The Practice of Law: Then and Now
When the working title for this article was first penned into the planning notes of the Editorial Board a year and a half ago the general theme of this edition of Law Matters was historical perspectives. The intention was for this article to discuss changes in the legal practice and how lawyers need to adapt to those changes.
It later became apparent that this topic had been subsumed in a major initiative being undertaken by the CBA. I am of course referring to the CBA’s Legal Futures Initiative.
As that initiative will be the theme of a future edition of Law Matters we decided to use this article to give the reader a segue, introduction or simply some “food for thought” as you hear and read more about the Legal Futures Initiative in the weeks and months to come.
Unless you are planning to retire in the near future, you should have a keen interest in the future of the legal profession and the practice of law. The reality is that services we used to exclusively provide for clients are now been offered by others in a variety of ways that take advantage of innovation and technology and are driven by the competitive model of providing service at reduced costs.
If we do not change and innovate we run the risk of becoming as relevant to the delivery of law related service as door to door delivery to Canada Post’s business plan.
To discuss the changes in the legal profession and the practice of law we need a starting point. I had difficulty identifying a precise frame of reference. What exactly is the Practice of Law?
This is where I experienced a mini identity crisis. When I graduated from law school in 1980 and began my articles I had a clear understanding as to what the practice of law was. Lawyers:
- Represented clients in Court;
- Took instructions and prepared Wills;
- Negotiated and prepared contracts and resolved disputes over contracts;
- Provided advice to business clients, incorporated companies, drafted resolutions; and the list goes on.
In other words, I defined the practice of law by reference to the type of services provided by lawyers. For me the practice of law was what lawyers traditionally did.
Although I might find comfort that Black’s definition of the “Practice of Law” would to seem support this approach, the reality is that the areas that were once considered “the practice of law” have been eroded significantly and that this trend will continue at an accelerated rate in to the future. Defining the practice of law by making a list of what lawyers do would be an error.
In 1979 Mr. Justice MacDermid in discussing how to determine determining whether an activity feel within the practice of law said:
[T]his is the test, considering what the person has done can it be said that such should only be done by members of the legal profession in order that the public be adequately protected from acts by unqualified persons.
This does not provide a static definition but a fluid one that can changes as circumstances change.
A speaker at a CLE conference I once attended, in describing the practice of law, said: Lawyers do two things; we help clients avoid disputes and we help clients resolve disputes. The question is: Are we now the only ones capable of doing this? Our clients don’t seem to think so. Mortgages are being registered by title insurance companies, people are getting wills prepared online, “legal agents” are appearing in courts, registry offices are incorporating companies, “paralegals” are processing divorces, and mediators are helping negotiate settlements of family law disputes.
In 1980, when I began articling, the tools needed for dispute resolution and dispute avoidance were largely controlled by the legal profession. Since then new tools and techniques have been developed. Although lawyers can make use of these new tools we no longer have a monopoly over them and may be hard pressed to argue that we are the only qualified practitioners to wield those tools.
The consequence is that services that we would have previously considered as falling clearly within the practice of law are now being provided by other individuals. The list of those services that should only be provided by lawyers to ensure the public is “adequately protected from unqualified persons” is ever shrinking. We no longer have a monopoly over many services that we provide.
This is important to recognize as we go forward to discuss the future of the legal profession. Our profession needs to evolve but our law societies need to evolve as well.
Why? The law societies regulate their members. Only an active member is allowed to practice as a Barrister and Solicitor. However, law societies do not only regulate us when we provide services that no one else can provide. They regulates us when we provide services related to the law which are no longer exclusively the within the “practice of law’.
As we move forward to consider and develop alternative methods of delivering legal services to clients which could involve lawyers working with non-lawyers in the delivery of those services it is important that the law societies’ jurisdictions extend beyond lawyers to include non-lawyers who are appearing in Courts for clients, assisting clients in the conduct of litigation, preparing pleadings or papers for clients, conveyancing, preparing legal instruments or any kind or giving any form of legal advice (i.e. providing legal services or services relating to the law if they are not “practicing law”).
If this does not occur then the lawyer who provides these services to a client will be at a competitive disadvantage to the non-lawyer who is unregulated and does not have the obligations, responsibilities, and overhead which the Law Society places on its members. More importantly, from the perspective of protecting the public, the rules that apply to us and which have been developed to protect the public must extend to others providing legal services especially if those services are being provided through some connection with a lawyer or law firm.
Our failure to act on this could have disastrous results for us and our profession.
When we provide legal services with non-lawyers we indirectly provide them with credibility and “legal trappings”. Before we embrace this concept we need to ensure that they are subject to the same rules and ethical standards we adhere to. My concern is not just about protecting our turf. I am concerned about protecting the public, the consumers of legal services.
Tomorrow begins the future of the “Legal Profession”. It is hoped that you, the reader, will become involved in the discussion and that as we adapt to the changes we are facing our law societies do as well.
An excellent starting point is the CBA futures website at www.cbafutures.org. That site contains a number of insightful and informative reports of the work the CBA is undertaking. It also hosts forums that invite you to participate in the discussion on Twitter and there are a number of resources that have been developed to assist lawyers in adapting to changes in the legal profession. The resources are only available to CBA members and therefore if you are not yet a member of the CBA this is a good reason to join. Membership does indeed have its advantages.
Terry is a partner at Campbell Cooper Law in Fort McMurray. He also sits on the CBA Alberta Editorial Committee, and is a member of the Provincial Council.