Canadian Bar Association (CBA) Legal Futures Initiative
Futures: Transforming the Delivery of Legal Services in Canada
A Professional Career Perspective
By John G. Kelly
B.Com., LL.B., M.Sc. (international relations) M.A. (Jud.Admin) F.CIS
Canadians expect and deserve a vibrant and relevant legal profession. …Our work confirms that there are many opportunities for lawyers to improve the way they serve those who now retain them and to meet the needs of underserved and completely unserved segments of the market — and in both cases, to do so in ways that better resonate with Canadians. Yet there are impediments to making the required changes. These include: the regulatory framework in which lawyers work; the lack of access by lawyers to business models that would support more innovative practices; and the skills and knowledge required to seize these opportunities.
How true! These opening comments in the “CBA Legal Futures Initiative” (Futures) final report succinctly capture the dilemma encompassing the Canadian legal profession. There is no question that there is a wealth of opportunities for professional services providers in an expansive professional services market. However, there’s also a growing sense of malaise within the legal profession. And so there should be! The report states that “Canadians seek legal advice for only 11.7% of justiciable events”. In short, the legal profession is being increasingly marginalized in the broader legal services market and needs to change.
“Futures” is a good starting point for a Canadian legal profession “that has been in large part, conservative in dealing with changes”
The composition of the “Futures” steering committee and its corresponding investigative teams provides an excellent illustration of how the CBA was cautious in going about its business.. “Futures”focuses on three key themes in its investigation. “Our strategy is organized around three key themes-innovation, regulation, and education”. A future’s focused investigation and report on these topical issues would ideally include a broad range of qualified participants who could inject the critical component of lateral thinking into the process. However, all of the 31 listed team members are lawyers, law professors or advisory personnel linked to law firms and law schools. The CBA played it safe.
“Futures” does compensate for this by engaging futurist Richard Susskind who’s cited as a special advisor. Susskind is well known for predicting that a combination of technology, legal technologists and new breeds of multi-disciplinary services providers such as knowledge engineers, legal analysts, legal support systems managers, legal project managers, etc. will fundamentally alter the design and delivery of legal services. “Futures” agrees and is supportive of broadening the regulatory umbrella to bring high -end service providers on board but stops short of embracing a self-regulatory regime for non-lawyers. “Non-lawyers will provide low-risk services under the supervision of lawyers and quality managers” This cautiously conservative recommendation feeds into the conventional mind set of the legal profession and encourages a buy-in. However, it conveniently ignores both Susskind and the reality of the emergent legal services market in which these non-lawyer service providers are very much alive and well absent any regulatory oversight of the legal profession.
”Futures” acknowledges that alternative business structures (ABS) are inevitable and suggests that the Canadian legal profession must and will embrace non-lawyer equity participation in law firms. However, again being cautiously conservative, it stops short of recommending that legal managers be accorded recognition as equal players in the ABS structure as is the case in the UK , the leader in ABS development. “Futures” would have benefited from having representation from senior members of the Association of Legal Administrators (ALA) as team members. Informed commentary on ABS architecture is lacking. Multi-disciplinary practices (MDPs) are also endorsed in principle but their noticeable absence as active participants in “Futures” results in a tepid and less than informed recommendation .
“Futures” brings a breath of fresh air into the self-regulatory debate by pointing out “the regulation of lawyers in Canada in 2014 follows a model that has not changed for generations. Many assumptions upon which it is based are no longer relevant or current”. As a first step in modifying the model “Futures”suggests that the composition of law societies be changed to provide for a governance structure in keeping with the public mood. Lawyers need to share governance with non- lawyers. Moreover, it acknowledges that the monopoly era must come to an end. “The Canadian regulatory framework should be liberalized accordingly (commensurate with that of the UK and Australia) to achieve similar benefits.” What would this liberalized self-regulatory framework look like?
Clients demand flexibility and choice in the delivery of legal services. For example, many are seeking a medical clinic model where other service providers work in conjunction with lawyers to provide targeted and as-needed services. The era of exclusive relationships with a lawyer sitting behind a mahogany desk administering expensive advice is coming to a close.
I commented at some length in a previous perspective on legal education and referred to the supportive comments in “Futures”on the need for a wholesale reinvention of legal education. But in light of the fact that in the course of “our consultations, the education and training of lawyers was one of the most intensely discussed issues” those comments warrant repeating. “Futures” recognizes the limits and limitations of Canadian law schools and, in this one instance, breaks out of its cautionary conservative approach by making the following stark statement in conjunction with acknowledging the need for the Canadian legal profession to embrace international legal education. “It will be difficult, expensive, and unnecessary for every law school to in Canada to provide the full breadth of legal education…. Law schools may wish to specialize in distinct pedagogical categories”
How is all of this to come about? Unlike the American Bar Association (ABA), it’s outspoken American counterpart , CBA “Futures”is cautiously conservative to the extreme in carving out a soft spot for itself in nudging the powers that be to get on with it. However, as the UK demonstrated in taking the lead in what is proving to be nothing short of a revolution in legal services, law societies refuse to budge with a nudge. High profile direct government action is required to reform the legal profession’s self-regulatory monopoly in the context of the 21stcentury public interest. The Province of Ontario is the proverbial “elephant in the room” among provincial regulators for law societies. The Law Society of Upper Canada (LSUC) takes considerable pride in being the originator of the self-regulatory monopoly model of law societies by lobbying the government to enact “An Act for better regulating the Practice of Law” in 1797. The model has been in place for 217 years. It’s well past due for a substantive re-enactment in a 21stcentury context. “Futures” needs to massaged into a strong message to Province of Ontario to bring the legal services market up to speed by taking the legislative lead in what is truly in the public interest.
New jobs are already emerging at the intersection of law and technology. In future, the following job descriptions will become increasingly common:
Knowledge Engineers build online legal advice systems and document drafting systems, and organize and represent legal knowledge within those systems.
Legal Process Analysts develop the architecture within law firms or organizations by which complex legal work is disaggregated and sourced through multiple providers.
Legal Support System Managers develop and deliver tools to clients to help them undertake their legal work, such as workflow systems, document management systems, and intranets for in-house departments.
Legal Project Managers formally bring the discipline of project management to the legal process of deals and disputes.
Online Dispute Resolution presents new roles for lawyers as e-advocates, e-arbitrators, e-neutrals, and e-mediators.
Legal Risk Managers provide new tools, techniques and systems for identifying, quantifying, monitoring, hedging, and reducing their clients’ legal risk.
Compliance Officers advise on regulatory compliance within industries that are subject to complex regulation.
Legal Management Consultants on a preventative basis offer advice on strategy and operations to large legal departments