ABS D.O.A.? Idk
Is the debate over Alternative Business Structures in the legal profession dead on arrival before it truly begins? I don’t know.
Among the most active participants in the current debate, things are hardly over. But from my perspective, the volume and passion of the opponents of ABS is such that much of the potential discussion risks foreclosure. If ya ain’t fer us (the opponents), yer agin’ us!
The opponents raise many valid concerns that warrant further exploration, most significantly the risk to the public interest if a lawyer’s duty to the client and her ethical obligations could be comprised by a non-lawyer shareholder interested solely in maximizing profit. But when this concern is laid down as a trump card to end debate rather than something to be examined, say, in light of how this differs in significance or scale from tension faced by in-house counsel or by the member of a 4000 lawyer international firm, we are entering “won’t somebody please think of the children” territory.
To be clear, I’m not looking to choose a side or win a debate here.
To be even clearer, I’m not suggesting that opponents have not included helpful guidance and suggestions in their largely well researched and well thought out papers on things the legal profession and legal regulators could be doing to improve access to justice, innovation and modernization. There is some good stuff in the CDLPA and OTLA papers.
What I am saying is we should be comfortable keeping the theoretical possibility of adopting some form of ABS as part of a discussion of how a legal regulator advances the cause of justice and the rule of law, facilitates access to justice and regulates the profession in the public interest.
Does the earth revolve around the sun or does the sun revolve around the earth?
In the Dialogue Concerning the Two Chief World Systems (Dialogo sopra i due massimi sistemi del mondo), Galileo explored the heretical Copernican idea that the earth revolves around the sun and contrasted it with the then accepted view that the sun revolved around the earth. In the present debate, ABS seems to be taking on the role of the earth, and much of the conversation presupposes that its locus is it at the centre of the universe. I hope this is only temporary and a consequence of the fact that the impetus for the present debate (at least in Ontario) is the September 2014 Law Society of Upper Canada consultation document that introduced a few possible ABS models and offered an indication why it was being considered:
The Law Society is considering the ABS model in light of several factors, including apparent gaps in the provision of legal services, the increasing globalization of the legal profession, and advances in technology and developments abroad, that significantly affect how legal services can be delivered.
On one hand, it’s unsurprising that the ABS models of non-lawyer ownership occupy the centre of the debate because that’s precisely the point of the consultation. On the other hand, and this appears to be well understood by participants, the motivation for even initiating the debate is due to a variety of factors, both internal (law society mandate concerning facilitating access to justice) and external (gaps in access, globalization, technology, etc…). These factors, I submit to you, belong at the centre of this universe and, in fact, were placed in precisely that spot by the Law Society.
I’ve read the Law Society reports (Interim Report to Convocation – June 2013, Report to Convocation – February 2014, Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper – September 2014) and I’ve listened to their pronouncements on anticipated further process. What I read and hear is evidence of a slow, methodical and broad-based approach to information gathering structured to develop an understanding of the issues, while seeking to remain open to all inputs. In light of the coming Bencher election, it’s unlikely the Law Society leadership will even be in a position to absorb what it receives and formulate ideas before the end of 2015. Pushing to 2016 the window in which the responsible committee can develop recommendations, and then possibly into 2017 the point at which the full Convocation can adopt recommendations…which will then be put back to the membership for further consultation in late 2017 (at the earliest) or even 2018. Ultimately allow for implementation by 2019…or roughly around the time Ontario lawyers start thinking about the next Bencher election.
Why on earth (wherever it is positioned in our universe) would we want to shut down all thinking about ABS in early 2015??
The approach and realistic timing of Law Society review suggests that no one there is in a rush to force the profession down an uncharted path or to place ABS at the centre of its efforts to carry out its full mandate. Even the greatest proponents of moving quickly to new business approaches in either the Australian or U.K. models must certainly understand the long horizon of review that will come before any change occurs.
Get comfortable with a range of possibilities
Zealous advocacy is a hallmark of our profession and I have no desire to recommend that anyone temper their arguments for or against what they believe is necessary and right. But another amazing quality we possess as lawyers is our ability to argue “in the alternative”.
This is what I’d invite you to do to keep this debate alive and to ensure that legal regulators (whether in Ontario or elsewhere) have the information they need to understand the issues and to make the right judgments in the public interest.
