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Transparency Can Be Tricky: Questions About Solving the Lawyer Quality Information Gap

In a recent Slaw blog, Malcolm Mercer thoughtfully explores how information asymmetry between legal service providers and consumers may impact access to justice. He suggests that creative solutions are necessary in order to provide the public with better information about the quality of lawyers and the legal services that they provide.

Mercer makes a good point: if the public feels that it can’t accurately assess the quality of legal services, there is a risk that people won’t retain lawyers or, at the very least, people may feel compelled to hire those practitioners who charge lower rates even if they provide inferior services.

Other convincing arguments can be made in favour of more transparency regarding lawyer quality. More competition and possibly lower prices may result if clients are better able to ascertain what value they are getting for their money. Informed choice can also be seen as a good in itself. In his book on legal services regulation, Noel Semple posits that choice is a “key interest” of clients and that “clients are better off if they can choose between service options at different price and quality points, assuming that all of them meet a basic quality threshold.”

There is clearly room for law societies to provide more information about lawyer quality. As Mercer and others have pointed out, current regulatory signifiers of quality are largely directed towards assuring the public that certain minimum standards are met. Basically, we know who has gone to law school and passed the exams necessary to be licensed to provide legal services and who has been subject to public disciplinary processes. These are important things to know but they are far from providing a complete picture of lawyer quality.

The emergence of private solutions to the lawyer quality information gap suggests that the public finds the regulatory status quo unsatisfying. In a recent article, Renee Newman Knake observes that private, for-profit lawyer ratings services in the United States “are growing in popularity and influence” and cites research conducted by the American Bar Association’s Working Group on Lawyer Ratings and Rankings noting the existence of “several hundred different lists, which purport to identify top lawyers or law firms in communities around the country.” Although the commercial products rating lawyers are far from new, Knake notes that technological advances have unleashed a new sort of beast: “Internet-based platforms for rating and reviewing individual attorneys along a wide-ranging and varied set of criteria.” One of the services that she mentions – LawyerRatingz – allows users to rate and review lawyers in both the United States and Canada.

As Knake, Semple, and others, like Nora Freeman Engstrom, have pointed out, user populated ratings services raise significant reliability concerns. LawyerRatingz itself cautions users, “[r]emember, we have no way of knowing who is doing the rating – customers, people in the industry, regular people, dogs, cats, etc.” Perhaps more fundamentally, if legal services are truly “credence goods” such that their quality is very difficult for consumers to ascertain, using subjective experiences as an indicia of quality would seem to be inherently flawed. Ratings might tell us with a significant degree of certainty whether former clients liked their lawyers, but be much more imperfect in revealing whether clients actually received good quality legal services.

In the face of this reality, a number of scholars—including Semple and Engstrom—suggest that regulators should require lawyers to disclose objective information about fees and certain case outcomes which could then, in turn, be made available to the public. For some consumers in respect of some legal services, this type of information may be useful. Information about fees, for example, would seem to be most useful in respect of the provision of certain discrete legal goods (like, for example, wills) or in respect of standardized fee arrangements (like, for example, contingency fees). Information about outcomes would seem to be most likely intelligible in litigation environments. Even in litigation environments, measurable outcomes like the amount of damages awarded by a court are driven by a complex array of factors, including, but not limited to, the talent of the lawyers involved.

Given these difficulties with measuring lawyer quality through subjective client perceptions or objective outcome data, it is worthwhile to consider increasing transparency through disclosure of objective input data. More specifically, why not communicate to the public the strength of the systems that lawyers have in place to ensure good quality service to clients? For example, does the lawyer manage client expectations by always using well-crafted, written retainer letters? Are regular updates given to clients? Does the lawyer have effective bring-forward systems to ensure that limitation periods or other filing deadlines are not missed? Any number of additional questions along these lines could be posed.

Recognition of the importance of these types of systems – sometimes called “ethical infrastructure” – is reflected in current Canadian law society explorations of new forms of entity regulation and proactive ways to help law firms deploy better management systems. On a smaller scale, the final report of the Law Society of Upper Canada’s Challenges Faced by Racialized Licensees Working Group includes a recommendation that the Law Society, every four years, develop and publish an inclusion index which would “include legal workplaces’ assessments of their diversity and inclusion-related achievements and that would allow legal workplaces to demonstrate their performance and progress.”

