Lawyer competence is a relatively new concern for Canadian law societies. It was only in the 1970s, for example, that law societies really embraced the idea that they had a formal mandate to regulate the post-entry competence of lawyers. In addition to being a relatively new regulatory concern, lawyer competence is also an increasingly complex issue. Law practice has become highly specialized. Also, our understanding of lawyer competence has become more nuanced, now implicating a wide range of matters including, for example, technology, culture and wellness.

How best to handle this modern reality? Adding length and detail to rules of . . . [more]

“Personal plight” legal services are those provided to individual clients whose legal needs arise from disputes. Personal plight areas such as family law, refugee law, and human rights are the site of Canada’s worst access to justice problems.

The market for personal plight legal services functions poorly, as Malcolm Mercer and Amy Salyzyn have shown in this space. A key problem, I suggest here, is that it is too difficult for consumers to shop intelligently. This undermines healthy competition and legal professionalism, in addition to access to justice. Regulators can and should mend the market for personal legal services. . . . [more]

In a recent column in Canadian Lawyer, Ian Holloway, my Dean and friend, wrote in defence of lawyerly traditions, such as calling Ontario’s law society the Law Society of Upper Canada, and barrister’s robes. At the same time he emphasized the importance of professional innovation, particularly in legal education. He concluded that the ambition of lawyers should be “Change in substance, tradition in form”.

I have some serious reservations with Ian’s position. I agree that some of our traditions have modern advantages (e.g., robes neutralizing class and gender-based judgments of lawyers based on their clothes). But when we weigh the . . . [more]

In theory, contingent fee pricing is an elegant way of providing access to justice at a fair and reasonable price. In this column, I try to look at both theory and practice and also at prospects for reform.

Time and materials

Let’s start with a different approach to pricing. Legal work can be done on a “time and materials” basis (to use language from another industry), on a fixed fee basis or on a contingent fee basis. These different approaches shift risk between suppliers and consumers of legal services.

Legal work is still largely priced on a “time and materials” . . . [more]

What constrains lawyer conduct? I don’t mean in terms of positive law – i.e., the codes of conduct or the decisions of the court. I mean at its source – what is the bottom line restriction on a lawyer’s professional role? I’ve been thinking about this question a great deal following the story of Angela Cardinal– the sexual assault victim who was incarcerated for 5 nights to ensure her testimony in a preliminary inquiry (trial judgment here; media reports here and here). If what happened to Angela Cardinal was wrong (and I think it’s hard to argue that . . . [more]

Spring is upon us. Law school exams are over but students are still in law libraries, studying for the bar exam. These students are looking forward to becoming articled students and then lawyers. Others have received acceptance letters and are looking forward to starting law school in the fall. It is the circle of law.

I recently met a future law student, full of enthusiasm and excitement at the prospect of soon beginning law school. He was kind enough to write to me after the brief meeting and seek my advice on what to read to prepare for law school; . . . [more]

There has been no shortage of press on the conduct and competence of Canadian judges lately. Headlines abound about “Alberta judge who asked sex assault complainant about keeping her knees closed”, the “Hamilton judge who wore Trump hat” and the “Nova Scotia judge under fire for claiming ‘a drunk can consent’” So notorious are concerns about Canadian judges that the comedy show This Hour has 22 Minutes ran a sketch about neighbours being scared when a judge moves in down the street.

More recently, an article ran in the Globe and Mail which appears to suggest another, . . . [more]

Is continuing professional development a waste of time? Or, more specifically, have law societies made a mistake by using mandatory professional development as a mechanism for ensuring lawyer competence?

The Supreme Court of Canada recently upheld the Law Society of Manitoba’s mandatory CPD requirement in Green v Law Society of Manitoba 2017 SCC 20. I blogged about the case at ABlawg.ca, where I suggested that the Court’s decision was obviously correct. My analysis on that point was, though, premised on principles of administrative law – my claim was that the Court was correct to hold that the Law . . . [more]

It is commonly difficult for prospective clients to obtain good information about lawyers and paralegals. The significant growth of brand advertising is cogent evidence of this. Potential clients assume that brand is evidence of quality when that may well not be the case. Substantial sums are paid for brand advertising because it works. Similarly, the advertising of dubious awards and reassuring photographs evidences that lack of genuine information about quality.

Concerns about lack of information

A recent market study in England and Wales by the Competition and Markets Authority said that:

… consumers generally lack the experience and information they

When I suggested ten years ago that email would become the principal means by which clients and lawyers would communicate, many people suggested I was dangerous, that I was possibly insane, that I should not be allowed to speak in public, and that I certainly did not understand anything about security or confidentiality but [email] technology and many other emerging technologies have now firmly taken hold.[1]

So much has changed in a relatively short period of time when it comes to our use of technology in delivering legal services. As noted by Richard Susskind above, the use of email . . . [more]

The Law Society of Upper Canada is undertaking (yet another) review of its licensing process. This is at least the fifth time that it has examined changes to the licensing process since 2000. However, in all of these reviews, the Law Society has never actually examined the actual working conditions of articling students. In this it is not alone. I am not aware of any Law Society in Canada that has done so. The Law Society of Upper Canada now has the opportunity as well as the responsibility to undertake such research.

There is both a policy imperative as . . . [more]

Ever wondered what government lawyers and superheroes have in common? Although you are unlikely to see counsel in capes, flying through the metropolis, government lawyers and superheroes serve the public in the pursuit of justice. Both are accurately described as guardians of the public interest, albeit in very different contexts. Government lawyers and superheroes also hold great power and must use it to advance the public interest ahead of all else. And with great power comes great ethical responsibility.

The intersection of professional responsibility and the public service situates the unique role of federal and provincial government lawyers in the . . . [more]