one else can come to the decision and no one else can write their reasons for them. If they ever send a case back for a new trial, they do so on the basis that such a step is absolutely necessary to fairness in the process. They do so knowing that all their own time they have already spent on the case will be essentially wasted (it is not always wasted by the parties as sometimes the reasons for sending the case back either inform the parties on a better way to proceed the second time or spark a settlement).

    You say that “comparisons with other professions and systems are very important.” Actually, they can be very dangerous. Law is not like other professions and systems and it is crucial to keep those differences in mind. I have used some comparisons (doctors) but I do so with some reluctance and with a view to helping people, who little experience or understanding of the legal world but who have had exposure to the medical world, understand a little better by analogy.

    You say, “It’s my contention that the access to justice conundrum could be fairly easily settled if protecting lawyer/law firm income and system power were not primary objectives. For example, it would be an easy start to say that parties should be able to request inquisitorial rather than adversarial judging. Or if it must remain adversarial, if one party chooses to self-represent, the other must also do so. Making lawyer fees non-deductible would have some good ripple effects too, as would other innovations concerning fee structures.”

    Let us start with “lawyer/law firm income”. While some lawyers do very well, most lawyers make literally half of what they public thinks we make. It appears that you put no stock into my point that the average lawyer retires at 75 on a very insecure basis, but it is true. If you want people to do this complicated, stressful, no security job, then you have to pay them fairly. That does not mean overpaying them, but it does mean paying them fairly. If you don’t, then over time fewer and fewer people will take on the headaches. At that point, thanks to the scarcity of the remaining people willing to take on the headaches, the costs to the public would then rise to above what small firm solicitors charge now!!

    In any event, in the world of small firm solicitors, there is no chance of overpaying them given that, in Ontario alone and in just the field of real estate law, there are about eight thousand solicitors all competing ferociously with each other. The real danger lies in replacing the eight thousand with four behemoths. Don’t dismiss that. In the US, giant title insurers used temporary predatory pricing and government inertia to wipe out about 200,000 real estate lawyers. The Americans now pay far more for conveyancing services than Ontarians do and, in exchange for the staggering extra cost, they get lousy service from a handful of companies that collectively have an abysmal record when it comes to fixing title problems and paying claims. According to giant ratings agency, Fitch Inc., four companies control 87% of the market. What do you think would happen to the market if you replaced eight thousand small law firm solicitors with four American-owned corporate behemoths? Be careful what you wish for.

    By the way, I am not anti-big business per se and I think the leftist attitude toward them is blinkered and inept. Big businesses are needed in such areas as natural resource exploration and development, intra- and inter-continental transport, international air travel, banking, and so on. I am just opposed to them when they take over areas that do not need them and then warp the market place entirely to their satisfaction. I agree with you that many large corporations are successful at what they do, and I say that many of them deliver what the public wants and needs very well and we are all grateful to them for existing. But not all of them fall into that beneficent category. To use an extreme example simply to make the point, the Mafia is a huge corporation. It delivers what some people want, but those wants often ruin the lives of those people. Does the Mafia care? Not a bit. As long as you are still buying the crystal meth and burgling houses to get the money to give to them, the Mafia is content. It may be good for the criminals, but is it good for society, or the needy customer for that matter? Coming back to Earth, just because big business is very beneficial in some areas does not mean that they are always beneficial in all areas. As far as giant companies owning law firms is concerned, how long would it take before we would see a large firm destroyed or badly tainted by being owned by an Arthur Andersen, Enron, WorldCom, AIG, Lehmann Brothers, Bear Stearns, Royal Bank of Scotland, Société Générale, Volkswagen, Tesco, and on and on and on. We have about one big law firm failure a generation and it is almost never the result of ethical failures.

    You refer to “system power”. The system is set up by the government. There is much they could do to improve it. Despite some stabs at it, they have either failed or not been interested enough, or have made the penny-wise, pound-foolish decisions alluded to above.

    Inquisitorial judging has its advantages. It is used in many parts of the world. Unfortunately, it also has its disadvantages. Many of those parts of the world look longingly at our adversarial system. Nothing is perfect. The better approach is figuring out how to get in front of a judge, regardless of the type of judging, at far less time and expense.

    You say, “if one party chooses to self-represent, the other must also do so.” The main reason for having a lawyer in the first place is to prevent yourself from being taken advantage of by your wilier opponent. Few members of the public would come to court with equal abilities to prosecute their case. Hiring lawyers levels the playing field. To use a simplistic example (please do not misconstrue it), I submit that it would not be fair for a stay-at-home husband who has been dominated by his tough-as-nails-businesswoman wife for 20 years to be forced to go up against her on his own in court simply because she, craftily and knowing her advantage, elected to represent herself. I say simplistic because men are just as capable as women in my observation; however, it serves as a clear-cut example of the unworkability of “if one party chooses to self-represent, the other must also do so.”

