A Different Take on ABS – Proponents and Opponents Both Miss the Point

The Lawyers Weekly recently included an article by Cristin Schmitz entitled Study sounds note of caution in ABS debate. Ms. Schmitz discusses a thoughtful paper by Nick Robinson who is a research fellow with the Harvard Program on the Legal Profession.

In an interview with Ms. Schmitz, Mr. Robinson said:

“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. I am a bit cautious about non-lawyer ownership in the paper, but I can also see in certain situations how it could be beneficial.”

Dueling Arguments

The Robinson paper starts its discussion with what is described as the often “polarizing” claims made by ABS proponents and opponents. Proponents claim that non-lawyer ownership will increase access to legal services while opponents claim that it will undercut professionalism.

The arguments for the proponents are said to be that (i) access to outside capital permits economies of scale, infrastructure and specialization, (ii) non-lawyer ownership is an avenue not just to economic capital but also to “high-value employee with different skills sets”, (iii) outside investment allows consumers better information and quality of service by the development of brands which provide consumer information and an incentive to ensure quality and (iv) a business offering multiple types of services can provide services with greater convenience and efficiency.

The arguments for the opponents are said to be that (i) owners who are not themselves providing legal services are not personally invested in the labour of the enterprise and will accordingly be interested only in profits and not professional ideals and norms, (ii) non-lawyer ownership creates the potential for conflicts between the duties owed to investors and the duties owed to clients and the justice system, (iii) providing non-legal services together with legal services creates greater risk of misuse of confidential client information and unauthorized practice of law.

The paper suggests that, while these dueling perspectives both bring important insights, “the actual impact of non-lawyer ownership is likely to be quite different that either of these traditional accounts suggests” in material ways.

Country Studies

With a view to examining what actually has happened as opposed to the theoretical claims of proponents and opponents, the paper next considers the impact of ABS in Australia, England and the United States.


The paper examines two aspects of the English experience namely the effect of ABS on the personal injury and the insurance industry and the relatively limited impact of ABS on family law as opposed to the significant impact of cuts in legal aid.

As for personal injury, the paper notes ABS licensees are disproportionately concentrated in some sectors, particularly personal injury, where ABS firms account for one-third of the personal injury market share by last report. The paper suggests two reasons for this concentration. The first is recent unintended regulatory incentives which have encouraged claims management and insurance firms to invest in law firms. The second is that:

The personal injury market is both historically large and, at least in recent years, disproportionately profitable, making it a clear target for outside investors. Personal injury firms also require capital-intensive upfront costs, particularly in advertising and in creating an organizational infrastructure to screen and process claims.

The paper notes the risk for systemic conflict of interest between insurers and injured persons and the likelihood that economic efficiencies are not likely to much affect access where injured persons generally do not pay for legal services whether because of contingent fees, insurance or other arrangements.

As for family law, the paper notes that the Cooperative, an ABS with a social mission, has not been able to halt the massive increase in unrepresented litigants arising from the legal aid cuts of 2013 despite being one of the largest providers of family law services. The paper does not suggest that the adverse impact of these legal aid cuts has not been mitigated and will not be further mitigated but that the legal aid cuts had the more significant impact at least in the short term.


As for Australia, the focus of the paper is on the consolidation of the personal injury market with three firms now making up nearly one-half of the plaintiffs side of the market. The largest of the three has been publicly traded since 2007. The second largest is not an ABS. The third became a publicly traded ABS in 2013. The paper suggests that this consolidation is likely the result of regulatory factors such as prohibition of contingency fees and restrictions to the type of advertising allowed. The paper notes that the two firms that are now publicly traded were consolidating prior to their access to non-lawyer investment and that the other large firm does not have non-lawyer investment. Nevertheless, the paper suggests that publicly owned firms may have an advantage in acquiring other firms.

The paper draws limited conclusions from the Australian experience about non-lawyer ownership per se. The paper doubts that non-lawyer ownership is necessary for consolidation and closes with the observation that “Non-lawyer ownership may impact the cases these firms select and how they manage them, but, despite some aspersions otherwise, so far in Australia there is no clear evidence that it has led to significant new conflicts of interest”.

The United States

Despite non-lawyer ownership of legal practices being prohibited in the United States, the paper examines Legal Zoom and social security disability representation as close parallels.

The paper suggests that the effect of Legal Zoom is not well documented although access has likely been increased by pressure on prices. However, the paper notes that “a company like Legal Zoom is aimed primarily at small business and the upper middle class. In other words, people with the capacity to know that they have a legal problem and the resources and savviness to be able to seek out its answer and pay for it”. The paper also suggests that Legal Zoom has not increased access by “significantly decreasing the overall number of people without wills”[i].

The paper also considers the provision of social security representation which is permitted to be delivered by non-lawyers. The main point made by the paper seems to be that relationships between these firms and insurers and the social security agency has allowed for new potential conflicts to arise.


