Some Ground Rules for a Constructive ABS Discussion

As is apparent from the OTLA, and the many comments on my previous post, the upcoming Bencher elections in Ontario finally have an issue that has grabbed the attention of lawyers across the province: Alternative Business Structures.

While this issue may drive better voter participation in the April election, it has also greatly divided the profession in this province.

One can already see the huge generational rift among lawyers; those at the twilight of their careers fighting to retain a 19th Century business model, while younger lawyers want to move the profession into the 21st Century so as to better serve their clients and provide a better work environment for themselves.

In deciding this issue we must remember that we’re lawyers; trained to deal with matters with emotional detachment, as well as with honesty, logic and evidence. Indeed, principles of good governance require decisions to be made in such a way.

LSUC needs to create some ground rules for the ABS discussion once it hits Convocation, in order to keep the discussion constructive and, at the very least, to keep the profession from looking like pompous, self-aggrandizing protectionists.

I suggest the following:

  1. A bench-mark or metrics for making a decision must be set in advance. OTLA and others have determined that there is “no compelling argument for ABS” – but they do not set out how “compelling” is defined. Simply making a statement that there is “no compelling reason” for ABS without citing the metrics by which “compelling” can be objectively measured is not logical or reasonable, nor is it in the best traditions of the legal profession. Perhaps a suitable, reasonable and logical, metric or benchmark is similar to that used for new drugs in Canada; does the potential value of ABS outweigh the risks associated with ABS?
  1. Evidence for the metrics should be drawn from the two jurisdictions (Australia and the UK) who have a combined 18-years of experience with unlimited, non-lawyer investment in law firms. In effect, these jurisdictions are “the clinical trials of ABS,” and these jurisdictions provide ample evidence of real, versus imagined, risks;
  1. Arguments that raise risks (such as market consolidation) that are permitted to happen under the current model should be discarded;
  1. Arguments that ridicule, insult, demean or abuse those in the clinic trial jurisdictions are to be discarded;
  1. The profession needs to look at itself in the mirror and acknowledge that given the problems with lawyer discipline in this province, the current model is a risk to the public. The risks created by the current model need to be measured against the risks actually found in ABS clinical trials;
  1. “What if” arguments are to be discarded if they are devoid of evidence. This is not a law school exam where students get part-marks for issue-spotting;
  1. Arguments that suggest potential benefits from ABS can also be found in the current model, should be discarded. There are many cold medicines in this country that have the same benefits, but that does not prevent new cold medicines from entering Canada.

It is only if such ground rules are put in place, and followed, that a constructive, evidence-based discussion about ABS can take place. Otherwise it will quickly devolve into an emotional maelstrom – the people of Ontario deserve better than that.


  1. “Arguments that ridicule, insult, demean or abuse…are to be discarded;” and arguments should be based on fact, not emotion?

    I guess that means that insults and ridicule of those with whom one disagrees should be avoided, and statements like “those at the twilight of their careers fighting to retain a 19th Century business model…” and “keep the profession from looking like pompous, self-aggrandizing protectionists” should be avoided?

  2. David,

    Nice response, but you missed the point rather badly.

  3. David’s comment is on point. It is clear that the columnist thinks the commentary following his last post was not “constructive”, but it seems he believes this was entirely the fault of others. Using a selective definition of “evidence” to dismiss opposing points of view is not constructive; it is casuistry. We will see if a more constructive conversation occurs here, now that we have been blessed with these objective rules.

    On an unrelated note, I would like to know the evidence for the claim that young lawyers are “huge[ly]” more pro-ABS, if it is available.

  4. My point was, practice what you preach, avoid ad hominem, and don’t make ageist statements (whether about “young” or “old”). Even if you meant to refer to time spent in the profession rather than physiological age, you were ignoring the existence of older reformers and younger reactionaries.