    As for innovations of fee structures, there have been as many fee structures as human ingenuity can devise. There is the hourly rate. There is the block fee. There is the contingency fee. There are the part hourly, part block, part contingency arrangements. There is the legal aid fee and, yes, there is the no fee. There are electronic payment arrangements, and instalment plans. There have been barter arrangements. Atticus Finch (first incarnation) accepted a farmer’s bag of potatoes as his fee (I assume he remitted about four in ten of the potatoes to the government). You name the payment arrangement, it has been used and is being used.

    Of course, some people think that legal services should be free. No kidding. There are those who think legal services are a necessary service, like education and medical care, and should be free. Of course, there is nothing free about such services. They are paid for by ever increasing taxes, a good third of which is wasted.

    On the assumption that most legal services will continue to feature a direct cost to most clients, then what? No one can sensibly argue that small firm solicitor services, the services most people need most of the time, are anything but highly affordable in a highly competitive marketplace. Let us not worry about something that routinely costs $200 and let us worry about something that routinely costs $20,000. So let us move on to the services that are extremely expensive. We find them in two places or categories: (1) the ruinous time and cost of litigation, and (2) the big firm structure. With exceptions, the larger the firm, the higher the cost of their services.

    I have talked about what to do about the ruinous time and cost of litigation here and in greater detail elsewhere. The problem in larger firms is not the billable hour, the hourly rate, the availability of contingency fees or any of that. The problem is the billing target. While this is not limited to big firms, it has its greatest impact in the big firms. The billing target is the amount of revenue the lawyer (from junior associate to senior partner) is expected to bill during the year. It is imposed by the firm’s management/compensation committee. In firms large enough, most of the lawyers, especially the newer ones, barely know the members of the committee, and may not know them at all in multi-city firms. While the target is ostensibly based on prior years’ experience and an expectation of continuity plus annual increases, it is essentially an artificial construct. No one really knows whether the work will actually justify the target. The target puts tremendous pressure on the lawyers to hit their targets because, if they don’t, they might not be made a partner or they might see their partner draw reduced. This in turn causes some of those lawyers to manage the files, not necessarily in the client’s best interest, but in the interest of ensuring that, by the end of the year, the lawyer will have hit his target, preferably exceeding it because exceeding it marks you as a star in ascendancy in the firm. Such lawyers are working to please the management committee more than they are to please the client.

    I am a sole practitioner. Like most small firm lawyers, I set no billing target whatsoever at the start of the year. I just do the work that comes in as efficiently as possible, bill it in my highly competitive marketplace, and at the end of the month and year, my bookkeeper tells me what I made after paying my modest and penny-watching overhead.

    I am able to handle the files very efficiently because I have a great incentive to do so. For one thing, I have to compete with ferocious competitors some of whom do not do the work at as high a level as I do (thankfully, most do, I believe). For another, as a result of caring deeply about my clients and desiring to impress them with the quality of my work and the competitiveness of my fees, I am a very busy lawyer. I have zero need to drag out anything or conjure up additional work to artificially generate more fees. The model I work under is the very best model to ensure that members of the public get excellent services for affordable and competitive fees. All other models, as cold experience proves, produce either worse services or higher fees or both. And the surest way to produce, and worsen, such unwanted results is to turn ownership of the profession over to profit seeking, anti-competitive, consolidating non-lawyer owners.

    I have been asked many times over my career to join larger firms. I have always been flattered but I have always declined. I could never practice under a billing target model and all large firms have them. When I finally retire, I will be more inclined to turn my practice over to a couple of young lawyers who would not operate under a billing target imposed on them by a remote management committee.

    Lastly, you ask, “All in all, I think that for Canada, the question remains unanswered: what is it that prohibits innovation and constrains service availability under current firm ownership rules? ”

    The answer is Nothing.

    You also say, “One cannot rule out the possibility that changing ownership rules would help promote innovation until one understands what stifles it now.”

    Nothing stifles it now. There is precisely nothing standing in the way of innovation within the legal profession. We can create our own, and have and will continue to do so. We can learn from elsewhere, and have and will continue to do so. We can adopt good moves from elsewhere, and have and will continue to do so. To the extent that adopting a useful innovation costs more money than is currently available within the firm, we can borrow it. At least then, once the loan is paid off, you can get rid of the lender. Nor can the lenders have any real say in how you run the firm. In these two important contexts, it is far better to pay interest than dividends.

    But, if you raise the money by selling equity to non-lawyers, you can never get rid of the non-lawyer owners without their consent and they will not consent. Further, as owners, they would have a real say in how the firm is run. ABS supporters say that rules will be put in place to prevent that, but that is naïve at best and foolishly dangerous at worst. As long experience shows, over time, nothing would stop the battering ram of big money. Whether tacit or overt, the wielders of the big money club would come to dominate the ethos of the law firm. No chance of any other outcome over time.

