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Practice group prognostication

In his inaugural Follow the Money column, Jim Middlemiss predicts what areas of practice will be most lucrative in the coming years
Practice group prognostication
Illustration: Matthew Billington

Two decades ago, e-commerce law was all the rage. The dot-com bubble was fully engaged and law magazines touted the rise of e-commerce lawyers. Law firms scrambled to create e-commerce practice groups.

Fast forward 20 years. You are hard-pressed to find stand-alone e-commerce practice groups. Rather, the expertise is now tucked under the technology or corporate commercial group.

It shows that practice areas come and go, as they always have in the business of law, as astute lawyers work to serve clients and capitalize on opportunity. Follow the Money is about looking at the business side of law and examining emerging trends and issues. If legal soothsayers could see into the future, what would prognosticators see as the next hot practice areas?

I believe we have a legal crystal ball when it comes to the legal future. It’s in the form of pending legislation, court rulings, shifting demographics and spotting emerging trends.

The rise of powered vehicles, for example, paved the way for personal injury lawyers in the early part of the 20th century.

Currently, law firms are busy building marijuana practices — today’s e-commerce — but the impetus for that stemmed from a Supreme Court ruling almost 20 years ago allowing medical marijuana.

So, what are the stars telling us about the next opportunity? Here are my predictions for eight growing practice areas.

1. Health law will likely be a growth area thanks to demographics, better technology, new laws and finite government resources. Canada now has more people over 65 than under 15 and we are living longer. That means more knee and hip replacements, aging issues such as Alzheimers and a new law that permits physician-assisted suicide. More and more Canadians will butt heads with a health system that won’t be able to deliver services in a timely fashion. There will likely be an increasing demand for health-care advocates to fight for their rights and a rise in private health services.

An aging population is only one aspect to health. Canada’s infertility rate is rising. As many as 16 per cent of couples cannot have babies, almost double the 1992 rate. Expect reproductive rights to play a bigger role as more couples, both straight and gay, seek to have children.

Leaps in reproduction technology, changes to laws governing surrogacy to accommodate gay male couples and the willingness of some provinces to fund treatments will spur further growth.

In vitro fertilization is now a global US$14-billion market and growing at 10 per cent a year, according to Grand View Research. These developments will increase the need for lawyers with experience in surrogacy and fertility agreements and will also likely spawn more negligence claims against fertility doctors and clinics, as well as fights over embryos in divorces and untimely deaths.

2. In terms of an aging population, legal advisors will be in demand to sort out issues related to wills and estates and the expected $750 billion that will transfer to the next generation in the coming decade, according to a 2016 CIBC report. CIBC notes that 2.5 million Canadians are over 75 and 45 per cent of those are already widowed. Any estates litigator can tell you that people get weird when their relatives die. Expect a rise in estate litigation.

3. Expect transportation law expertise to blossom as driverless cars, trucks and drones take to the roads and skies with greater frequency and companies deploy these technologies in their delivery systems and supply chains. The laws for much of this are still being written, but it will create demand for lawyers versed in the new rules. Litigators should also benefit, as accidents involving these technologies will need to be sorted out.

4. Technology and intellectual property will continue to open new doors and create demand for legal advice. The next wave involves artificial intelligence, robotics and blockchain technologies. These technologies raise a host of legal and ethical issues that will force governments to create new laws and regulations opening the doors for legal advisors.

5. One of the more interesting areas is privacy, spurred by recent developments involving the internet, fake news and the way social media companies track users and their data. It’s all pointing to the likelihood that we will see more government intervention in the way the internet is regulated. People’s personal information, such as their internet surfing habits or cellphone location data, is increasingly being monetized by companies, and consumers are now figuring that out. Whether that will be enough for consumers to change their behaviours and abandon free services, such as Google and Facebook, and spawn the growth of new social media players that share the wealth with consumers or offer to protect their private information remains to be seen. However, one thing is certain: Canada’s privacy and anti-spam laws are in their infancy and lawyers can expect many more developments on that front.

6. Expect the demand to increase for lawyers versed in cybersecurity issues. As more transactions are digitized, money moves with the click of a mouse and the Internet of Things links us all together, criminals will increasingly look to hack into those systems. Recent surveys of executives show that cybersecurity now ranks as one of the top concerns moving forward. We are in the early stages of what will likely be a cybercrime wave, as criminals and even foreign governments get more aggressive in their hacking and espionage efforts.

7. The future of employment lawyers also looks promising. Governments continue to layer on workplace regulation. Moreover, numerous studies about the future of work suggest we are entering an era where there will be a skills shortage, which will create more employee movement and spur legal activity. At the same time, automation will usurp low-end, repetitive tasks, likely leading to layoffs and firings. One area to watch is the rise of the gig economy, which features short-term contracts, independent, virtual and freelance workers. Randstad Canada calls it the “agile” workforce and notes that such “non-traditional” workers make up as much as 30 per cent of the workforce. As an increasing number of companies move to an “agile” workforce, it will spur the growth of things such as pooled pension plans that workers pay into over their careers. Disputes over what qualifies as an independent contractor will likely force governments to examine policies and create laws to protect this fast-growing part of the workforce.

8. Finally, in more than 30 years of writing about the legal business, I can honestly say I haven’t seen too many underemployed tax lawyers, and I don’t see that changing any time soon. Taxes are central to government revenues, and politicians have big appetites. Current fights over transfer pricing, which are now nine-figure disputes, shows how high the stakes are getting. Expect internet commerce to come under more tax scrutiny.

As the gap between the haves and have-nots increases, there are increasing calls by left-leaning think tanks to bring back inheritance taxes.

Moreover, many government tax departments have beefed up their investigation teams to stop tax leakage, which will lead to more litigation.

I could go on, but you get the point.

The global legal services business, which is estimated to grow to US$726 billion by 2019, is alive and well, and I think the future is bright for legal talent.

The big question, however, is where will those legal advisors work? Will it be companies, which continue to expand their in-house law departments, traditional external law firms, global consulting firms or some new form of entrant that uses technology to deliver rote services?

That, however, is a column for another day.

Jim Middlemiss is a principal at WebNewsManagement.com.