While the paper fairly describes this examination as being the “most extensive empirical investigation to date on the impact of non-lawyer ownership by focusing on its effects on civil legal needs for poor and moderate-income populations”, the actual empirical examination is nevertheless very limited. Recognizing the need of improved collection of data, the paper recommends that:

regulators should attempt to better track the cost of commonly used legal services, the demand for legal services, how these legal services are used, different pathways to resolving a legal issue, and how litigants use the courts. Sector specific studies should also periodically study the functioning of markets for specific legal services such as personal injury, immigration, probate, conveyancing, or family law.

Implications of the Empirical Review

The paper starts its consideration of its empirical review with the following observation:

Those who advocate for more integration by allowing non-lawyer ownership frequently argue this will lower prices and increase access and quality. Those who oppose greater integration worry it will undercut ethical and professional distinctiveness and create new conflicts. The country studies in this article show that while both sets of claims have some merit, they also miss critical components of nonlawyer ownership’s actual impact.

The paper suggests that the following contextual variables are important in the determination of “the actual scale and form that non-lawyer ownership will take”:

  • The nature of the capital and legal services market in the jurisdiction. A smaller market like Australia has seen less non-lawyer ownership than in England where the population is almost three times larger and there is a broader and deeper range of capital investors. The size of the U.S. legal and capital markets has allowed the rise of online legal services despite significant regulatory impediments.
  • The nature of legal services regulation in the jurisdiction. The recent referral fee ban in the UK has led to insurance companies[ii] investing in affiliated personal injury law firms. The Australian contingency fee ban appears to favour larger personal injury firms. The approach to ABS regulation may tend to encourage or discourage ABS formation.
  • The nature of the legal services. Non-lawyer investment appears to be more likely “in lucrative areas of the law that are amenable to economies of scale, where the work can be more easily standardized, and where other costs may be high (such as advertising, administration, or technology)”. Personal injury firms have seen disproportionate investment in Australia and England which may be because “personal injury has historically had large profits, high advertising costs, and a relatively routine and high volume workload of cases that are often handled by nonlawyers and mostly settle”.
  • The nature of the non-lawyer ownership. Ownership can be for-profit or not-for profit. Ownership may be by public listing, private outside investors, worker or consumer ownership, government owned or by a company that provides other goods or services. The nature of the ownership is likely to have an impact on the types of conflicts that develop the stability of the legal services market, professionalism and beneficial effects on access.

The paper observes that the empirical evidence does support the claim that “non-lawyer ownership can, in some circumstances, lead to new innovation in legal services, greater competition, larger economies of scale, and new compensation structures”. However, the paper also suggests that there are reasons to believe that non-lawyer ownership will not lead to significant access gains because (i) those in need of civil legal services often have few resources and, for them, legal aid is the answer, (ii) non-lawyer ownership is likely to be attracted to profitable sectors of the market, (iii) some legal services require the individualized attention of an experienced practitioner who charges high rates and the traditional worker owned partnership model may be the better approach in this context and (iv) there may be reasons other than price causing people not to address civil legal needs.

The paper also observes that, while the opponents of non-lawyer ownership often make claims that are too sweeping, there are genuine professionalism concerns raised by non-lawyer ownership such as (i) the potential for conflicting commercial interests such as insurers investing in personal injury firms, (ii) the potential for regulation to be by-passed such as the avoidance of the UK personal injury referral fee ban by insurer acquisition of legal practices, (iii) the potential for systematization of dubious practices, (iv) the potential for reputational concerns to limit the services provided to unpopular clients or riskier claims.

The paper observes with respect to professionalism challenges that:

… many of the most concerning new professionalism challenges identified in this article did not arise from non-lawyer ownership per se, but rather non-lawyer ownership that involves enterprises that also offer other services, and then only a sub-set of these enterprises. This suggests that jurisdictions adopting non-lawyer ownership should consider banning, or at least more heavily regulating, this type of ownership where the potential for conflict of interest is high, such as insurance companies owning personal injury law firms. When there is merely the potential for conflict or other professionalism concerns regulators should exercise their choice on when and how to intervene in the market. …

The paper notes that there are a number of regulatory policy choices to be made with respect to non-lawyer ownership. The paper encourages the development of more and better data to allow for more plausible claims to be made about the impact of non-lawyer ownership. Significantly, given the difficult judgment calls that are required, the paper calls for decisions to be made by regulators:

drawn from and drawing on a diverse set of opinions, including these two groups, but also consumer organizations, access advocates, other professional groups that deal directly with the public’s legal challenges (like doctors, educators, and accountants), and the academy.