    Already, some see the practice of law as nothing more than a business. While there are certainly business aspects to it, most lawyers continue to see the practice of law as a calling imbued with laudatory ethics that we take very seriously. Bring in ABS and in one generation or less you could kiss that goodbye. How quickly can it occur, you might ask? England has had ABS for about three years (thanks to a report written by an accountant (Clementi) who had never practiced law and did not understand it, and thanks to a government that was only too happy (but should have known better given their history) to weaken the legal profession); yet, in just that short space of time, the CEO of the Solicitor Regulatory Authority for England and Wales gave a speech recently in which he said that the practice of law should be regarded as a business first. If the CEO of our Law Society were to say that, I would regard it as a firing offence. The practice of law must always be, first, the delivery of ethical legal services in the best interests of the client. Only after that should the business aspects come into the picture.

    Karin, be very careful what you wish for. Be very careful about dirty bath water when trying to bring in a baby – a baby that is often misrepresented, a baby regarded as a panacea with no proof or track record of being so, a baby that has been infected with a highly contagious, deleterious virus by Trojan horsetraders – the virus of anti-competitiveness, of frenzied consolidations, of future tacit market collusions, of accelerating erosion of the legal ethos that has so greatly benefited the public and our democracy, of profit seeking by those whose primary legal duty is to their corporate shareholders, not to the clients of the law firm.


  12. P.S.
    More about barristers. God bless them. Almost all of them work very hard doing a very hard job and they do it with high ethical standards despite many pressures. Their role is to help people resolve their legal disputes through a process that replaces much worse alternatives. If we did not have barristers, we would have to invent them to avoid going back to settling things ‘the old-fashioned way’.

    While I sense that the system is worsening precisely due to the huge increase in their numbers and the cutting in half of the number of clients per barrister resulting in a need to make twice as much money per client in order to maintain a standard of living that only affords you an insecure retirement at 75, I still maintain strenuously that most of the problem of the ruinous time and cost of litigation (the “RTCL”) is mainly not their doing. It is more systemic than anything. That is why I advocate for changes to the system, and for a rationalization of their numbers. We now have as many lawyers per capita as the Americans do. Nobody should want the American legal environment here.

    I believe that a better system would allow barristers to handle twice as many files for half the cost per file. A win-win for everyone. So far, little has been done to bring this about.

    Some commentators believe that hugely increasing the number of lawyers per capita will drive down the cost of legal services because that analysis seems to work for, say, the supply of refrigerators. I point out to them that, if that were true, then the Americans would have the lowest cost legal services in history. Instead, they have the highest cost legal services in history. The main driver of that is the number of American lawyers per capita. We used to have half their number, but, frighteningly and in about a mere 18 years, we have caught up. That is not a race a society wants to win if it knows what is good for it.

    What I call the classical Greek professions – medicine, law, engineering, architecture – do not follow standard economic theory of supply and demand to the same degree as most other sectors of the economy. The reason is that, to a degree that refrigerator manufacturers and sellers can only dream of, the professions can generate demand for their services and the consumers have a hard time knowing whether the services were truly needed in all details. That is a major reason why the professions are regulated, and why there is no Refrigerator Society of Upper Canada. Consumers can tell when they need a fridge and how many. That market is driven by three things – the number of cut-outs in countertops including existing and new housing stock, the failure of the old fridge to work, and a desire to keep up with the Joneses. The fridge consumer has far more control over his need for a fridge and what type of fridge and at what cost than a legal consumer does over the type, amount and cost of legal services needed. It is a testament to most barristers that they have, so far in Ontario, practiced at a high level of ethics.

    One of the worst things that can befall a society is too few lawyers (e.g., China). But not far behind is having too many (e.g., America). The trouble is that there is no one in charge of the rationalization referred to above. The law schools have bloated up in size and compounded the problem by failing virtually no one. They used to flunk out one-third of the first year students (my father’s era) and then twenty-five percent (my era), but now virtually no one fails. The government turns a blind eye to the waste of scarce education resources this entails. The Law Society, rightly in my view, believes that the bar admission exams are an inhumane point in the continuum to cull out a third of the students. It is unfair to do that at the last stage after the students have spent years acquiring great gobs of student debt. It should be done, as it was done for generations, by the Christmas exams of first year law school. That has not been done since the early 90’s when, apparently, the law schools were told by their universities to stop failing the law students to make up for the lost tuition and government grant revenue that occurred when the Rae NDP cut medical school enrolment. What practically never failing law students has to do with the public interest downstream is never discussed.

    Another rarely discussed component of the RTCL is the client base itself. Every barrister can tell you stories of clients who would not listen to reason, who insisted on fighting over every piece of cutlery, who were incapable of a business compromise. Now, if you have more money than brains, few people are going to stop you from wasting everybody’s time (unfortunately), and those people do not need much help from us. But the great swath of the middle and lower income classes do need a system that does not cost a year’s income to settle a dispute, and this is even more true when the case involves a little guy with middle to lower resources in battle against a combatant with sufficient resources to grind the littler guy to dust.

