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:
- 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?
- 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;
- Arguments that raise risks (such as market consolidation) that are permitted to happen under the current model should be discarded;
- Arguments that ridicule, insult, demean or abuse those in the clinic trial jurisdictions are to be discarded;
- 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;
- “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;
- 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.