Finally, the paper concludes that:

For policymakers the goal should not be deregulation for its own sake, but rather increasing access to legal services that the public can trust delivered by legal service providers who are part of a larger legal community that sees furthering the public good as a fundamental commitment. Carefully regulated non-lawyer ownership may be a part of achieving this larger goal, but only a part.

Some observations about the paper

In my view, this paper provides important insights for the ABS debate. As I have previously written, there is an unfortunate tendency to see ABS as utopian or dystopian while both the benefits and risks of ABS appear to be less than claimed by the duelists on both sides of the issue. The Robinson paper provides nuanced and thoughtful insight into non-lawyer ownership. It is right to conclude, as Mr, Robinson does, that ABS is no replacement for legal aid. Clearly, there are some legal services for which non-lawyer investment bears little advantage and there are consumers of legal services for whom market-based innovations will be of little import. As the ABS Working Group reported in February 2014, “it would be wrong to suggest that ABSs are a panacea”[iii]. But is wrong to dismiss any proposal on the basis that it is not a silver bullet.

I think that Mr. Robinson rightly observes that, at least at the outset, non-lawyer investment is most likely to focus on particular areas of practice particularly those which are lucrative and where capital can be put to use. Personal injury appears to be one such area. While it is likely right to be sceptical about efforts by existing practitioners to protect lucrative turf, it is also at least questionable whether it would be worth permitting ABS if the practical effect was primarily to partly consolidate the existing personal injury market rather to than expand the legal services that are provided in other areas. We should think hard about the likely impact of ABS in Canada taking into account Mr. Robinson’s insight that different geographic markets and different market sectors likely respond differently to non-lawyer investment.

Finally, Mr. Robinson’s focus on the interests of different investors is important. Mr. Robinson has written cogently about the professionalism concern that insurer-owned personal injury firms create systemic conflicts risks. The same concern can be raised about title insurer, mortgage lender or real estate brokerage ownership of real estate practices. While allowing access to economic and social capital is attractive, it is important to be careful about potentially conflicting interests of the capital providers.

As the title of this article is intended to convey, this “Harvard study” clearly advances this discussion. But it does not end it.


[i] John Suh, CEO of Legal Zoom, suggested otherwise on March 6, 2014 at the Harvard Program on the Legal Profession conference entitled Disruptive Innovation in the Market for Legal Services.

[ii] and claims management companies

[iii] Para. 119 of the February 2014 LSUC ABS Working Group Report


  1. Robinson’s study is indeed illuminating and deserves the attention that Malcolm’s post brings to it. One point on the contention that it is “wrong to dismiss [ABS] on the basis that it is not a silver bullet” for access to justice. Fair enough, but Robinson’s study raises the possibility that ABS may be little more than a damp squib so far as many very pressing access to justice problems are concerned. As Malcolm points out, Robinson thus rightly calls for a contextualized analysis of the prospects for improving access to justice via ABS. In my view, that contextualizing needs to go beyond examining the different regulatory risks that may arise in different legal areas. It should also explore whether there are ways to contextualize the design of ABS regulation so that a damp squib might at least be turned into a brass (bronze?) bullet for access to justice in specific legal areas. There is a lot that legal regulators in Canada could be doing, through regulatory reform, to improve access to justice. Reforms to allow ABS may be one possibility — but why not try to make as much access to justice out of it as possible? If ABS regulation must necessarily be contextualized, it is hard to see why it shouldn’t be contextualized not just to minimize regulatory risk but also to maximize access to justice.

  2. Lee Akazaki, C.S.

    I am still waiting for someone to explain to me how one can be owned by another and remain independent of that other. Until such time, in my view ABS is a professional superstructure under which is buried an inconvenient fallacy.

  3. First of all, I think we should separate two similar terms here, “ABS” and “liberalization of the legal market.” The former refers to a very specific mechanism introduced in England & Wales by the Legal Services Act 2007 and a very specific type of licence granted by various British regulators since 2012. While it’s easier to use “ABS” as a shorthand term in our discussions here in North America, I think we’d do better to talk about “liberalization” instead, a broader and more inclusive term that offers many possibilities, all revolving around one central theme: reducing restrictions on the people and business entities that may offer authorized legal service providers.

    The main reason why liberalization is seen as a potential step towards greater access to legal services is fairly simple: the current system restricts authorized legal service delivery to lawyers, and lawyers serve only a small, mostly wealthy portion of the population. Please note: I’m not talking about legal aid or other subsidized public-sector mechanisms that have been created to provide lawyers’ services to the least well-off; I’m talking only about the private Bar in its private-sector role, lawyers in law firms ranging from solo practice to global multinationals who take on paying clients at full freight. The private Bar serves approximately 15-20% of potential legal system users, leaving roughly 80-85% of other legal problems, issues and opportunities unserved or unrecognized.