    The best way to deal with the twin inequities of combatants with mismatched resources and the RTCL even when the combatants are equally matched is to make the whole process far less costly than it is. That means changing the litigation gauntlet, shortening it, and putting in a combination of incentives and disincentives to encourage and even ensure, to the extent reasonably possible, fair and early resolutions. Both have to be present. If the system does not produce fair resolutions, it will lose the confidence of the population. If it does not produce early, i.e., affordable, resolutions, then we have not improved a thing.

    There are solutions. It just so happens that ABS is not one of them (and some of the owners of ABS structures in the few ABS jurisdictions make no bones about it). Once you add another layer of ownership, you add another lawyer of profit-takers, not to mention the overhead of the plush offices of those non-lawyer owners. Adding layers of cost to the delivery of legal services does not bring down the cost of those services to the legal service consumer. Of course, the supporters of ABS trumpet economies of scale as their solution to the added costs of the added layers, but that does not bear scrutiny. I can explain why later if you like, but right now I must bid you Cheerio.

  13. Bradley’s comments in a nutshell: the “law” is special and therefore:

    1. It’s not a business; it’s practiced for much more noble means than the pursuit of profit
    2. It’s largely immune from the positive effects of choice and competition (except if it’s limited to being exclusively among small firm solicitors, then it somehow works, but only in that context)
    3. Others from outside the profession can’t possibly understand it, and therefore analyze it, criticize it, or find ways to change it; their skills and experience can’t possibly contribute to the debate or solution
    4. Clients are too dumb to decide what’s best for them

    Bradley: if a member of the public has decided to give their business to Canadian Tire law, because they have determined this better matches their needs then a small firm solicitor, why should we stop them? (Assuming Canadian Tire is regulated to uphold personal standards of competence.)

    Also I just want to point out that price is but one dimension of competition: let’s not forget service and performance, of which ABS can contribute to both.

  14. Bradley, I can’t follow you down all those labyrinthine rabbit holes but it’s interesting to read since there is a lot of information about the practice of law in what you say, and I don’t disagree with a lot of it. In any event, my interest is not in ABS itself nor in the practice of law but in the quality of analysis that I see being brought to the issue. Poor quality of analysis in any part of the A2J initiative is toxic to the entire enterprise, and that is why I took the time to comment.

    One of the most interesting items in the Access to Justice file is lawyers’ status as officers of the court, which means that their first loyalty must be to the court. That is why lawyers will never solve the Access to Justice problem – because the crux of the issue is situated within the courts and is coded into the law itself, and lawyers simply cannot go there. Governments also cannot freely evaluate the courts because their work goes there for evaluation. Only citizens can critically evaluate the courts, and even then, it is risky to do so if one plans at some point to appear in them. I take the chance of doing so only because the matter is of such enormous importance. Also I am getting a bit tired of watching an empire being built up within law around the Access to Justice file that has no hope of ever being able to solve the issue because its perspective is blocked by the magnitude of its stake in the status quo.

    When one sets up a committee such as this working group, one essentially decides at the committee formation stage whether the committee will solve the problem or not. So far, no committee structure that I’ve seen in Access to Justice is designed to solve the problem. All are designed, rather, to perpetuate it. Even though I do not disagree with the findings of this working group on ABS, my point remains that no group of inside stakeholders alone has the capacity to perceive or alter the real barriers to innovative legal services. Paradoxically, one needs to understand the insider experience, but insiders cannot understand the outsider experience nor place it above their own values – especially not when they are officers of the court.

  15. To John Smith:
    1. Whether you realize it or not, law is not first and foremost a business. It does have loftier priorities than simply making money. There are business aspects, of course, but our ethics require us to give advice that is in the best interests of the client, not the lawyer, and most of us do that. Does a car salesman try to talk a consumer out of buying a car? Never. But lawyers routinely talk clients out of pursuing more expensive avenues even though the lawyer would make more money otherwise. On other occasions, we counsel clients to spend a little money to avoid having to spend a lot. For example, we urge people to have wills. As a profession, we make far more money when people do not have wills and even more that than when people try to do their own even when using (disclaimer-ridden) kits and blissfully make mistakes that they have no clue they are making.

    2. There is tons of competition in the legal world – tens of thousands of other lawyers, paralegals for several areas, online services, and even the self-represented who could have afforded a lawyer but choose not to. The danger that ABS supporters and others who have an uniformed or irrational loathing of lawyers do not seem to understand no matter how compellingly the danger is shown and proven is that replacing independent lawyers with giant corporations is certain to have adverse consequences. I repeat that, in jurisdictions that have replaced, say, real estate lawyers, with giant corporations, the result has been far, far higher costs to the public and a terrible reduction in services. In the US, the title insurance industry killed off the bulk of the real estate lawyers with temporary very low pricing. Once the lawyers were eliminated (a six-month exercise), they jacked up their costs and deliver lousy service. The government of California calls the US title insurance industry “a dysfunctional industry in which the public pays too much.” The Supreme Court of Iowa called it “an invidious form of business”. Is that what you want here??

