ABS D.O.A.? idk

Is the debate over Alternative Business Structures in the legal profession dead on arrival before it truly begins? I don’t know.

Among the most active participants in the current debate, things are hardly over. But from my perspective, the volume and passion of the opponents of ABS is such that much of the potential discussion risks foreclosure. If ya ain’t fer us (the opponents), yer agin’ us!

The opponents raise many valid concerns that warrant further exploration, most significantly the risk to the public interest if a lawyer’s duty to the client and her ethical obligations could be comprised by a non-lawyer shareholder interested solely in maximizing profit. But when this concern is laid down as a trump card to end debate rather than something to be examined, say, in light of how this differs in significance or scale from tension faced by in-house counsel or by the member of a 4000 lawyer international firm, we are entering “won’t somebody please think of the children” territory.

To be clear, I’m not looking to choose a side or win a debate here.

To be even clearer, I’m not suggesting that opponents have not included helpful guidance and suggestions in their largely well researched and well thought out papers on things the legal profession and legal regulators could be doing to improve access to justice, innovation and modernization. There is some good stuff in the CDLPA and OTLA papers.

What I am saying is we should be comfortable keeping the theoretical possibility of adopting some form of ABS as part of a discussion of how a legal regulator advances the cause of justice and the rule of law, facilitates access to justice and regulates the profession in the public interest.

Does the earth revolve around the sun or does the sun revolve around the earth?

In the Dialogue Concerning the Two Chief World Systems (Dialogo sopra i due massimi sistemi del mondo), Galileo explored the heretical Copernican idea that the earth revolves around the sun and contrasted it with the then accepted view that the sun revolved around the earth. In the present debate, ABS seems to be taking on the role of the earth, and much of the conversation presupposes that its locus is it at the centre of the universe. I hope this is only temporary and a consequence of the fact that the impetus for the present debate (at least in Ontario) is the September 2014 Law Society of Upper Canada consultation documentthat introduced a few possible ABS models and offered an indication why it was being considered:

The Law Society is considering the ABS model in light of several factors, including apparent gaps in the provision of legal services, the increasing globalization of the legal profession, and advances in technology and developments abroad, that significantly affect how legal services can be delivered.

On one hand, it’s unsurprising that the ABS models of non-lawyer ownership occupy the centre of the debate because that’s precisely the point of the consultation. On the other hand, and this appears to be well understood by participants, the motivation for even initiating the debate is due to a variety of factors, both internal (law society mandate concerning facilitating access to justice) and external (gaps in access, globalization, technology, etc…). These factors, I submit to you, belong at the centre of this universe and, in fact, were placed in precisely that spot by the Law Society.

I’ve read the Law Society reports (Interim Report to Convocation – June 2013, Report to Convocation – February 2014, Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper – September 2014) and I’ve listened to their pronouncements on anticipated further process. What I read and hear is evidence of a slow, methodical and broad-based approach to information gathering structured to develop an understanding of the issues, while seeking to remain open to all inputs. In light of the coming Bencher election, it’s unlikely the Law Society leadership will even be in a position to absorb what it receives and formulate ideas before the end of 2015. Pushing to 2016 the window in which the responsible committee can develop recommendations, and then possibly into 2017 the point at which the full Convocation can adopt recommendations…which will then be put back to the membership for further consultation in late 2017 (at the earliest) or even 2018. Ultimately allow for implementation by 2019…or roughly around the time Ontario lawyers start thinking about the next Bencher election.

Why on earth (wherever it is positioned in our universe) would we want to shut down all thinking about ABS in early 2015??

The approach and realistic timing of Law Society review suggests that no one there is in a rush to force the profession down an uncharted path or to place ABS at the centre of its efforts to carry out its full mandate. Even the greatest proponents of moving quickly to new business approaches in either the Australian or U.K. models must certainly understand the long horizon of review that will come before any change occurs.

Get comfortable with a range of possibilities

Zealous advocacy is a hallmark of our profession and I have no desire to recommend that anyone temper their arguments for or against what they believe is necessary and right. But another amazing quality we possess as lawyers is our ability to argue “in the alternative”.

This is what I’d invite you to do to keep this debate alive and to ensure that legal regulators (whether in Ontario or elsewhere) have the information they need to understand the issues and to make the right judgments in the public interest.

Need some suggestions? Start by looking at the CBA Futures Report on “Transforming the Delivery of Legal Services in Canada” and come up with the regulatory rules and guidance you consider necessary if anything other than absolute prohibition of ABS comes to pass. Maybe something like this:

In the alternative, if ABS models are permitted:

  • the law society may need to regulate entities and not just lawyers
  • the law society may need to clarify lawyer obligations concerning duties and scope engagements with non-lawyer partners/shareholders/owners
  • the law society may need to ensure inter-jurisdictional regulatory consistency across Canada and elsewhere
  • etc….

In closing, all I ask is that we all keep the debate wide and alive.

Won’t somebody please think of the children?

* * * * *

Originally posted on Slaw.ca


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