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Gail J. Cohen

Profits don’t preclude professionalism

The Canadian Bar Association released its report on the future of the legal profession last month. It is absolutely worth the time to read the whole thing (which is at cbafutures.org). The report’s full title: “Futures: Transforming the delivery of legal services in Canada” gives you a pretty broad hint that it’s a wide-reaching document examining many areas of practice and regulation. It touts innovation, flexibility, and choice as the necessary ingredients for the future health and growth of the profession. The report is one of the most potent recipes for a New Legal Universe that has come from any legal association or governing body in this country, or even in North America.

The most obviously controversial recommendation (there were 22) is the opening up of law firm ownership to allow non-lawyers to hold the keys to the kingdom. The report calls for alternate business structures that let non-lawyers not only own all or part of a legal services company but also contemplates third-party investment, multi-disciplinary practices, fee sharing, and more. It clearly states: “The purpose of the law is not to keep lawyers employed. Rather, lawyers should survive in this changing environment because they bring value that no one else can — not because other providers are regulated out of the market.”

This idea, of course, sends chills through the hearts of many lawyers and regulators who want to maintain the legal services market as a monopoly. But the world is changing, technology is changing it, and the legal profession can’t ignore it any longer. A couple of provinces are already studying new regulatory options, but every law society should be doing it. The problem with Canada, as illustrated through various issues from internal trade barriers to the securities regulation system, is that nine or more regulators have responsibility for governing lawyers and not all are in step — and likely never will be. It makes change that much more complicated but is not an excuse to hold back on moving forward.

The CBA’s report has not even been adopted as CBA policy yet law societies shouldn’t wait for that. The report is the work of years of study by many levels of participants in the justice system and the legal profession. Change is happening and burying your heads in the sand isn’t going to change that. For there to be innovation and new service offerings in the legal sphere, there have to be other ways to raise capital for legal ventures. As one Alberta lawyer blogged: “I’m looking forward to the day on which a line of credit on your house is not the only funding option available to a new legal entrepreneur.”

The usual criticisms and complaints about outside money funding legal services are that ethics, professionalism, and solicitor-client privilege will all become victims of the drive for the almighty dollar. That’s demonstrably not been the case in the U.K. and Australia, where alternative business structures are already in place. The CBA report authors have carefully set out ways to ensure ethics and professionalism are maintained in areas such as fee-sharing, the actual provision of legal services, and more. One of the main safety measures, so to speak, being recommended is the regulation of entities that provide legal services in addition to regulating individuals who are licensed to practise law.

I am still constantly surprised to hear the critics who say the practice of law is now nothing more than a business rather than a genteel profession. Of course it is. Lawyers have to pay their bills and their clients want to get value and good service. Successful businesses innovate, see opportunity, and provide goods and services to fill gaps. There’s no reason not to promote that same entrepreneurial spirit in the law. Profits don’t preclude professionalism — and there are lots of gaps in services just waiting and needing to be filled.

  • How Will Corporatization Promote Professionalism?

    Chris Budgell
    As someone with considerably more courtroom experience than most SRL's I can offer a unique perspective.

    My initial reaction (subject as always to further consideration) is that this has the potential to make the challenge for SRL's even worse than it already is.

    I am reminded of a film I went to see twice in the same week it was released: The Corporation. Perhaps UBC Professor Joel Bakan should be canvassed for an opinion on the likely impact on access to justice of completing the corporatization of the legal business.

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