    3. Most areas of practice are, in fact, highly affordable on any rational analysis, and have not been improved by taking those areas away from lawyers other than in some law low consequence areas such as traffic court.

    4. Some areas of practice are very, very expensive. The one that affects most people is litigation. It is ridiculously expensive and I have been advocating for years that the Law Society set up a task force with one goal – to make effective recommendations to bring down the ruinous time and cost of litigation. Instead, there has been pussy-footing around the edges and all kinds of time and resources wasted on trying to figure out ways to sell ourselves out to profit-seekers and self-interest, short-sighted opportunists.

    5. I have never said that outsiders cannot add to the debate, but let them become better informed. A lot of the analysis is no more sophisticated than:

    “Some law is expensive, therefore all law is expensive. Some lawyers are greedy swine, therefore all lawyers are greedy swine. I don’t fully understand how mindbogglingly complex the law is, therefore it must be simple. I choose to ignore the naked profit-seeking motives of those who would sell out the independence of the legal profession, therefore I choose to assume the most altruistic motives on their part, an altruism that I choose to deny the lawyers who, in fact, exhibit it far more than is realized. I do not understand how immensely valuable the total independence of the bar is to the health of our democratic system because I live in easy times when democracy and the rule of law seem assured and perpetual, therefore I discount that hard-won and easily harmed historical independence as having little value.”

    I say nuts to analyses like that.

    6. Clients are not dumb, but they can be duped individually and en masse as the American public was when they abandoned the real estate lawyers to go to the enticing low price of the title insurers unaware that the low price was nothing more than a poisoned apple. The fact that the Americans now have a horrendously expensive conveyancing system in the absence of the lawyers is something they either bitterly regret (if informed) or are ignorant of (if uninformed). Ignorance is bliss, they say, but the Americans are paying through the nose for it.

    7. You do not seem to think that I have the best interests of the public uppermost in my mind but, in fact, I do. There is no comparison between my longer view and devotion to the public interest and the naked, self-serving claptrap offered up by the rank opportunists who see ABS as the key to making vast amounts of money for themselves. There is also no comparison between my realistic assessment founded in history, experience, economics, philosophy and human nature, and the naïve trust of the misguided true believers who somehow think that ABS is a panacea, and that the nonlawyer behemoth corporations will behave more altruistically than lawyers do even though lawyers have an ethical obligation to act in the best interests of their clients and corporations have a legal duty to act in the best interests of their shareholders – a very different ethos as I am sure you can appreciate. Many supporters of ABS blithely ignore or dismiss the bulk of the evidence from the ABS jurisdictions that proves that ABS is anything but altruistic. There is also no comparison between my desire to do something concrete about the real problem of access to justice (the ruinous time and cost of litigation) and the desire of others to sacrifice very affordable areas of law so as to pretend to have “done something” about access to justice while, in reality, doing next to zippo about the real problem.

    John, you say that clients should be allowed to giver their legal business to a nonlawyer owned behemoth if they so choose. What if that choice is a sensible choice for, say, six months to a year, but then turns to ashes for the next hundred years? Does that make any sense or is that breathtakingly short-sighted? I think it is the latter, because experiences elsewhere have proven that it turns out to be the latter. I keep saying that people need to be careful what they wish for, but many cannot bring themselves to do that. Puzzling.

    You also say that price is but one dimension of competition and not to forget service and performance. Well duh. Leaving aside litigation which can be horrifically expensive (not all of it; there are countless examples of barristers saving or earning for their clients large amounts of money as a result of their excellent advice), the large majority of lawyers stay in business by delivering high quality services at high levels of performance at highly competitive fees despite being constrained by an ethical framework that does not constrain nonlawyers. We have more offices blanketing Ontario than all the big retailers put together and almost all of us have flexible hours for those clients who cannot come in between 9 and 5.

    You also say that ABS can contribute to service and performance. On what evidence? And at what cost? Would adding two layers of expense (return on investment and head office overhead) bring down the cost of legal services? Not on this Earth. Would saddling far, far more lawyers than at present with ever rising billing targets set to please the remote investors bring down the cost of legal services? Not on this Earth. Would creating a system that would allow a frenzy of consolidations in the market place bring down the cost of legal services? Not on this Earth. Do you think that the economies available to the Walmarts ($1 an hour workers in sweat shops half a planet away) can be translated to the delivery of almost all legal work? Not on this Earth.

    ABS is an evil. Full stop. The worst idea to hit the profession probably ever. In some ways, perhaps, it may have some superficial appeal (at best) but it is fundamentally unsound. The biggest losers will be the public.
    nothing more than funnels of money from the clients to the investors

  16. To Karin:
    “Poor quality of analysis in any part of the A2J initiative” is exactly what I have been fighting since day one. Broadly described, the poor analysis is found under two main headings: The historically awful notion that ABS is the panacea or even part of the answer, and The failure to do something effective about the ruinous time and cost of too much litigation, which is, of course, dead obviously, the real A2J problem.