    Now, if you believe the private Bar, left to its own devices, will grow that percentage to a meaningful extent over the next several years, such that we can reach even the modest goal of 50% of all legal issues addressed by 2020, by private-Bar lawyers ALONE, I and others would be delighted to hear your reasoning.

    Given, however, the world we live in, and given the absence to this point of a compelling reason to believe private-practice lawyers can or will shortly serve a much greater population than they currently do, it stands to reason that loosening restrictions on who may deliver legal services is a justifiable experiment in increasing the size and nature of supply to meet the burgeoning demand. That’s all the Legal Services Act ever was, really: a reasonable, justifiable, and necessary experiment in refocusing the legal services market from sellers to purchasers, from supply to demand, from the lawyer to the consumer.

    And this is the final, and I think most important point that needs to be made. If lawyers are adamantly opposed to liberalizing the legal services market, then we are obliged to present a powerful case that lawyers alone can meet, in very short order, the majority of legal services needs currently going unmet or unidentified. This is where many lawyers seem to miss the point: the onus is not upon proponents of liberalization to prove it will fix the access problem, or even that it will roll out flawlessly. The onus is on lawyers to prove that *we alone* can fix the access problem, and that we can do it now.

    Liberalization is not the one answering questions and defending itself here; restrictionism is. So my question is: What is restrictionism’s answer to the access crisis?

  4. Lee – At the core of corporate law is the concept that shareholders are passive investors. They do not take part in management decisions. In return, their liability for things done by the corporation is limited to the amount they invested. Should they take part in management and control, they run the risk of losing that limited liability.

    Further, your suggestion that shareholders control lawyers who work for corporations runs counter to the experience of thousands of in-house counsel in Canada.

    Our Canadian in-house colleagues, as well as lawyers in ABSs in Australia and the UK would be most insulted to hear that Ontario lawyers believe that they are automatons who mindlessly do the bidding of their shareholder masters despite their ethic obligations.

  5. Lee Akazaki, C.S.

    Opening up the market for legal services to people and business entities other than lawyers could achieve some social good, in the liberal economic sense, if we did not value the independence of those offering legal services. At the core of the independence is the ability to provide representation and advice in a privileged setting. Labeling those who value and defend bar independence as restrictive may permit some to gloss over the consequences of lawyers offering services to the public while controlled, not by client instructions, but rather by the interests of silent business partners, be they shareholders, private investors, or holding companies with other business units.

    The bar is independent because it is not controlled by shareholders or the strategic plans of affiliates or sister companies. One can imagine, for example:

    – An integrated and rationalized estates law conglomerate whose stock is controlled by a funeral parlour chain, thus giving new meaning to the phrase, “one-stop shopping.”

    – Turning that organizational chart on its end, a physio-rehab division of a personal injury law firm whose stock is, in turn, owned by one of Canada’s handful of insurance conglomerates.

    – A handful of “competing” business litigation firms operated by holding companies that, in turn, own competing forensic accounting firms for whom business is slumping. (Sound familiar?) A spike in lawyers advising clients to take cases to trial instead of settling out of court would create a bubble in litigation service and for the forensic support business, as well as end-of-year bonuses all involved. The clients, however, might question the social benefit in this market convergence.

  6. Lee Akazaki, C.S.

    In answer to Mitch:

    Shareholders usually are interested in the bottom line, and on a short-term basis according to market fluctuation or dividends. So where law firm productivity runs counter to ethical duty, which would prevail?

    Yes, our profession allows in-house lawyers in the corporate and institutional context, and there are some rules governing the ethical conduct of in-house lawyers, including the requirement to resign after escalation of an ethical dilemma. The crucial element of conflict between lawyer duty and employer interest does not typically arise from the client-protection perspective because the lawyer is acting for the employer qua client, in the in-house setting. The issue of a competing loyalty does not arise except in some instances where outside counsel is usually retained to handle a trial or appeal. This is different to the situation of a lawyer employed by an entity that is controlled by others. There should be no duty of loyalty to an outside interest, that competes with the duties to the client and to the administration of justice.

  7. of course some of these conflicts already exist and are permitted and are dealt with. What about the position of defence counsel who owes a duty to an insured and to an insurer paying the bills or how about contingent fees which interestingly I believe are not permitted in jurisdictions such as Australia that allow outside ownership. These issues can be dealt with. The profession suffers from a horrible lack of innovation. In the absence of real outside input and investment there is no evidence that this will change. If it doesn’t I fear the consequences for the future generations of lawyers. I have over the last couple of years met with many young lawyers with ideas. They cannot finance them and maintain a practice. No one is addressing this. Having a tech partner or an engineering partner to create something special to serve clients is why liberalization, to use Jordan’s better terminology, is critical.

  8. Lee’s initial assertion seemed rather overbroad but his more nuanced subsequent statement that “There should be no duty of loyalty to an outside interest, that competes with the duties to the client and to the administration of justice” is easy to accept.