Need some suggestions? Start by looking at the CBA Futures Report on “Transforming the Delivery of Legal Services in Canada” and come up with the regulatory rules and guidance you consider necessary if anything other than absolute prohibition of ABS comes to pass. Maybe something like this:
In the alternative, if ABS models are permitted:
- the law society may need to regulate entities and not just lawyers
- the law society may need to clarify lawyer obligations concerning duties and scope engagements with non-lawyer partners/shareholders/owners
- the law society may need to ensure inter-jurisdictional regulatory consistency across Canada and elsewhere
In closing, all I ask is that we all keep the debate wide and alive.
Won’t somebody please think of the children?
Great article Colin, thanks for writing. I’ve been disappointed at how quickly ABS business models are being dismissed by commentators and bencher candidates alike.
The experience from Australia suggests that ABS non-lawyer ownership is most popular for small law firms. Large corporate shareholders tend to be the exception, not the rule. More often it fosters law firm ownership and management participation from office staff and spouses.
As far as access to justice is concerned, it’s important to think about a major straight jacket on innovation: funding for new IT systems has to come from partners’ debt. Allowing equity investment would greatly expand the ability of Ontario’s law firms to adopt systems to better serve clients.
Ethical standards can be maintained with the LSUC’s help. We just need to keep talking about how to make that happen.
Very well said, Colin. The unhappy parallel with our present course is the ABA’s Commission on Ethics 20/20 which, at one point in its deliberations, floated the concept of “non-lawyer” participation in the ownership structure of law firms. Almost immediately, a small group of influential state bars exerted tremendous political pressure and succeeded, not in defeating the concept in an open and reasoned debate, but from preventing the Commission from even considering the idea.
When one side in an argument concentrates all its efforts on stopping the debate from even occurring, lawyers especially should be galvanized to respond.
Both sides in this debate (and I’m firmly on the side of liberalizing regulations concerning the provision of legal services) need to start honestly addressing one single concept that lies at the heart of this argument. That concept is risk. Lawyers, as need hardly be restated, intensely dislike risk, and our natural inclination is to either (a) extinguish it altogether or, if extinguishing is not possible (b) abandon the endeavour that contains this risk. Every other trade and profession in the world seems to have found a way to accept risk and work it into its calculations; we apparently have not.
There is a risk that the introduction of non-lawyer ownership of law firms will lead to the destruction of legal ethics, the loss of lawyers’ duty of care to their clients, and the corporate takeover and perversion of legal service provision. I happen to think that risk is exceedingly small — but the chance of it happening is not zero. It would be disingenuous for liberalizers like me to pretend this couldn’t happen — of course it could.
But the mere existence of a risk of bad outcomes from trying something new isn’t a good enough reason not to try. It’s not sufficient to say, “Something bad might happen; better not try it.” That may be the archetypical lawyer’s response to the situation (and if you’re in any doubt about that, ask a few clients), but it has no utility or traction in the everyday world.
The identification of risk is not the end of the debate; it’s the start of it. Why do we believe there is a risk? What evidence supports that belief? What defensible lines of reasoning reinforce it? If the risk comes to pass, what would be the impact? Could it be managed? Could it be mitigated? If the whole idea turns out to be a disaster, could it be reversed? These are the questions ABS opponents must ask and must answer. This is the nature of reasoned inquiry. It’s what we’re supposed to do as lawyers.
Equally, on the other side of the debate lies the opposite of risk: opportunity. ABS proponents see the opportunity for improved access to justice, enhanced quality of legal services, and a stronger legal profession better able to defend itself against inevitable attacks to its ethical integrity from outside forces (pro tip: keep an eye on the state). It is these opportunities that drive proponents to their position.Trust me, we’re not doing this because we heart Wal-Mart.
But again, equally: the identification of opportunity is not the end of the debate; it’s the start of it. Why do we believe there is an opportunity? What evidence supports that belief? What defensible lines of reasoning reinforce it? If the opportunity is borne out, what would be the impact? Could it be further enhanced? Or will it take us as far as it can go? What of the risks? Are they real or imaginary? Could they be managed and mitigated? These are the questions ABS proponents must ask and answer.
And finally, both sides must ask themselves, and each other, the most important question of all: Is the reasonably foreseeable risk too great for us to take the reasonably foreseeable opportunity? That is exactly the kind of question that good, honest, clear-sighted legal reasoning is meant to tackle.