    Lawyers certainly can help to solve the problem, but we will need the government’s cooperation, a cooperation I am certain that they would give us upon being given rational, workable and effective recommendations toward solving or at least lessening the real problem.

    I agree with you that we have not as yet set up a proper committee structure to solve or significantly lessen the A2J problem. As far as I am concerned, the ABS Working Group output is calculated to worsen the delivery of legal services and any other relevant committees are just nibbling around the fringes.

    I disagree with you that a group of inside stakeholders cannot on their own perceive or alter the real barriers to innovative legal services, or understand the outsider experience or place it above their own values. We live in that outside world and our values are informed by our ethical environment. Perhaqps many outsiders have trouble understanding the deep desire of many lawyers to act in the public interest because, unlike lawyers, they do not have to act in the best interests of others in their own fields the way we have to on an hourly basis in ours. I do agree that nonlawyers have an important role to play and much to contribute to the thinking, but it is critical that that thinking be informed by all the factors at stake – factors that lawyers do have a greater understanding of by virtue of being enveloped with them constantly. Of course, there will be elements in the legal profession who will resist any changes. That is both human nature and the product of their self-interest in maintaining, say, a litigation system that generates so much activity and revenue. I maintain that if the litigation files could be completed in half the time at half the cost, barristers would have twice as much work and be in the same position as currently. I think they would be an even better position because the work would become a lot more satisfying.

    Note also that any outside investor/owners of litigation law firms would not be interested in the slightest in a litigation system that would reduce fee revenues, settlements and court awards given that any such reductions would necessarily adversely impact the returns on their investments. That is yet another reason why ABS, far from being a boon to the public, would be an incalculable disservice to the public.

    There are innumerable ways to improve the delivery of legal services and many of us are using as many of them as appear sensible or cost-effective, and will continue to do so. I say that there is a lot more that we could do. I say that ABS is wholly unnecessary to do it, and would usher in far too many other major, irreversible problems. I say let’s kill that evil idea deader than dead and get on with identifying and adopting all the beneficial innovations that can be conjured up.

    All that the ABS debate has done is fool some people, distract others, give hope to would-be opportunists, and waste our time and resources to the detriment of getting on with the real job. Talk about frustrating.

  17. Chris Budgell, in his comment on November 21st, asks, Why do Canadian lawyers typically choose to advertise themselves as “solicitors and barristers”?

    In Britain, where all this originated, barristers are the lawyers who go to court. They wear the wigs and the robes so that the judge, in theory, will not know which barristers are successful and which are perhaps just starting out and are wearing a moth-eaten suit under the robe or who cannot afford to buy wigs to cover up the fact that, back then, people washed their hair about once a year whether they needed to or not. The idea of the wigs and robes was to level the argumentative playing field.

    Court rooms had, and still do have, a section for the judges, court staff and lawyers, and a section for the public. The two sections are separated by a barrier. If you are on the public side of the barrier, you cannot talk to the judge (lest there be a free-for-all). To be able to talk to the judge, you had, and have, to be called to the judge’s side of the barrier, the bar; hence, bar-rister. To be disbarred meant that you could no longer talk to the judge and your career was effectively over.

    Back in the day, barristers were not allowed to solicit clients as that was thought as stirring up trouble among people, and they were not even allowed to ask for payment as that was thought unseemly. Instead, at the end of the case, they turned their backs to the client, slung a pouch over their shoulders and the client would drop coins into the pouch for what he thought the advocacy had been worth. Today, there is an upside down Y-shaped piece of cloth sewn onto the back of the robe as the vestige of the pouch.

    Barristers did only litigation advocacy and were, and still are in most of the World, a profession onto themselves. To this day, many barristers think of themselves as the only true lawyers and everyone else doing legal work is just a glorified clerk. The fact that many of them would be reduced to stressed-out gibberers if they had to do this other work is lost on them (note that I love barristers, I really do, I am teasing them.). More seriously, I do say to those who denigrate the work of a small firm solicitor, come work for me for one month and you will change your perception.

    The non-advocate lawyers do all the other work and they were and are allowed to solicit clients; hence, solicitors. They would do all the business law, real estate, tax, mergers, acquisitions, contract drafting, will drafting, estate administration, marriage and separation agreements and on and on. They would build up a client base of thousands (or hundreds) of people. Every now and then, some of their clients would come to them with a problem. They were being sued. They needed to sue. They wanted a divorce. They wanted to fight the divorce. They were charged with a crime. The solicitor would prepare a summary of the facts and law, called a brief, and deliver both the brief and the client to a barrister of choice who would take over from there, prance around in court and get all the glory (more teasing).