    My leaning is in favour of ABS; I am “protectionist” only in the sense of wanting to protect the public (and employees of law firms when the firms change structure or go defunct), not lawyers from competition or new models. My biggest concern with ABS is the sort of diffusion of responsibility that has occurred in a number of corporate structures (e.g. if an ABS does an ethical wrong, but magically no lawyer there is actually responsible…) and/or undue pressure from investors, just as some firms have faced undue pressure from whale clients.

    In addition to law firms and ABS structures elsewhere, studying non-lawyer business organizations (e.g. engineers can have non-engineer ownership but an engineer has to take responsibility under the certificate of authorization, and even looking at how MDPs have worked including decision-making restrictions) may be useful.

  5. Hi Mitch,

    While I am generally supportive of ABS, I’m not sure that this criteria “Arguments that raise risks (such as market consolidation) that are permitted to happen under the current model should be discarded” make sense.

    While there is a risk that I will fall down while walking in my back lane during the summer, the risk that I will do so right now while it is a sheet of ice covered with a thin layer of new snow, is a heck of a lot higher. Unless the risk is both permitted and its occurence of the same degree of likelihood in the current model ought it to be irrelevant.

    And for all the support of ABS the empirical evidence seems quite strong that the likelihood of the materialization of the risk of market consolidation is far higher once you have ABS. That may or may not be a good thing from an economics point of view, but it is definitely an argument that opponents can legitimately make regardless of whether some version of the risk exists now.

  6. Professor Woolley, to complete your slipping and falling analogy, one might think that we should salt the walk in Winter despite that there is a risk of falling in Summer and no one takes such action then. Then one would say “how can I think such a thing, in light of rule ‘3’? I must ignore all potential Winter risks that also exist during safe times of year, and refuse to salt the walk.”

    But in fact the correct way to analyse this analogy is to consider that not-slipping is a benefit. The argument to be rejected then is, since the potential benefit of not-slipping in the Summer can also be found in the Winter (if perhaps less often), we needn’t salt the walk. Applying rule “7”, we should discard this argument. Therefore, we may salt the walk after all.

    We should recall that a contradictory pair of statements, when taken together as premisses, can be used to prove anything. The author’s rules are in fact a command to “discard” all arguments whatsoever. The path to a productive discussion about ABS, it turns out, is one based only on consequentialist reasoning supported by quantifiable evidence, but which rejects any comparison of either the risks or the benefits of ABS with those of other systems.

    What am I now to do about rule “5”?

  7. John and David,

    My comments about the generational divide is based on my experience in this area. I have been, writing, teaching and speaking about the future of law and ABS across the country for the last 2 years, at law firms, law schools and conferences. Based on that experience, I see the divide on ABS as being closely correlated to generation.

    It’s not an ad hominem attack – it’s demographics.

    It’s unclear why either of you are offended by the concept that this discussion tends to pit younger members of the bar against older members.

    In fact, this demographic point should not at all be a surprise as it is completely logical. Why would you get offended or angry based on demographics?

    If either of you have experience that suggests that older lawyers have a tendency to be more supportive of ABS than younger ones, please share it. I have never seen that to be the case.

    As for my comment that rules are needed to keep the profession from “from looking like pompous, self-aggrandizing protectionists,” – it attacks no one.

    The profession already enjoys a very poor perception in the eyes of the public – otherwise the OBA would not have spent such a great deal of money on a PR campaign last year.

    This poor perception will only worsen if a transparent, methodical and evidence-based approach is not used. Without such a process the public will see this as lawyers protecting themselves. Again, it is unclear why you are offended.

    John- the Anti-ABS group have been very consistent in providing no evidence to substantiate its fears and conjecture. If its arguments were good ones, they should be able to find such evidence in Australia since 2000, and in the UK since 2011. If you have such evidence, kindly provide it. If there is cause and effect, please provide evidence of same.

    The rules are meant to ensure that emotion and conjecture are removed from the discussion. There are ample years of experience in Oz and the UK – logic dictates that we examine that experience and use it as the basis for rational discussions, instead of blindly saying, “what if” “what if”. Chicken Little belongs in nursery tales, not in the legal profession.