My own reasoning and inquiries to date have led me to conclude that the answer to that question is No. We should take the opportunity, mindful of the risks and ready to manage them if and as they emerge. Others may arrive at different answers.
But the only way to arrive at any answer to that question is through the process I’ve laid out above: Free, open, honest debate based on hard facts, conducted with analytical reasoning, and carried out with the interests of the public always at the forefront. This is what we’re good at. This is in our wheelhouse. Let’s do it already.
There’s a simple answer to the author’s question: “Why on earth would we want to shut down all thinking about ABS in early 2015??” — We don’t have the evidence needed to have a productive “debate” now. Of course, no one is actually saying that we should “shut down all thinking” (though I’m not sure what that means); rather they are saying that the results in Australia and the UK are still unclear and that it would be safer to wait for more data.
I think the truth of this proposition is demonstrated by the “debates” we’ve seen here on Slaw. A number of researchers and organizations have brought out thorough and critical reports and consultations (respectively), the general messages of which have been that evidence is lacking and that lawyers in Ontario would prefer to be patient (respectively). (I assume these consultations are what the author here is responding to.) And on the other hand we have seen professional legal business consultants who clearly have hands in the game making arguments in favour of ABS on water. There’s a fair share of this latter phenomenon on the anti-ABS side as well, people arguing against it so convinced of their position that one wonders whether they are motivated their own pocket-book and lawyers’ current “monopoly” of ownership.
The debate is not constructive now because on the one hand we lack evidence and on the other hand the green fingertips of mammon are already massaging and warping the dialogue. (I guess the first hand has no fingers.) That’s why we should — not “shut down all thinking” — but hold off talking about it for a few years until someone has something more constructive to say.
Thanks, Colin. I think you set out some important points as we keep this in perspective. As the Chair of the CBA group that wrote the report you mention, it will not be a surprise to learn I am in favor of loosening the restrictions on law firm ownership and adopting new forms of regulation to protect those value and principles which are the foundation of our relationships with clients.
My views are very similar to Jordan’s comments, above, so I won’t repeat those points now. However, if I may, I would like to try to convince John Kozair that we can have a constructive debate now. Indeed, the Australians moved to ABS without any evidence and England and Wales followed with much less evidence than is available today. The evidence we do have many not be extensive (please see http://www.cbafutures.org for some of it and how we view it, as well as various posts on Slaw, notably one by Malcolm Mercer about Nick Robertson’s research). However, between the ABS experience elsewhere and our experience regulating the legal profession in Canada under the current framework, we can identify the issues and mitigate the risks, as Jordan points out. Our research confirmed that many of the obstacles to our profession remaining a vibrant and relevant part of Canadian society are within our ability to overcome. To do so, we will need to deliver legal services differently and that takes knowledge and experience that is not acquired in law school, at least not today. It may also take money. For both reasons, ABS provide an opportunity (among others) to do more and to do it better. Given the state of access in this country, it behooves us to try, even if we refine things later. Given that our clients’ expectations are rapidly changing, we must adapt to better serve them and to play the role expected of the legal profession in a society like ours. For both reasons, we should do so quickly, though, of course, not without regard for the risks. ABS may not cure all that ails our legal system, but as with environmental matters, even small steps in the right direction can make a constructive difference. If ABS can help us better connect with clients who do not work with lawyers today when faced with legal issues, if ABS can help reduce the cost of delivering some services, if ABS can do these things without undermining our client relationships, then why should we not do our best to address the risks and embrace the opportunity?
And when evaluating the risks that arise from permitting ABS’ – let’s not compare them to an idealized vision of regulation. Our current structures are not perfect either. For those who might ask “how could we dare experiment with ABS and put client interests at risk?”, there are lawyers who fall short today, unfortunately, as the workload of discipline committees and insurers attests. The CBA Legal Futures Report proposed entity regulation as a means to help reduce the risk of lawyers falling short and to ensure that non-lawyers who may have a stake in law firms are not able to exert pressure that interferes with ethical standards to which we are held. The evidence in Australia suggests this approach has beneficial effects. Perhaps we should adopt it with or without ABS.
