What Should LSBC’s Futures Task Force and LSO’s Technology Task Force Do?
The Law Society of British Columbia’s E-Brief for January 2019 states that LSBC has established a Futures Task Force:
“… to look at the future of the legal profession and legal regulation in British Columbia. The task force is expected to identify anticipated changes that may improve or disrupt the future market for legal services, consider and evaluate the factors and forces driving those changes, as well as make recommendations to the Benchers regarding the implications and how the Law Society and the legal profession might respond to the anticipated changes. … Send your comments or questions to communications@lsbc.org.”
It should be a national task force, or a Federation of Law Societies of Canada’s task force, because the problems concerning the future of the legal profession are national, and are most effectively and cost-efficiently dealt with by national efforts and solutions.
And LSO (the Law Society of Ontario) has its Technology Task Force, which has to be close to the same thing in purpose and subject matter, and it also has an Access to Justice Committee, as does every law society (but what have they done about solving the A2J problem?). Access to Justice (A2J) should be all about the use of technology to solve the problem of unaffordable legal services. Instead, law societies treat that majority of the population that cannot afford legal services as though they were failures deserving nothing more than the charity that is the very simple legal services called “alternative legal services.”[1] Law societies’ practicing lawyer managers (their “benchers”), commendably provide their uncompensated time, but they do nothing to give that majority an affordable lawyer. That’s a breach of law society duties; e.g., Ontario’s Law Society Act s. 4.2. Or, do law societies want it to be the government’s duty, which best be done by replacing law societies with institutions of permanent management having the necessary expertise?
As a result of the A2J problem, the majority of law firms are short of clients. That has created a “legal services economic vacuum,” which the large commercial legal services providers such as LegalZoom and RocketLawyer, will fill, as they are very successfully doing in the U.S., and using sophisticated advertising to do it, which includes LegalZoom’s TV Commercials, which have attracted hundreds of thousands of customers. There, the general practitioner is well on the way to disappearing. In 2011 LegalZoom stated, “We have served approximately 2 million customers over the last 10 years.” And, “more than 20 percent of new California limited liability companies were formed using our online legal platform in 2011.”[2] California has a population slightly larger than that of Canada (about 40 million people). That same process has started here in Canada, see: LegalZoom.ca.
If the price of legal services were closer to that of these commercial producers of legal services, law societies could advertise the importance of the solicitor-client (attorney-client) relationship’s superiority over these commercial legal services producers’ mere buyer-seller relationship. But law societies can’t protect lawyers’ markets that way because the price gap is too large. There are no duties owed between buyer and seller except, put simply, to be honest, fair, and legal. But the solicitor-client relationship provides: (1) the fiduciary duty devoted to the client; (2) law society financial oversight and professional conduct discipline; (3) professional insurance; and, (4) CPD/CLE obligations to maintain competence. People want these protections provided by that professional status of a lawyer. But, except for very routine, simple legal services, lawyers are too expensive for the majority of society.
Equally threatening to lawyers’ markets, if not more so, are the great many small, retail legal services providers of programs for various applications and services, e.g., undefended divorces, immigration document preparation and guidance, due diligence work of various kinds, and patent searches with evaluation of novelty, etc.; see: (1) “Artificial Intelligence: Will it Help the Delivery of Legal Services but Hurt the Legal Profession”, (Slaw November 21, 2018), and, (2) Suzanne Bouclin, Jena McGill, and Amy Salyzyn, “Mobile and Web-Based Legal Apps: Opportunities, Risks and Information Gaps” (SSRN, June 16, 2017, pdf.).
Are they providing merely legal information, or are they into areas of legal advice, and therefore, “the unauthorized practice of law”?[3] The dividing line is much blurred by such technology. Law societies will have a difficult time investigating even a small number of them. The only way for law firms to compete is to be equally capable in their use of technology. That, plus the advantage of being able to provide the solicitor-client relationship would eliminate all such competition. Otherwise, most of the legal profession could become just another industry bypassed by technology.