    David – you have jumped to the rather odd conclusion that ABS releases lawyers from responsibilities. No one has ever said that, and the legislation in the UK and Oz specifically states the opposite.

    How on earth could you come to such an odd conclusion?

    If there is undue pressure from investors, surely that would be found in OZ and the UK – please show me where that has been the case.

    Again, please make your arguments based on evidence, not fear or conjecture. You would never go into a court room and start raising all sorts of arguments without evidence – so why do it now?

  8. Alice,

    Your analogy doesn’t work. Winter is a change in environment, not an actor within the environment. ABS is a change in the actors.

    I am still missing the logic behind allowing market consolidation only in those instances where the risk of consolidation is seen as low – while prohibiting it in instances where the risk is seen as higher.

    How can such a determination be made in a methodical, transparent and evidence-based way?

    Law firms have merged and PI lawyers are consolidating.

    Unless you can show some evidence from the UK or OZ that market consolidation is harmful, you are simply playing a hunch.

    As lawyers we should not be making decisions based on “our gut” and how we feel.

    We have had lengthy experimental trials going on in other jurisdictions – why is the evidence that ABS does not create harm so readily rejected?

  9. Mitch you have entirely missed my point, which was not about ABS per se. You said this: “Arguments that raise risks (such as market consolidation) that are permitted to happen under the current model should be discarded;”

    And the problem with this point is that it conflates possibility of risk, likelihood of risk occurring and magnitude of harm. That something is possible now does not preclude the fact that it is more likely or more serious in different circumstances.

    So logically this makes no sense.

    Personally, I think your better argument re ABS itself is that market consolidation isn’t bad, for the reasons Bob Smith said in the last post: market consolidation may hurt lawyers, but unless it hurts consumers it is not particularly significant in determining the public interest.

    But, again, your post was purportedly not about ABS, but about forms of argument, which is what I was speaking to.

  10. RE:

    Much of the lawyering in the Ontario personal injury bar is of poor quality – and poor quality lawyering is an access to justice issue – isn’t it”. In other, earlier Law Times columns OTLA lawyers are quoted lamenting poor quality lawyering. Systemic substandard lawyering in the Ontario personal injury context (in such a highly profitable area of law) is an access to justice issue. Personal injury firms taking cases they aren’t qualified to handle is an access to justice issue (see example below). So why in the context of the ABS debate are the same lawyers now saying all is well within the personal injury bar where access to justice isn’t a problem?

    Law Times – Is it OK for personal injury firms to run TV ads?
    Monday, 18 July 2011
    “I’m finding now that there are a lot of firms who aren’t qualified [but are] advertising that they’re specialists in the field,” he says. “They get the case and then they refer it out to counsel.”

    There’s good reason for such firms to take a pass on cases that they find go beyond their level of expertise.

    “If somebody puts themselves out as an expert in a particular field and if they handle the case and they don’t handle it to the extent that an expert would handle it, they’re opening themselves out to a malpractice suit,” he notes.

    Meanwhile, Gluckstein suggests personal injury firms focus their advertising investments on specific segments of the health-care profession that have traditionally been a key source of referrals for high-value matters.

  11. “Generational divide” may be an argument as to demographics. “Twilight of their careers fighting to maintain a 19th century business model” seems in contradiction to the stated theme of your post – that is to say, hypocritical. Not to mention bringing up McCarthyism in the other thread. I don’t think you’ve violated Godwin’s law, at least…

    As to risks, though I haven’t read the full article, I believe Harvard Law put out a study about some of the problems with professionalism and conflict of interest concerns related to e.g. insurance companies’ involvement in personal injury practice, and skepticism as to whether access to justice was meaningfully improved.

    Again, I’m generally in favour of ABS, but not in favour of supporting it by gratuitously insulting those opposed (even if they started it, about which I have no knowledge) nor with selective interpretation of limited evidence from Australia and the UK or illogical arguments; consider their entire experience, warts and all, in considering what (if any) additional protections might be warranted to protect the public and the profession.