With that, I hope we will learn what we can from other professions and other jurisdictions and bring the best of all worlds to bear to our reflection on how we might seize the opportunities that come with ABS while properly protecting the values and principles that are at the foundation of what we do. I remain of the view that we have enough material to work with in a meaningful way now and there are good reasons to continue the discussion without waiting any longer.
February 9, 2015
Jordan, you say, “But the mere existence of a risk of bad outcomes from trying something new isn’t a good enough reason not to try. ” You could not be more tragically wrong. One of the major problems is that, once you sell ownership of the legal profession, you can never get it back. You cannot undo ABS once it is allowed. It is irreversible and permanent. That is reason enough not to entertain it.
Mitch Kowalski has said the onus was on those opposed to ABS to show the harm. I replied with the truth, namely, that he had it exactly backwards. The onus is on those who want to make a permanent, irreversible gargantuan change to show that overturning centuries of independence will not result in harm. That is impossible to show given that the harms are already increasingly apparent elsewhere. Hence, ABS should be killed, and now.
There are three possible outcomes of adopting ABS. Change for the worse, the status quo*, and change for the better. In only one of those three is ABS beneficial. ABS supporters bear the burden of having to show that the last outcome is virtually guaranteed to happen, because the profession and the public cannot take the risk that the first outcome will happen and because there is no point to this exercise if the middle outcome is all that happens. *By status quo, I do not mean the same way of practicing as we do now. I mean no net benefit to the public. And in terms of how we practice now, we are in constant flux as it is. We always are. The profession has always happily and willingly adopted and adapted technological and other improvements as needed and as they arise. Teraview and social media are but two examples. We do not need ABS to continue to do that.
ABS supporters want to make an irreversible change (1) that can never be undone, (2) that is already showing clear signs of anti-competitive cartelization, (3) that features players who candidly admit for attribution that further cartelization is exactly what they are striving for, (4) who admit that the main `benefit` is access to outside funding to bring about yet more consolidations, and (5) that is guaranteed to harm our professional ethics over time whether the supporters want to believe or not. It is up to the ABS supporters to demonstrate that the public and the profession will not be harmed. The onus is squarely on the ABS pushers. So far, they have failed utterly. The problems with ABS are huge and obvious to all but the steadfastly misguided.
Here is a recent (January 2015) item from the UK:
“An entrepreneur has revealed plans to combine a claims management company, a consumer website and the clinical negligence department of a top 100 firm to form a market-dominating alternative business structure (ABS). Sajid Hussain, managing director of legal process outsourcer the Outspire Group, said he had secured £8-£12m of funding over five years for the ABS and now just needed lawyers.
“I want to dominate the market,” he told Legal Futures……“We are dead serious about this. The market is becoming saturated with personal injury firms, but a lot of them don’t have a clue what they’re doing. Plenty of professional negligence cases will be coming out of this arena very soon……The playground has changed. Mr Hussain said he had secured the cash from two main funders he did not want to identify to invest in the ABS. He said he was currently negotiating with a top 100 law firm, which would transfer its clinical negligence department into the ABS, along with 5R1, the claims management company he founded…..He said that if the talks with the law firm did not produce results, other arrangements with law firms would be explored, with the aim of securing a deal at the latest within three to four months. “If you’ve got the money, you’ve got to put it into a vehicle,” he said. “Whoever’s got the cash is in the driving seat. Everything is in place, the business plan is done and now all we need is the specialist lawyers.
“If one firm is big enough to handle the amount we generate, we can do a deal with them. If not, we will go to multiple firms. Our problem is that we’ve got too much work and we need to find a home for it”. Mr Hussain said he was confident that the ABS would aim to generate £125 to £225m in revenue over five years. “This will be a good thing for the clinical negligence industry,” he added. “The aim is to reduce the cost of running cases without losing the specialist approach of lawyers.”
A number of issues arise. First, PI is not a playground. Second, he makes no bones about wanting to dominate the market. Third, he wants to do it with investment money from investors he does not want to reveal. Great. Just what we want – shadowy ownership of the legal profession. Fourth, he happily says, “Whoever has the cash is in the driving seat.” And who has the cash? The unnamed investors. They, not the lawyers, will be in the “driving seat”. Fifth, he is happy to denigrate the PI bar in the UK even though he says he needs to find some law firms to buy (control). Sixth, although he claims all this “domination” will benefit the public, consistent history Economics 101, and common sense prove otherwise.