    I presume that Lee would accept the “substantial risk of material impairment” standard that governs fiduciary relationships generally and not contend for some special rule that, intended or not, had the effect of protecting lawyers.

    It is probably also worth observing that independence is of little concern to those who do not now use lawyers. There is a need to both improve access to legal services and to protect the value of existing legal service provision. Looking at any of this from just one perspective doesn’t work very well which is part of the point made by Nick Robinson.

  9. Lee Akazaki, C.S.

    In answer to Gary’s reference to the tripartite insurance defence, the managed conflict is that of the defence counsel hired by one client to defend another, but remaining independent of both. It is simply a permutation of the joint retainer scenario. For the most part, potential conflicts between joint clients are managed by independent lawyers; although not always well. That, however, is different from being an employee, whose duty of loyalty in law is exclusively to the employer.

    The example of the tech partner or engineering partner is a multidisciplinary firm – another topic altogether. We already have a manageable version of that in associations with patent and trade mark agents. The law firm, at least as a juridical unit, remains an independent entity. That is different from an engineering firm owning the controlling interest in a law firm, with the lawyers as employees and the engineer-appointed officers and directors calling the shots and being able to tell lawyers what to do when representing particular clients.

    In answer to Malcolm’s point, I agree that A2J suffers from the ethical standards of lawyers as independent operators, because the free market favours diffuse integration of competitive advantages. The reason why I am maintaining such a conservative position (“restrictionist” according to Jordan – which a fan of Finnegan’s Wake would readily decode as “reactionary”) is that we have to be honest and admit that the the innovation comes at an ethical price. Those who do not value the independence of lawyers are indeed those who do not now use lawyers. Once they are able to use lawyers, they will definitely want their lawyer to be independent of any interest outside client loyalty and loyalty to justice. The inconvenient fallacy rears its head once again.

  10. Lee says “Those who do not value the independence of lawyers are indeed those who do not now use lawyers”.

    I presume that Lee has in mind the 70% who don’t use lawyers in family law disputes, the 70% without powers of attorney, the 60% without wills, the 40% who dont seek legal advice when injured, the 1/3 who know that they have legal problems yet don’t seek legal assistance and the 85% who don’t seek legal assistance for justiciable problems.

    I’m now confused as to the standard that Lee seeks for independence. Lee seems to suggest that being an employee inevitably means loss of professional independence. It comes as a surprise to me that the professional obligations of employed engineers, architects, psychologists, pharmacists, social workers, physicians, nurses, teachers, crowns etc etc are materially compromised where their employer is not entirely owned by the professionals providing services. Perhaps lawyers are just more vulnerable? To be clear, I’m not suggesting that the nature and interests of the employer are never of concern as clearly they are.

    The highly inconvenient fallacies are that people who don’t use lawyers are merely making foolish choices and isolating lawyers is the only way to protect clients from conflicted assistance.

    To paraphrase Lee, we have to be honest and admit that failure to innovate also comes at an ethical price. All ethical and other prices need to be taken into account in thinking about alternatives unless one concludes that all is now just ducky. To repeat, Looking at any of this from just one perspective doesn’t work very well which is part of the point made by Nick Robinson.

  11. Perhaps lawyers looking to improve “access to justice” should look at their own hourly rates as a starting point.

  12. I am a member of the OBA’s ABS Working Group, and we are in the process of soliciting input from OBA members on a number of questions relating to ABS/liberalization. I’d like to pose one of those questions to the readers and commenters on this post – the question is this:

    What, if anything, in Ontario’s current regulatory framework for lawyers is preventing you from practicing law the way you want to, or from addressing unmet legal needs?

    In particular, I would love to hear *specific* examples of initiatives/innovations which lawyers would like to undertake but are constrained from doing due to a lack of access to funds.

  13. Lee, I am not in the least certain that a lawyer being paid by one client and owing duties to another is so different. Further the contingent fee arrangement arguably has an even more difficult conflict than the employer/employee one you bemoan. Finally multidisciplinary is very much the point. Fee sharing is at the very essence of successfully pursuing such businesses.

    Bob, as to a specific example, I would love to develop a system with sophisticated metrics for evaluating and monitoring the litigation we do. It is implausible financially to hire someone to do that. It would make sense to incentivize an IT person to do that with a partnership interest. I would also like to partner with someone to develop a sophisticated alternative dispute resolution algorithm for particular types of disputes like wrongful dismissals.

  14. Mitch says:

    “At the core of corporate law is the concept that shareholders are passive investors. They do not take part in management decisions. In return, their liability for things done by the corporation is limited to the amount they invested. Should they take part in management and control, they run the risk of losing that limited liability.”

    This statement is flatly wrong; shareholders can take part in management, can be management, without losing their limited liability; they do not have to be “passive investors”, they can be as active as they like. Limited partners may lose their protection if they take part in management but we are not talking about that form of business organization.

