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ABS town hall brings out the skeptics

|Written By Dale Smith

The County of Carleton Law Association held a town hall meeting at the Ottawa Courthouse Wednesday night to discuss alternative business structures and answer questions its members have regarding the differing models as part of their survey process in preparing a report to the Law Society of Upper Canada. That report will form CCLA’s submission to the law society’s ABS working group as it considers whether ABS models might work in Ontario in order to address concerns about access to justice.

malcolm mercer
Malcolm Mercer says 85% of Canadians

Approximately 45 lawyers and paralegals attended the event, nearly all of whom indicated they had been reading up on ABS. Those who spoke and asked questions all expressed a great deal of skepticism to the model, particularly as it has evolved in both the United Kingdom and Australia. One panellist raised the notion that ABS could weaken the bar and the law society.

“In my view, if we introduce an ABS system that gives lawyers the right to sell a part of their practice to non-licensed lawyers, that will affect the independence of the lawyer,” said James Scarfone, of Scarfone Hawkins LLP in Hamilton, Ont., a past president of the Ontario Trial Lawyers Association and member of the law society working group. “It will be very difficult for a lawyer to separate the interests of the business, the shareholders, and the interests of the client.”

OTLA’s immediate past president, Charles Gluckstein, gave a presentation at the town hall outlining OTLA’s research into ABS, the position it are taking.

“We’re very concerned that there is not enough empirical evidence to suggest that ABS will actually work in our province,” said Gluckstein, a personal injury lawyer. “The examples in other jurisdictions where they’ve tried it are not proof enough that it’s going to succeed here. It’s essentially just making everything larger scale, but that doesn’t mean they’re going to do it better. The issues centred around access to justice have not proven that they have filled those gaps. There is no proof that technology is going to be improved.”

Gluckstein also noted reports from Australia where lawyers who left the large, publicly traded firms said they were told that they had to sell certain products to clients.

Those attendees representing real estate lawyers and other solicitors said they were not seeing an access to justice problem, which made it difficult to for them to seek solutions when they couldn’t identify the problem.

Bencher Malcolm Mercer, who is also part of the working group and a proponent of ABS, said the concerns around access referenced the figure that 85 per cent of civil legal needs were going unmet in Canadian society.

“The question for the profession and the law society is can we find ways to change that?” Mercer asked. “It can’t be right in the end that nobody else can provide legal services but lawyers and paralegals if lawyers and paralegals don’t provide those services.”

  • Chair, CBA Legal Futures Initiative

    Fred Headon
    I agree ABS is worth a try. The risk that clients' interests may suffer in an ABS is the same as it is the current model. For example, an associate seeking a bonus today may be tempted to over-bill or work inefficiently, just like an investor might (shortsightedly, I think) put pressure on inappropriate sales to drive a dividend. The difference is that today, the associate is subject to law society regulation. This generally works and we have processes to address problems when it doesn't. The CBA Futures report calls for entity regulation, so non-lawers in ABS' will also be subject to regulation to protect those principles and values which are core to the lawyer-client relationship. in short, same risk, same protection - with the added benefit of adding a proactive approach to compliance to improve problem avoidance. Evidence from Australia suggests it works. We owe it to our clients to serve them better. See www.cbafutures.org for more reasons why ABS can help.

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