And some people want that in Ontario. Good grief.
I am puzzled to my core that smart people would even consider the worst idea to hit the legal profession in several centuries. I agree with the Americans that it is an idea that should not even be considered, so bad it is. The overwhelming evidence is that ABS has not helped the public (other things have but they did not need ABS). Even the lord chief justice of England, in January 2015, has called for an inquiry into why the public is not benefiting. (We could tell him why there was never any chance they would.) The real barrier to access to justice is overwhelmingly (nothing else comes remotely close) the time and cost of litigation, and ABS will do precisely nothing about it. In fact, the outside investors will resist any laudable changes that would bring down the cost of litigation because the higher the cost of the litigation world, the higher their returns.
Every single supposed benefit of ABS can be achieved without selling out to outsiders. I have seen some news items that say that ABS firm Such and Such has just made a lot of money, but when you look into it, you learn that it had nothing to do with ABS. A law firm had a good idea and took advantage of it, often by way of a kind of rolling class action. They could just as easily have done it as a law firm, not as an ABS.
The overwhelming evidence is that all ABS does is allow access to outside capital to fund ever increasing corporate concentrations in the legal marketplace by inviting in nonlawyer behemoths whose sole purpose, sole purpose, is to make money out of the clients of the law firms (and partly by siphoning off some of the lawyers’ incomes). There is no chance that such models can benefit the public. Further, there is no chance that so-called “protections” can long withstand the heavy pressures from the capital venturers to enhance the returns on their investments. The lawyers in such models are going to be answerable to the paymasters. Anyone who thinks otherwise is naïve in the extreme or secretly self-interested.
In terms of access to justice, the bigger the law firm, the higher the costs to the clients, the smaller the firm, the more reasonable the costs to the clients. So why would we want a system that engenders even larger, but fewer, big firms and far fewer small firms? Overall, such a system will even reduce the number of lawyers in private practice, further reducing choice to the public. No-one can claim, with a straight face, that that world will enhance access to justice. Although small firms can do much of what big firms do and at lower cost, the big firms are great at a number of services that smaller firms cannot do, multinational mergers for one, but to do that work they do not have to become partly or largely owned by multinational behemoths. Note, too, that the would-be buyers of our big law firms dwarf even our biggest firms by a ratio of an elephant to an ant. Who is going to call the shots? The local members of the puny little legal division in Ontario (where is that again?) or the head offices in Bern, New York, London, Beijing, Moscow or Tehran? I am all for foreign investment in Canada, but not at the inevitable cost of the independence of our legal profession. Let us remain independent even as we advise them on how to invest here. In fact, our very independence will enhance our abilities to properly advise them.
Most supporters of ABS fall into the following camps. First, to be kind though I think they are in the minority, the misguided true believers. Second, the people who think they will profit from it either by selling themselves as management consultants or by selling themselves and their firms to the highest bidder investors. Third, big firm types who want to bloat up their firms to gigantic size in a marketplace of fewer and fewer behemoths. How this will help bring down costs to the public or enhance access to justice is never explained.
Not one supporter believes that ABS will reduce their incomes. They may be content if ABS reduces the incomes of lawyers in practice areas other than their own, but they sure do not think they will be harmed; they think they will benefit. All the blather about helping the public is just that – blather. The only way in our current legal environment to really help the public is to bring down the one horrific and ruinous barrier, but nothing, nothing, is being done about that, at least not yet. Instead, we have completely wasted two years on the utter insanity of ABS.
Then, it is pointed out that in Australia, small firms are opting for ABS so that they can income split with their spouses and kids, and reward staff. These are tissue-thin, even repugnant, reasons for us to want put our ethics and independence at grave risk. Yet again, most ABS supporters are exposed as self-interested. They have visions of tax benefits dancing in their heads. The public interest is just smoke. They want to burden the public with having to make up the lost tax revenues. It is naked hypocrisy to even advance such a reason.
Ivan, you say “The experience from Australia suggests that ABS non-lawyer ownership is most popular for small law firms. Large corporate shareholders tend to be the exception, not the rule. More often it fosters law firm ownership and management participation from office staff and spouses.”