  15. Lee Akazaki, C.S.

    The examples of professionals listed by Malcolm (engineers, psychologists etc.) are of a paradigm where conflicts of interest are more manageable. So I would concede that the innovation might be accomplished without the ethical compromise if we were to differentiate between representative and non-representative roles.

    Angela’s comment is correct: the essence of share capital is control, so why would such investors give up the only means they have to ensure their investment is safe? Even in their passive role, shareholders impact management decisions in ways that are not always consonant with the ethical duties of a lawyer. Control by others may be less important in some legal services, but it is difficult to square with most traditional barrister roles. So we can foresee where this is heading: the fragmentation of the dual barrister-solicitor degree which dates back to early Canada.

  16. Further to Lee’s suggestion, the extent to which control might lead to conflict varies by legal services provided. I would also suggest that public notice of ownership/potential conflicts would go along way to reducing potential issues

    To completely prohibit potential new means of providing legal services on the grounds of that self ownership is the way we’ve always done it and it sounds scary to allow third parties, and the third parties might result in new services that are less than perfect in some cases… seems to be a bit of a disservice to those with legal needs not currently being met by the legal market.

  17. So I think we have several different strands of concerns and arguments swirling around, and it might do us good to separate them out and clarify the issues. We can group these strands into two general categories of legal service affordability and lawyer ethics.

    Let’s start with affordability, and make a few key points.

    1. Lawyers can offer their services to whomever they want, at whatever price they wish. There is no obligation on an individual lawyer to offer services in such a fashion as to be affordable to all potential buyers. Pro bono allows lawyers the opportunity to serve the demands of conscience and professionalism by providing some services at no cost “for the public good.” Beyond that, lawyers are free to act in the marketplace in any way that suits them.

    2. There is strong evidence, both quantitative and qualitative, that lawyers do not serve the entire potential market for legal services — in fact, it would appear that we serve only a small percentage of potential legal system users. Among the many reasons for this, the strongest seems to be that lawyers perceive that the cost of running a law practice precludes us from accepting all but the most well-paid retainers in order to maintain profitability. Again, this is perfectly fine: it’s a choice we make as businesspeople about how we interact with the market.

    3. The difficulty, as we all know, is that lawyers (at least in North America) have the exclusive right to offer legal services (except in Ontario, where independent paralegals are licensed by the law society, and Washington State, where Limited License Legal Technicians have recently been legalized). So for the most part, the sole authorized provider of services in this market serves only a small portion of it.

    4. Malcolm has previously summed up the choice presented by this situation: either lawyers will have to find ways to serve the great majority of potential legal system users, or we will have to begin (or continue, in Ontario’s and Washington’s case) to extend to other entities the authorization to try serving more of this market themselves. I don’t see any way around this choice, unless we’re content as a profession to preside over a legal system that in most cases is accessible only by the few and the wealthy. Perhaps we are. But I would like to see members of the legal profession make clear their positions on this question.

    Next, let’s address the issues of lawyer ethics, professionalism and independence, which are more complex.

    1. Lawyers have been granted the privilege (not the right) of self-regulation. Using the powers assigned to us through self-regulation, we have designed and strictly enforce on ourselves several behavioural codes that we generally refer to as “ethics.” (For clarity, “ethics” here refers to explicit normative standards of conduct, rather than the more colloquial sense of “moral behaviour.”)

    2. Among the behavioural standards we enforce through ethical codes are (a) service above all to the courts and the rule of law, (b) complete confidentiality of client information, (c) loyalty to client interests as expressed through conflicts rules, and (d) independence of our counsel from outside influence. These rules are meant to guarantee to clients and to society generally that we serve the greater good and advance the interests of our client without partiality. Nobody contends that these standards and goals are obsolete or unnecessary. (Indeed, in the multi-player market that’s coming our way, our ethical standards will nicely double as a competitive advantage.)

    3. Lawyers tend to raise two ethical objections to the changes in legal regulation posited by the CBA’s Futures Report. The first is that “non-lawyers” are not bound by lawyers’ ethical standards, thereby creating too great a risk that their clients’ interests will not be protected and may even be abused. The second is that allowing “non-lawyers” to own equity in a law firm fatally compromises our duty of loyalty to (a) the courts and (b) our clients, because the lawyer will be bound and corrupted by an additional, higher duty to advance the interests of these “non-lawyer” shareholders.

    4. First objection first. There is a legitimate argument that “non-lawyers” are fully capable of conducting themselves with the integrity and impartiality we enforce on lawyers, not least because exploiting or abusing one’s customers is a terrible way to run a business and a good way to wind up in jail. But let’s concede for argument’s sake that “non-lawyers” pose a genuine risk to their clients’ and customers’ interests.