Another example of such automated legal services is provided by Ryerson University’s LIZ (Legal Innovation Zone) in Toronto, which describes itself as, “a business incubator designed to build and support ideas that will change the status quo of Canada’s legal system.” Its Managing Director is Chris Bentley, who was an Ontario MPP for ten years, serving in five Cabinet posts including Attorney General for four years. LIZ’s email newsletter for February 13, 2019, contains this item:
On January 29th we welcomed Fahad Diwan from SmartBail to the LIZ. SmartBail is using machine learning technology to assess whether defendants released on bail will attend their court hearings or commit new criminal offences. Learn more about SmartBail here and on Twitter.
I haven’t examined SmartBail. But, arguing the probability of such missed court attendances and the commission of further offences while on bail, involves the application of principles of law concerning issues of fact and law, and therefore keeping-up with relevant case law, etc. Should SmartBail have to be licensed to practice law in Ontario? If it is only lawyers that will use SmartBail, OK, but most of these services are intended for the retail market directly, without involving lawyers.
In the above-cited Slaw article of November 21, 2018, I describe a competition at the LIZ that I attended on March 23, 2018. It was a competition among such automated legal services developers for Ontario Government funding (the young, enthusiastic, software-wise ‘presenters’ wore T-shirts as does Mark Zukerberg of Facebook, who is the wisest of ‘hands-on’ software innovators and entrepreneurs, and thereby the richest as well). Therefore, such “apps” (applications of electronic technology) now have government support as well as law society support—see LSO’s “TAG,” which is, The Action Group on Access to Justice. In particular, see TAG’s Episode 4: Digital Diversity. But clearly evident during that LIZ competition was the intention to serve the retail market directly.
The A2J problem has to be solved or the general practitioner and the small unspecialized law firm will disappear, and as a result, at least half of the membership of each law society with them. In Ontario, statistics show that the per capita number of lawyers in private practice is shrinking. That is confirmed by LSO’s (back then, LSUC’s) “Final Report of the Sole Practitioner and Small Firm Task Force,” pages 50-54 (paragraphs 117-130), of March 24, 2005; (reviewed in Convocation, April 28, 2005). As similarly confirmed by CanLII’s former President, Colin Lachance in, “Law’s Reverse Musical Chair Challenge” (Slaw, June 16, 2016). And years earlier, an LSO commissioned report by University of Toronto economist David Stager showed that the proportion of lawyers in private practice dropped from 88 percent in 1973 to 71 percent in 1982.[4] That shrinkage will be accelerated by the success of the commercial producers.
The solution requires two changes that law societies have failed to make and will refuse to make until they are made to fear such loss of markets and membership: (1) the management structure of law societies from its 19th century nature; and, (2) the way the work is done to produce legal services. The cause of the A2J problem is that there are no economies-of-scale in the practice of law, i.e., the method by which the work is done to produce legal services is very obsolete and therefore too expensive. If the method of doing the work is not changed from the present “cottage industry method” to a “support services method,” (as is used by the medical profession and the “parts industry” for making automobiles), the necessary economies-of-scale in the production of legal services cannot be achieved. The result will be that the price of legal services will never be made affordable to middle and lower income people as long as the present management structure of law societies prevails. Those lost clients are the majority of the population, who are the majority of taxpayers, and also the majority of voters. Such is the political vulnerability of law societies. As a result, law societies cannot compete with the commercial producers of legal services, making inevitable the shrinkage in law societies’ membership to less than half their present size.
That should be a major issue in LSO’s current bencher election campaign. Do the candidates ask and argue, “although doctors and lawyers started out working very similarly 200 years ago, why is it that now, no doctor’s office provides all treatments and all remedies for all patients, the way a lawyer’s office does for all clients?” The doctors’ medical services infrastructure produces the necessary economies-of-scale. The lawyers’ does not, because legal services don’t have the high political priority that medical services do. So, in regard to legal services, no government pressure means no innovation.
