I would like to thank the Alberta Branch for the opportunity to provide some of the context and rationale behind the CBA Legal Futures Initiative’s recommendation that not only lawyers should be allowed to own law firms. I would also like to thank the many members of the Branch who participated in our work, and, in particular, the leadership of Dean Holloway of the University of Calgary Faculty of Law who led our Education Team.
CBA Futures sought to help our members understand the causes of changes we were seeing the market for legal services and to help them adapt to those changes, with a view to better serving our clients. By better responding to client expectations, there is opportunity to better serve our clients, to grow our practices and, as a profession, to better play our role in society.
Our research found that how law has been traditionally practiced has contributed to our inability to meet our clients’ changing expectations. For example, clients spoke to us about their desire to see more interaction with the lawyers happen online, for legal services to be delivered using more structured processes which allowed for greater participation by them, and for prices for legal services to be predictable. As we considered how we could assist lawyers in learning how to practice in new ways which better resonated with clients, we noticed that the required skills and knowledge have not traditionally been taught in law school. Further, while some lawyers may have a passion for learning those skills and that knowledge, many we met would like to just practice law. Our research also confirmed that there is, indeed, a demand for our services and many unmet needs for legal services. For lawyers who would like to help meet that need and focus on practicing law, there may be room for other professionals to assist us in transforming how those services are delivered. Bringing their skill and knowledge to our practices could be facilitated, we concluded, by allowing them to have an equity stake in law firms.
We understood that these “non-lawyers” may have the power to make decisions within the firm and yet, under the current regulatory framework, would not have any obligation towards our law societies, nor would they necessarily have professional obligations towards our clients. We also heard – and agree - that the values and principles on which the lawyer-client relationship is based are not only important to clients and the proper functioning of our legal system, but also go to the core of how we distinguish ourselves from other professions. Our recommendation that “entity regulation” be adopted in Canada is an essential part of the ABS framework we propose for those reasons. In short, we recommended a balanced approach to ABS: the liberalizing of regulation on the one-hand and the introduction of new forms of regulation on the other.
Data from Australia and England and Wales, where ABS firms are now permitted, suggests that properly regulated, the ethical standards of firms can be maintained (even enhanced) and innovation is starting to take root. In England and Wales, the many ABS licenses are held by small firms and in both countries some unexpected entrants have come to the market: for example, Salvos Law which offers corporate commercial services, the profits from which are used by the Salvation Army to provide services to those in need and British Telecom’s in-house lawyers, who now offers legal services to other businesses.
We should also be clear that we did not see in ABS a panacea. We do not suggest that all firms need to become ABSs, nor that ABS’ will solve all that ails our legal system. It may facilitate progress towards solutions, however, and given the extent of the challenges we face, we believe this balanced approach is worth trying. For years we have seen access to justice remain out of the reach of many citizens and we now see many Canadians simply forego the assistance of a lawyer when a legal problem arises, even if they can afford one. Our research suggests that the reasons some Canadians do without legal assistance are rooted in things we can change. If that is so, as professionals, it behooves us to look into how we can make that change. Working more closely with those who bring to our practice skills and knowledge about how we could do things differently is one way to do that. We do not envisage them replacing us, but rather, like technology, helping us do our jobs better – in ways that better meet client expectations.
That said, ABS or not, we have much work ahead of us. ABS was only one of our 22 recommendations and we look forward to continuing the dialogue on how each of them may assist in ensuring that Canadians continue to benefit from the vibrant and relevant legal profession they rightly expect and deserve. A constructive dialogue is our preferred way to understand the challenges we face and the opportunities before us.
For more information, please visit www.cbafutures.org, join our Twitterchats or send us your questions and comments. We have enjoyed discussing our work online and in person, and in rolling out the first of the tools we are preparing to help lawyers bring our recommendations to life in their practices. We look forward to doing more of the same in the months ahead and to hearing from you.
Fred Headon is a General Counsel for Air Canada, and a past national president of the Canadian Bar Association (2013-14). Fred is the current chair of the CBA Legal Futures Initiative.