    If you have seen A Fish Called Wanda, the solicitor is the balding lawyer who delivers Wanda to the John Cleese character, a barrister named Archie Leach (Cary Grant’s real name). If you have not seen it, it’s great. Even funnier the second time. Kevin Kline won the Oscar for Best Supporting Actor.

    As mentioned, in most of the World, barristers and solicitors are separate professions and if you are one, you cannot practice as the other. They require quite different personality traits. Barristers are quite competitive. They love the (often stupid) fighting. Tests in the US have shown that barristers, both male and female, have higher levels of testosterone than the general public (in the medical world, it’s the surgeons). Don’t worry. The levels are not such as to take away one iota from the femininity of female barristers (hello Marie). It just means they have a well-developed competitive streak (hello Marie again).

    Solicitors, on the hand, are gentle folk, serene, wise, very wise, pleasant, pleasing, insightful, accomplished, philosophical, broad-minded, well-read, really, really good-looking and, above all, humble to a fault. Funnily enough, solicitors think more like judges than barristers do. Solicitors spend a lot of their time solving puzzles – a very judicial function. The solicitor and judge are not interested in the adversarial aspects of the law; they both just want to hear and consider the factors (the evidence) however it reaches them, and make a decision.

    By the way, a lawyer is just someone with a law degree. To practice law, you must be called to the bar, and swear the Barrister’s Oath and the Solicitor’s Oath. Unless you do that, you cannot practice law (which is why I snort at letterhead where they call themselves lawyers and not barristers and solicitors, but that just brands me as a crotchety vocabulary geek/snob).

    When the British first came to North America, they brought their legal system to most of it. The population was not large enough to sustain enough lawyers to maintain the two professions, so they were fused. I am sure the thinking was that, once the population was large enough, the two would be separated, but, by then, the interests had vested. Thus, to this day, I am both a solicitor and a barrister, and could do a mortgage in the morning and defend a murderer in the afternoon, which is crazy. Actually, except in small towns, lawyers tend to opt for one side of the bar or the other. Rarely does a lawyer maintain both a thriving barrister practice and a thriving solicitor practice.

    Furthermore, we do have rules about not practising outside your area of competence (but how do you attain the competence? That’s where articling and mentoring come in. You spend years working for a senior lawyer, learning just how little you learned at law school, and being trained to a level of competence where the senior can feel secure enough to let you loose on the file without supervision. Kind of like letting your teenager drive the car without you for first time. Will he drive off the road? Will he run out of gas? Will he rear-end a police car? Will he parallel park himself into a pretzel? Can he even parallel park given the lousy education standards compared to my day? Will he MP3 or GPS himself into the river? Will he get his passenger pregnant?)

    Chris, I congratulate you on winning your case. It is not easy to do that on our own. One of the best examples of pulling it off was by Elizabeth Bethune Campbell. See Constance and Nancy Backhouse’s (and Bethune’s) excellent book, The Heiress and the Establishment.

    But, when you say that the unwillingness of lawyers to represent you had nothing to do with your ability to pay, that tells me that all of the lawyers you consulted had very little faith that you had a good case (or perhaps that “ability to pay” means on a contingency basis where, again, the chances of success were assessed as minimal).

    If you had the cash, all the lawyers thought you had little hope, and you won anyway, fantastic. The lawyers would not have refused to represent you because of whom you were suing or defending yourself against. There are all kinds of lawyers who take on tough challenges regardless of the opponent. Think Groia, Galati, Ruby and many, many, many, many others.

    You say that you knew that the law society would do nothing to assist you. There is practically nothing they could have done to assist you. That is not their role. The only thing they could have done is put you in touch with the Lawyer Referral Service.

    So, with respect, your contention that there is no justification for self-regulation is ill-founded and profoundly dangerous. Self-regulation of the legal profession is one of the cornerstones of democracy and, if we lose sight of that merely because we live in easy times and have forgotten how fragile it all is, then we do so at our long-term peril. As Churchill said, (a) the price of democracy is eternal vigilance, and (b) the real threats come not from without but from within. Governments, insatiable empire builders that they are, sometimes do take over the regulation of legal professions citing high principles but really wanting to exert their influence, either directly or by beholden proxy, into the one profession that does the most to keep them honest (journalism is second).


  18. Brad,

    I appreciate that you have some considerable knowledge to share with us.

    However, I have had a unique opportunity to thoroughly test the system, from the level of a private arbitration, through a statutory tribunal, two levels of the superior courts and finally the Canadian Judicial Council (which is still contending with me). I don’t expect I’ll be appearing before the SCC, but maybe I shouldn’t rule that out.