Organizations do not change until the fear of the consequences of not changing is greater than the fear of the consequences of changing. But law societies in Canada show no such fear of not changing. And so, like the financing of that LIZ competition, there are now strong indications that provincial governments are beginning to react to the A2J problem without law societies; see: Canada’s Law Societies Need A Civil Service” (SSRN, January 7, 2019, pdf.). A national civil service would enable law society benchers to act like Cabinet ministers without also trying to be a law society’s civil service as well as being good practicing lawyers. A government without a civil service cannot govern, and neither can law societies, as is shown by the misery being caused to the population and the great damage being caused to Canada’s justice system by the A2J problem. That is because law societies are the lynchpin of the justice system. When a jurisdiction’s law society fails, its justice system fails, i.e., all of its major institutions are made victims, which are: (1) the majority of the population, because middle and lower income people can afford only simple, routine legal services; (2) the court system, overwhelmed by self-represented litigants; (3) the legal profession itself, most of it being short of clients; and as a result, (4) improving Legal Aid funding is made politically very unwise while doing nothing to give the majority of taxpayers affordable lawyers.
Therefore, LSBC’s Futures Task Force and LSO’s Technology Task Force should start with strengthening the relationship between lawyers’ competence, and knowledge of technology. That involves these applications of technology in regard to law societies’ and lawyers’ “technology competence”:
- Using courts’ and tribunals’ own, technology facilities in legal proceedings, e.g., for presenting and displaying evidence, etc.
- Technology in the practice of law, including legal research. See for example, LSO’s Practice Management Guideline on Technology. The “Introduction” paragraph of the Guideline states:
The Technology Guideline outlines the circumstances in which the use of information technology is mandatory, as in the case of electronic registration. It also outlines the circumstances when information technologies are recommended. The Guideline invites the practitioner to consider the use of technologies to support client service expectations and practice management and reminds lawyers to address concerns respecting security, disaster management and technological obsolescence.
But see the cautionary theme as to the use of technology in this post by, James Côté, “What Is the Clear Path to Law Firm Success? It’s Not Obvious” (Slaw, February 19, 2019).
- Counsel being able to challenge the reliability of technical sources of commonly used evidence; e.g., (1) records are now the most frequently used kind of evidence, but lawyers don’t know how to challenge the reliability of the electronic records management systems (ERMSs) that produce and store them. Because there is almost no legal infrastructure controlling their management and operation, they have a high incidence of poor records management, and they operate on software that has high error rates.[5]
Other such types of technology-produced, frequently used evidence are: (2) mobile phone tracking evidence because we all carry mobile phones that continuously tell the electronic world where we are[6]; (3) TAR devices (technology assisted review devices) that are very frequently used in civil e-discovery proceedings to review (“read”) very large quantities of records for “relevance and privilege”[7]; and, (4) breathalyzer/intoxilyzer devices. Most of these systems and devices operate on tens of millions of lines of software source code, which the technical literature warns frequently contains errors, and therefore, we trust software-based technology far too much.[8] And so, software and ERMSs that are manufactured and maintained merely to a commercial standard, are producing critically important evidence that goes unchallenged to establish “proof beyond a reasonable doubt” and life imprisonment.[9]
Such knowledge of technology that produces the most frequently used kinds of evidence is a shared duty of law society and law school. The rules of procedure for conducting and using, voir dires, preliminary inquiries, presumptions and inferences, and disclosure practices and e-discovery proceedings, are inadequate because of the inadequacy of counsel’s arguments as to how such rules should be made to vary with the nature of the technology that produces the evidence.[10]
- Canada’s law societies’ ability to protect lawyers’ markets from commercial retail legal service providers of automated legal services.
- Law societies sponsoring the support services method of producing legal services that the affordability of legal services for middle and lower income people requires.