    5. It’s not entirely clear to me why this is anything that should concern the legal profession. Those who hire “non-lawyers” are not our clients and we owe them no professional duties. Nor are we their parents or guardians. They made a choice to hire someone who isn’t a lawyer, and they can reap both the rewards and consequences of that choice. Fundamentally, it’s none of our business. We were granted the privilege of regulating ourselves; nobody (aside from the Ontario government and independent paralegals) ever granted us the privilege or assigned us the duty to regulate anyone else. Law societies, to my knowledge, were not created to “protect the public.” They were created to “govern the legal profession in the public interest.” Those are two different mandates. If someone wants to hire a “non-lawyer,”and the “non-lawyer” accepts the engagement, it seems to me that that’s their business, not ours.

    6. Second objection second. It is a completely reasonable concern that the presence of “non-lawyers” in the ownership structure of law firms could pose a threat to our duties to clients and our independence from outside interests. Even a small risk in this area should be taken very seriously, because of the enormous importance of lawyer independence to our professional existence and to the rule of law. But the real and legitimate nature of the risk does not mean that simply raising it is enough to end the discussion. If it’s a risk, let’s look at whether and how it can be managed.

    7. We should isolate, for this discussion, the operation of in-house or public-sector law departments, which very clearly are owned and operated by “non-lawyers.” We’re concerned here with the private bar, providing services to lay clients for whom we assume (though not always correctly) a low level of sophistication. The principles at play in these workplaces are not fully applicable here — although it is at least helpful to note that the mere presence of “non-lawyers” in the ownership and financial structure of their “clients” has not been fatal to the independence of these lawyers. “Non-lawyer” status is not an airborne disease.

    8. We do have an example of a large, multi-national law firm with outside “non-lawyer” shareholders, and that is Slater & Gordon. If you review the firm’s initial public offering prospectus, you’ll find that among the “risks” disclosed to potential share-buyers was their tertiary position in the firm’s loyalties: the courts first, clients second, shareholders third. Those who bought stock in Slater & Gordon acknowledged and accepted that, unlike other businesses where “shareholder value” is (perversely, in my opinion) the only objective, investing in a law firm means accepting a much-reduced level of influence and importance. I’m not aware of any ethical difficulties Slater & Gordon has experienced, or any accusations that have been made by clients or judges, that public ownership of the firm has corrupted its lawyers’ professional duties or harmed their clients’ interests. The presence of such problems or accusations would indeed pose a serious challenge to advocates of “non-lawyer” ownership. But equally, the absence of such problems or accusations over a period of several years in two countries ought to be factor in the discussion as well.

    9. It seems to me that whether a law firm is owned by lawyers, by “non-lawyers,” or by Martians, the lawyers in the firm still operate under the auspices of law society regulation. (Assuming that “firm-based” regulation comes to Canada, as it has in Australia and the UK and appears close to coming to Nova Scotia, the firm itself will be bound as well, but that’s a separate point for the moment.) If a lawyer regulated by a law society breaks a professional standard, for whatever reason, he or she will be investigated and punished. Whether my cheques are signed by the managing partner lawyer or by a corporate payroll employee, I’m still on the hook for what I do and don’t do to advance my clients’ interests and serve the rule of law. There will be no exception granted to a law firm owned in whole or in part by “non-lawyers”; indeed, I expect that ethical scrutiny of such a firm would be several degrees more intense than for lawyer-owned firms.

    10. It might be objected that the influence of a “non-lawyer” equity owner would be more subtle and pervasive than that. The “non-lawyer” would not directly order a lawyer to drop a case or reveal a client confidence on the record; instead, he or she would influence, by their very presence and through various innocuous but well-timed remarks, that perhaps the firm should pursue a different course or be more open about a client’s position.

    11. To this objection, I would have two responses. First, if we are now guarding against invisible, inaudible, and theoretical risks to lawyer independence — “this might happen and there’d be no way to prove it didn’t” — then I think it could be conceded that the clear and present danger of this risk is not readily apparent. We are moving out of the zone of probability, which is a fair and legitimate battleground, to one of possibility, which is unanswerable: no one can ever prove that something undetectable will never happen. And secondly, there is an assumption at the heart of this objection that “non-lawyers” are less trustworthy, less honourable, and more mercenary than lawyers are — and conversely, that lawyers have more integrity, character, and selflessness than “non-lawyers” do. I won’t rehash my lengthy comments on that point — you can find them at — but suffice to say I don’t find this line of reasoning especially sound or especially attractive.

    I’m not suggesting that this foregoing novella of mine answers every question or removes all risk surrounding this area. I think the concerns that Lee and others have raised are legitimate, both on their own merits and given the gravity of the values at stake. This post and comment thread have constituted one of the best public discussions of these issues that I’ve yet seen in the Canadian legal community, and I would welcome continued debate around them. But we should not suppose that the case for either side of the debate is so slam-dunk obvious that further discussion is unnecessary. Let’s engage on the issues. But let’s engage on probabilities, not possibilities; evidence, not worries; what we know and can reasonably, sensibly anticipate rather than on what we fear.

