Study questions access to justice benefits of ABS

With the debate on alternative business structures heating up, a University of Windsor Faculty of Law professor has prepared a study — commissioned by the Ontario Trial Lawyers Association — that questions one of the benefits touted by proponents: improved access to justice.

Jasminka Kalajdzic’s report shows a ‘dearth of empirical evidence’ that ABS improve access to justice.The association, which has come out against alternative business structures, asked Prof. Jasminka Kalajdzic to look at whether there’s any evidence from Britain and Australia that non-lawyer ownership of law firms improved access to justice.

“There is a dearth of empirical evidence to support any of the contentions made by proponents that [non-lawyer ownership] leads, directly or indirectly, to an increase in access to justice,” wrote Kalajdzic in the study released by the association today.

Kalajdzic looked at existing sources of information on the outcomes of non-lawyer ownership in Britain and Australia. She analyzed the issue from the perspective of access to justice, one of the benefits supporters have argued as a reason Canada should allow ABS, something several provincial law societies have begun considering.

One of the main gaps Kalajdzic found was the fact that significant areas of unmet legal need in Canada are in family and criminal law, a field the research suggests law firms owned by non-lawyers have been slow to enter.

“Criminal and family law problems were the two most serious types of problems identified by respondents in that survey,” wrote Kalajdzic, citing Ontario data on people’s civil legal needs.

Kalajdzic’s report also cited other research showing 70 per cent of family law litigants go without counsel because they can’t afford a lawyer, but when it comes to the alternative business structures in Britain and Australia, firms have largely focused on personal injury matters rather than family law.

“According to [publically traded law firm] Slater & Gordon’s 2014 Annual Report, over 80 per cent of its total revenue (in both the U.K. and Australia) is derived from personal injury work,” wrote Kalajdzic, with the remaining areas covering family, conveyancing, and wills and estates matters.

“Whatever economies of scale can be generated by large consumer firms as a result of alternative sources of capital, new technology, operational design and branding, the evidence to date shows that they are far more likely to occur in areas of practice than can be easily commoditized,” she added.

The association welcomed Kalajdzic’s report.

“Clearly, Prof. Kalajdzic underscores that the evidence in support of ABS is just not there,” said Charles Gluckstein, past president of the association.

Kalajdzic’s study did acknowledge evidence of some benefits of non-lawyer ownership outside of the access to justice question. They include increased economies of scale through, for example, using innovative technology. But, she added, that doesn’t necessarily mean cheaper services.

“While it is true that some ABS like Slater & Gordon have been successful in branding, using innovative technologies, achieving economies of scale, and increasing the number of personal injury claims, there is no data documenting a decrease in the cost of legal services or the rate of self-representation,” she wrote.

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