- Knowledge of IP: the federal government’s “Intellectual Property Strategy,” sponsored by the department entitled, Innovation, Science and Economic Development Canada. It states: “The Government of Canada is investing $85.3 million over five years to Canadian businesses, creators, and innovators. IP plays a critical role in exploiting the growth and innovation potential of businesses.” See also the federal government’s “Budget 2017” Fact Sheet, “Skills, Innovation and Middle Class Jobs.” So, how to advise clients as to recognizing, preserving, and monetizing IP, as the federal government intends? Slaw has archived a lot of IP articles.
What about those lawyers who struggle to serve middle and lower income people affordably? What “community mindedness” do the big law firms show in that regard? If they did, that would make very powerful advertising. The big, established producers of most things emphasize their services to the community and not just to the customer and client. For example, the big law firms could put in place for the general practitioner’s use, at cost, the necessary “support services” that the affordability of legal services for middle and lower income people requires.
So, in addition to the articles I’ve cited in the endnotes hereto, see the following technology and A2J articles (listed with their most recent revision dates) in which I show that: (1) “access to justice”; (2) the adequate use of, and challenging of technology; and, (3) the future of the legal professions, are parts of the same law society problem. Throughout this text, the articles cited without named authors are mine:
(1) “Law Society Accountability for the Access to Justice Problem” (SSRN, Nov. 27, 2018, pdf, 26 pages);
(2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, pdf., Nov. 7, 2018, 153 pages);
(3) “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN, September 30, 2018, pdf, 68 pages);
(4) “Canada’s Law Societies Need a Civil Service” (SSRN, Jan. 9, 2019, pdf, 41 pages);
(5) “Records Management Law—A Necessary Major Field of the Practice of Law,” (SSRN, January 27, 2016, pdf, 41 pages);
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[1] Alternative legal services (ALSs) are for example: clinics of various types, self-help webpages, phone-in services, paralegal and law student programs, family mediation services, social justice tribunals, arbitration and mediation for dispute resolution, public legal education information services, targeted (unbundled) limited retainer legal services (as distinguished from a full retainer to provide the whole legal service), pro bono (free) legal services for short and simple cases, and the National Self-Represented Litigants Project, the purpose of which is to help self-represented litigants to be better litigants without lawyers. They are simplistic, charity services, and do not provide a traditional solicitor-client relationship, involving a fiduciary duty (pro bono being a small exception).
[2] Benjamin H. Barton, Glass Half Full, The Decline and Rebirth of the Legal Profession (Oxford University Press, 2015) at p. 93. The author is a professor of law at the University of Tennessee College of Law.
[3] See this article, “Appeal judges rule on difference between ‘advice’ and ‘information’,” in the British publication, Litigationfutures, for February 6, 2019, which deals with the decision in, Manchester Building Society v Grant Thornton [2019] EWCA Civ 40 (January 30, 2019).
[4] See: Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997, pp. 307-308, (University of Toronto Press, 1997).
5 See: “Electronic Records as Evidence,” (SSRN, February 19, 2018, pdf, 43 pages).
6 See: “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (SSRN, October 13, 2016, pdf, 91 pages).
7 See: “Electronic Discovery’s ‘Records Review Stage’ Software Programs” (SSRN, October 1, 2018, pdf, 20 pages).
8 For a review of examples of complex technology that produces commonly used kinds of evidence, see:
(1) “Technology, Evidence, and Its Procedural Rules” (SSRN, October 1, 2018, pdf., 64 pages); (2) “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence” (forthcoming shortly on the SSRN); and, (3) Stephen Mason’s online book, Electronic Evidence 4th ed. (2017), which can be freely downloaded (pdf.) at:
9 See for example, R. v. Oland 2015 NBQB 245, followed by 2015 NBQB 244 (being two pre-murder jury trial voir dires concerning the admissibility of such mobile phone tracking evidence); and the reasons for sentence at, R. v. Oland 2016 NBQB 43. But, see the February 22, 2019, CTV news story about Oland’s re-trial.
10 See for example, “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (SSRN, October 13, 2016, pdf, 91 pages).
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