I have skewered the foolishness of that already, but you should know that in the UK, the experience is the opposite, namely, that non-lawyer ownership is mainly the preserve of huge corporate investors. You should also know that to income split with family would require legislative amendment, and there is no government in Canada that is going to give the legal profession that cookie. They could not afford it, nor could they afford to deal with all the other professions that would then clamour for it, nor can they risk the public relations black eye.
As for rewarding staff, they can be rewarded with salaries and bonuses. Sell out the independence of the legal profession for that? We would have to be nuts. Such an argument is just self-service in disguise.
Then it is said that we need equity infusions to afford technology. Again, where is the slightest proof of that? If the technology is that good, then acquiring it through debt will not be a problem. Creditors will line up at good rates to lend money to a profession that is certain to monetize the acquisition, make profits, and repay the debt. At least with debt, you get rid of the creditors once the debt is paid and they never have a say in how your run your firm. With equity owners, you can never get rid of them and you can bet your life that they will be having a rather important say in how you run your firm in order to bulk up the return on their equity.
Jordan, you say, “ABS proponents see the opportunity for improved access to justice, enhanced quality of legal services, and a stronger legal profession better able to defend itself against inevitable attacks to its ethical integrity from outside forces (pro tip: keep an eye on the state). It is these opportunities that drive proponents to their position. Trust me, we’re not doing this because we heart Wal-Mart. ”
I am glad that you do not heart Wal-Mart which, by the way, has not become an ABS investor, but for the life of me I cannot understand why you are doing this at all. Undeniably, you are courting the certain scorn of history. So why?
The ABS supporters may claim that they see opportunity for improved access to justice, except it has not happened. See the concerns of the lord chief justice in England and of many other on-the-spot observers and commentators. Further, it is beyond comprehension that anyone could possibly believe that sharing our ownership with utterly profit-motivated non-lawyer owners will strengthen us and enable us to better defend ourselves against the attacks from the government.
First, self-regulation was taken away from the Aussie legal profession and taken away from the English legal profession BEFORE non-lawyers were allowed to buy law firms and impose their profit-taking ethos on them. The governments there took over the regulation, put it in the hands of their beholden appointees, and then, not caring much about the hard-won, over centuries, independence (hard-won viz-a-viz the governments!!) of the legal profession, blithely gave it away to profit-takers. Second, there is no way we can long maintain to the Ontario government that our overwhelming major duty is to our clients, when we will most certainly have a crushingly heavy duty to the non-lawyer investors. The government will not believe it and neither will the public. Allowing ABS in Ontario is the death knell of self-regulation, not its salvation. As with so much of the nonsense surrounding ABS, its supporters have this point exactly backwards. Jordan, you and the others are on exactly the wrong track if you think ABS will either enhance access to justice (since it has failed to do that and will continue to fail to do that) or somehow preserve our self-regulation.
John, you mention our “current “monopoly” of ownership”. Yes, we do have that, and except for the time and cost of too much of the litigation world (there are still litigation files that are handled cost-effectively), our monopoly of ownership has served the public extremely well. Consider the alternative. Shortly after First American Title came up here as First Canadian Title and first got their licence to sell their horrendously expensive, “dysfunctional” per California and “invidious” per SC of Iowa product, they went to the Government and tried to claim that it was unfair that the 7,500 real estate lawyers in Ontario had a “monopoly” on conveyancing, and said that all they wanted to be was the 7,501st competitor. The reality is that they wanted to use their billions to loss-leader the vast majority of real estate lawyers into extinction and then, having swept the competition aside, soak the public forevermore. That is exactly what that highly cartelized industry did in the US where, according to Fitch Inc., just four behemoths have 87% of the market. Contrast that with the competition and high levels of service formerly afforded to the US public by the now eradicated 80,000 former real estate lawyers. A lawyer I spoke to in Florida said that she and all the other real estate lawyers in her city were wiped out in six months by the predatory pricing and, once they were gone, the title insurers began charging four times, while driving standards into the mud, what the lawyers had ever charged. Why would we want that here?
Our so-called monopoly is not a monopoly as that word is generally used. It is a monopoly with, in Ontario alone, over 30,000 private practice competitors, 7,500 in real estate alone. In Ottawa alone, I have 400 competitors in a ferociously competitive market. The US title insurance industry would love to reduce the 400 to 3, the 7,500 to the same 3. Misconstrue our “monopoly” at your and the public’s peril and enormous cost.