    I stand by my claim that there are cases – some highly meritorious – that no lawyer will touch. We can debate how to characterize why they won’t touch such cases. The simplest way to characterize it is fear. Of what exactly are they afraid? Well, that is a most interesting question. I have become increasingly inclined to view the profession as a cult. I have attended just one disciplinary hearing at the Law Society of BC’s offices. That was an eye-opener, but I’ve seen lots more evidence of fear. And I have documented an extraordinary litany of knee-jerk reactions to my determination to keep challenging the system. In my first appearance before the BC Court of Appeal (that overturned what I had won in the lower court) I was most certainly intimidated. Now I have no fear whatsoever.

    My sense as of today is that of the several initiatives I am still pursuing it is the one involving the CJC that is going to be the first to deliver a result no one will be able to ignore. The issue there of most consequence has to do with what was, up until this past July, section 2.2 of what the Council has been calling, since 2003, its “Complaints Procedures”. They’ve done some tweeking this year, but have not solved their problem. I would venture to guess that there isn’t currently a similar agency anywhere in the world that is in so much trouble.

  19. Chris, my only response is that almost all the lawyers I know personally or by reputation are anything but fearless.

  20. Chris, that came out wrong. I changed the phrasing without changing the noun. That’s what happens when you’re dashing off late for dinner. Now I will be really late. What I meant to say is that almost all the litigation lawyers I know personally or by reputation are, indeed, fearless. That does not mean that they do not feel nervous before a high-stakes court appearance. But nervousness (by which means they sharpen their minds) is not fear.

    They take on often very tough cases in often very trying circumstances. Litigation is one of the toughest jobs out there that does not involve physical risk (miners, police officers) or life and death decision making (medical personnel, military commanders). That is why some of them develop their own health problems from the stress. The fact that litigation files drag on so long is not only bad for the client’s pocketbook and health, it is also often bad for the lawyer’s health – long, long hours, skipped meals, unrestful holidays, and general stress.

    But it is not fear that they feel; what they feel is the intense desire to do the best job they can for their client because they care about the client’s situation (and, sure, their own reputation for excellence which leads to more work). They know the outcome is important to the client, sometimes critically important. They are conscientious and hard-working, and they have no guarantee that the judge will see it their way.

    The litigation lawyers I know personally do whatever they have to do to do that best job. They pull all-nighters when necessary. They eat, sleep, and dream about their cases. They wake up in the morning with the cases on their minds. My favourite barrister (one of the very best in Ontario in the judgment of his peers and clients) spends several hours every day he is on holiday buried in his laptop. The only surfing he does by the beach is into his files by secure remote access. I know because I have holidayed with him and his family many times.

    Consider this. Think about what it is like to put three years into a file, get to know your clients well on a personal level, believe deeply in the rightness of their case, fight as hard as you can for them, go into court, get hammered by the judge, and have to go back and tell your clients that, not only did they lose, they lost badly and have to pay, not only your fees and disbursements (most of which are paid to other people and entities), but also the fees and costs of the other side. Then help them when they break down in front of you at the terrible consequences of the loss. Then, after they leave, pick up the next file and deal with it with no loss of focus or enthusiasm because that next client deserves no less.

    Another of my favourite barristers counseled a boy who had been rendered a paraplegic not to take a settlement offer because the lawyer was confident that he could obtain a higher award in court. The boy agreed. Sadly, the court did not. That decision cost the boy over a million dollars that would have gone a long way to making his life better. It was a bitter blow to the boy, but also to the lawyer. To the very credit of the lawyer, he carried on with his next files to the benefit of his next clients. That lawyer is also one of the best in Ontario, but everyone makes decisions they regret. And it is not easy dealing with decisions that you regret because of the serious consequences on the person who accepted your decision or advice.

    As a result of your own experience, you say that you no longer have any fear of the process. It is puzzling that you would think that people who make their living in that process would somehow be fearful of it or any possible opponents in it. You did not find a lawyer because they were fearful; there had to have been another reason.

  21. Adjective. Sheesh.

  22. Earlier I wrote, “As far as I am concerned, the ABS Working Group output is calculated to worsen the delivery of legal services “. Understand that there is no nasty intent. It is not calculation in that sense. The members of the WG are sincere, thoughtful and well intentioned, even extremely so. While not all of the supporters of ABS support it for altruistic reasons, the members of the WG are motivated by the public interest, not self-interest. And they have shown considerable thoughtfulness, deliberation, intelligence and even courage in backing away from the single worst element – majority nonlawyer ownership. Malcolm Mercer started this blog by pointing out that their reports are the product of principle, not politics. He is completely correct on that. It’s just that the consequences of bringing ABS into Canada, if that turns out to be the WG’s ultimate recommendation (which is not a certainty), would be so deleterious that we would be certain to rue the day it was ever allowed here (but no longer be able to do much about it). With ABS, you cannot avoid, no matter how hard you try, both anti-competitive consolidations and loss of independence. That price would be far too high to justify the supposed benefits, especially when the price would be irreversible (and become increasingly costly to society as a whole) and the supposed benefits are attainable in far better ways.

    Lastly, nothing would make the opponents of ABS happier than to stop fighting it and to devote our time to the amelioration of the real problem.

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