Voluntary accreditation also currently exists as a possibility. For example, a small number of Canadian law firms have chosen to become ISO 9001 certified to signal their commitment to having high quality management systems in place (see, for example, here and here). In England and Wales, the Law Society allows for firms to market themselves as Lexcel accredited upon being successfully assessed against certain stated requirements. Canadian law societies could explore the viability of providing similar voluntary accreditation processes to law firms here.

At the very least, law societies ought to engage in a broader study of all available regulatory options to provide the public with more meaningful information about lawyer quality. In October 2016, England’s Solicitors Regulation Authority published a discussion paper titled Regulatory data and consumer choice in legal services and is currently seeking public input on “what information it should publish, and how it would publish information, on the individuals and firms it regulates” in order “to help consumers make informed choices when purchasing legal services and drive competition.” A similar study would be useful in respect of the Canadian legal services market and would provide a solid foundation for moving forward on this important issue. Providing more information to clients about lawyer quality is necessary, but not all information is equally useful. Care should be taken in order to make informed choice in legal services an effective reality.

Comments

  1. Addison Cameron-Huff

    There are already many lawyers who disclose their fees for “certain discrete legal goods”. I run a site that has nearly 100 of them and there are far more lawyers out there who list the fees on their website. There are also a few law firms that operate storefronts with fixed prices, e.g. http://www.axesslaw.com/ and http://janeharveylawyers.com/.

    Although fixed fee pricing is great for customers and lawyers, it’s not applicable to all practice areas. Many legal problems can’t be reduced to a single price because there are too many moving pieces or neither the client nor the lawyer knows when the decision will be made to stop.

    Case outcomes are already theoretically available in Canada and are being used in the US by companies like https://lexmachina.com/ (LexisNexis). If we had open access to legal decisions (in a standardized format, with meta data) then there would be a dozen companies opening up tomorrow that provide this type of service for Canada.

    One barrier not discussed in this article is the lawyers themselves. Many lawyers are resistant to change and don’t want ratings, posted prices, certification, competition or any of the other useful suggestions in this article. Resistance to change is also the reason why legal technology in this area has been off to a slow start.

    Hopefully 2017 will bring more change.

  2. Should we be motivating lawyers to be more smart ?
    At least in adversarial setting, what if each party had to be represented
    by a lawyer of the others choosing ? The scales would be balanced, conflict would be
    impossible, and bad lawyers would become better from all the experience they would get,
    and fraud would disappear because the smarts ones capable of pulling it off would never get
    any work.
    And, it would obviate the need for the evaluation of (presently) essentially unmeasurable
    attributes because you then just want to make sure the other party is as badly represented
    as you. And the law would tend to become simpler, not more complex as it has a bad
    tendency to do now. Think of how much less stressful the work would be!

  3. What the creation of systems of oversight all too easily does is to take out of people’s hands tasks that it is better by far that they do themselves. Creative problem-solving is wrongly moved “up” to some sort of a superstructure. The task of the superstructure should be to ensure that the individuals concerned are free to do the creative problem-solving between them.

    Superstructures designed to lift problems from the operational level actually rob people of their freedom to be creative, and also strengthen the superstructure relative to little people. The idea that the superstructure should be creative is the misguided origin of the bureaucratic empire-building urge in systems. Bureaucracies invariably become authoritarian, if not totalitarian, and they very readily lose sight of their boundaries.

    The answer, then, is not for oversight agencies to poke more aggressively into lawyers’ affairs. It is to find out what elements in the present system PREVENT lawyers from connecting effectively with clients right now.

    I can tell you right now what at least two of them are: there are too many jobs for lawyers where they do not need to connect with prospective clients, and the tasks that lawyers have to do have become so ridiculously akin to hoop-jumping that most would be embarrassed to explain to clients just what it is that they do. Actually, I can tell you a third: the judiciary has become so abstract and so arbitrary that choosing an excellent lawyer doesn’t net a client a better chance at winning in court anyway.

    The fundamental message to all parts of the system is to fix what you have; stop thinking you have to build new stuff.

    And remember, everything needs light to get in, so don’t think you have to fix all the cracks.

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