Fred, you say, “we can identify the issues and mitigate the risks, as Jordan points out. Our research confirmed that many of the obstacles to our profession remaining a vibrant and relevant part of Canadian society are within our ability to overcome. To do so, we will need to deliver legal services differently and that takes knowledge and experience that is not acquired in law school, at least not today. It may also take money. For both reasons, ABS provide an opportunity (among others) to do more and to do it better. Given the state of access in this country, it behooves us to try, even if we refine things later. Given that our clients’ expectations are rapidly changing, we must adapt to better serve them and to play the role expected of the legal profession in a society like ours. For both reasons, we should do so quickly, though, of course, not without regard for the risks.”
No, we cannot mitigate the risks. The power of money is too strong, especially over time. Whatever wedge we open now is dead certain to widen. The risks are far too great and far too certain to transpire.
You say that the obstacles are within our power to overcome. In that, you are correct. You then go on to say that we need ABS to do it. In that, you are dangerously incorrect.
The state of access you refer to is too broad. There is no access to justice problem whatsoever for wills, powers of attorney, estates, real estate and small business set-ups. There is, as I seem to have to keep pointing out, one huge, distressing barrier to access that dwarfs by far all others combined and that is the time and cost of litigation. ABS does nothing about that. If anything, it imports more profit-seekers who will not be interested in reducing anything would reduce their profits.
The answers to improving access to justice are (1) greater public education which can be easily and disinterestedly (as opposed to self-serving ads by firms) delivered by the Law Society at remarkably modest cost per member, and (2) legislative amendments to the litigation process. Neither answer needs ABS in the slightest degree. If we do those two things, the problems are solved to beyond the point of diminishing returns. ABS, far from helping us work on the real answers, is merely a smoke screen to avoid having to tackle the real problems. That is one of the great shames of it.
Fred, you also say “ABS may not cure all that ails our legal system, but as with environmental matters, even small steps in the right direction can make a constructive difference. If ABS can help us better connect with clients who do not work with lawyers today when faced with legal issues, if ABS can help reduce the cost of delivering some services, if ABS can do these things without undermining our client relationships, then why should we not do our best to address the risks and embrace the opportunity?”
Any small steps in the right direction will be accompanied by huge steps in the wrong direction. The small steps are therefore not worth the backward steps. ABS is not needed to help us connect with clients and potential clients. Use of social media and other beneficial technologies is exploding within the legal profession everywhere you look. ABS has not been needed for that at all. That, plus the public education initiatives and legislative amendments to the litigation system that I have described elsewhere, are all that is needed, not selling our ownership to a Russian oil company, a Swiss bank, a German insurance company, a Dutch brewery, an American venture house, an Australian megafirm, or my wife.
Do you really think that these owners, headquartered elsewhere and run by executives who are answerable to their foreign shareholders and boards are going to be more interested in the public interest of Ontario citizens than we are??
We do not need ABS to bring about the benefits you cite. ABS will harm the benefits you cite.
To those who, unaccountably, still cling to the poison apple of ABS, I beg you to have the courage of epiphany. See the big picture. Take the long view. For some of you, put aside your visions of making money out of this. Put the long-term public interest ahead of your own. And above all, put the long-term independence and salutary ethos (that most of us in fact do adhere to) of the legal profession first and foremost. ABS will irretrievably sully that. It already has elsewhere. Let us not do it here.
Fred, you say, “Ì hope we will learn what we can from other professions and other jurisdictions and bring the best of all worlds to bear to our reflection on how we might seize the opportunities that come with ABS while properly protecting the values and principles that are at the foundation of what we do.”
Instead of bringing ABS here with all its dangers and obvious harms, why not simply cherry-pick anything useful that accidentally comes out of the UK or Aus? Why not let those two sad jurisdictions lose self-regulation, become regulated by government appointees, sell the independence of the legal profession, cartelize themselves, become accountable to profit-takers, while we simply snatch the accidental benefits and adapt them for here?
Put another way, why not let us maintain our self-regulation, keep the government from turning over our regulation to its cronies, maintain our salutary independence, avoid cartelization, remain accountable only to our clients and ourselves and nobody else, and simply snatch the accidental benefits and adapt them for here?