    But above all, no matter what the right answer is, let’s find it.

  18. “Those who hire “non-lawyers” are not our clients and we owe them no professional duties. Nor are we their parents or guardians. They made a choice to hire someone who isn’t a lawyer, and they can reap both the rewards and consequences of that choice. ” For some people this may not be a choice but out of necessity due to their financial circumstances. I’ve seen no evidence that the option of paralegal use has reduced legal costs or reduced the level of those having to opt for self-representation, in those scenarios where a paralegal is not qualified to act.

    Second, what effect has the presence of such firms as Slater & Gordon, as you’ve noted, had on access to justice and legal costs?

  19. Verna, I completely agree that there’s very little choice in this matter at the present time. Firstly, outside of Ontario, the only authorized alternative to hiring a lawyer is to try navigating your way through the legal system yourself — regulations in other provinces and territories rule out any other option. Secondly, and this is your point, if you can’t afford to hire a lawyer, then you don’t really have much “choice” at all — you go with whatever assistance you can find. One of my arguments is that the possibility of expanding the range and quality of authorized options available to people who either don’t want to or (more likely) can’t afford to hire a lawyer is precisely why we should be considering liberalization, because more legitimate choice would be a very good thing.

    Your question about paralegals and Slater & Gordon and whether they’ve improved access is therefore very much on point. Regarding Ontario paralegals, I’ve seen no studies or reports on the size of their market, how much money they’re making and what kinds of services they’re providing. That sort of data would be extremely illuminating in this debate, and it would be good if the LSUC or the Paralegal Society of Ontario could provide it. It would also answer the question of whether paralegals have helped ease the access problem in Ontario, because every dollar spent on a paralegal is a data point that says, emphatically, “Yes, they have.”

    I would be surprised if paralegal use has driven down lawyers’ fees very much, for a couple of reasons. First of all, lawyers still far outnumber paralegals in Ontario, and we would need to be closer to an equilibrium state before paralegals would be able to affect lawyers. More importantly, though, paralegals seem unlikely to affect lawyer fees because most paralegals are not taking business away from lawyers. They’re doing what many of us hoped they would do — serving people who can’t afford lawyers. My guess is that the lawyer market and the paralegal market overlap very little. Lawyer fees are likely to affect paralegal fees, because paralegals need to make sure they’re less expensive than lawyers. But I’m hard pressed to see any reason why paralegal fees would affect lawyer fees, because for the most part, they’re not competing for the same customers.

    I also don’t know whether the presence of paralegals has reduced self-representation in the litigation system in Ontario — again, some official data on this would be helpful. We can probably assume that any impact that has occurred has been quite small. One reasonable explanation for this is that paralegals aren’t actually allowed to do very much in Ontario courts — their mandate and jurisdiction in that arena have been closely circumscribed by the law society. So again, if there aren’t nearly as many paralegals as lawyers and they’re not allowed to do nearly as much in the court system as lawyers can, should we be surprised that paralegals’ appearance on the scene has not caused self-representation to fall dramatically?

    Regarding Slater & Gordon, I don’t know whether and to what extent it has affected A2J and lawyer costs, although if you asked the chair of the firm, I’m sure he’d be able to provide some good data. Considering that S&G is a personal injury firm, and that the existence of contingency fees has for some time helped alleviate A2J problems in personal injury law, I’d be surprised if access has improved.

    But I would not be surprised at all to learn that lawyer fees have gone down a little, because S&G is very interested in growing its business rapidly through merger and acquisition, and virtually the whole purpose of that strategy in business is to achieve economies of scale that reduce operating costs and therefore, among other things, be able to offer a more attractive price point to customers. Again, I have no idea if any of this is actually happening with S&G. But keep in mind that Slater & Gordon is not being offered up as a data point to support A2J, at least not by me. I offered it up as an example of a firm that seems to be managing its ethical and professional obligations even with the presence of “non-lawyer” ownership.

    My bottom line on liberalization and access is that allowing the former will not suddenly and magically transform the latter. Expanding the range of licensed legal service providers is not the final step to fixing the access to justice problem; rather, it’s the first step in that direction. We need much better levels of public legal education and awareness for Canadians, starting with mandatory law courses in high school. We need to engage in all kinds of social engineering — require applicants for a marriage license to also have a last will and testament, for example. We need to license multiple competing systems of private dispute resolution that are overseen and regulated by courts, which would lend their enforcement powers to decisions issued by fully accredited private tribunals. And so on. Liberalization, on its own, is no silver bullet; it’s one of several, and we need to use as many of them as we can.