Morley Law Office

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New Ways to Practice Law are Coming

HERE IN ONTARIO the practice of law is restricted within relatively narrow and traditional parametres.  To provide legal services one must be a lawyer or paralegal licensed by the Law Society of Upper Canada, our regulatory body.  Those who are licensed may only provide legal services, or services that support or supplement legal services, in their practice.

The business structures currently available to licensed legal professionals here include sole proprietorship, partnership, limited liability partnership, professional corporations or multidisciplinary practices.  The last of these must be controlled by licensed legal professional and may only offer services that support or supplement legal services.  Fee sharing between licensed legal practitioners and those who are not licensed is only allowed in multi-disciplinary practices and inter-jurisdictional firms.

A change may be coming, however.  It is driven in large part by the changing needs and expectations of the persons who hire us, who are increasingly demanding better, smarter, faster and cheaper service, and clearly expressing their interest in being more involved with and connected to their lawyer than previously.  Perversely, at the same time, as is evident in courtrooms throughout the province, more and more Ontarians are finding it impossible to access legal services, generally because they cannot afford them.  Our clients want more from us, but they cannot afford the services which we are giving them now, at least in the manner in which we are currently delivering those services.

With increasing complaints about what is perceived to be the high cost of litigation and about the number of self-represented litigants, institutional stakeholders in the courts and in the legal services sector are considering a range of options to provide better access to justice, including the development of alternative business structures.  Our Law Society is no exception.  It set up a working group to explore ABS in the fall of 2012.  British Columbia published its report on the subject three years ago, and Nova Scotia, Manitoba, Alberta and Saskatchewan are also exploring these new service-delivery concepts.

On the table in the consideration of ABS options are new services, new service delivery mechanisms, alternative fee arrangements, the participation of non-lawyers in the ownership and management of law firms, and new legal disciplines, amongst other ideas.  Given the potential for a radical transformation in the delivery of legal services if these concepts and implemented, their implications for legal regulation and education will need to be addressed.  In addition, all of us who practice law will need to come to grips with practicing law in a very different way.

Alternative business structures are not merely theoretical constructs or flights of fancy ; increasingly, they are a reality.

Since 2000 New South Wales, Australia has permitted regular incorporation of law practices without restricting who may own shares of the legal corporation or what type of business may be carried on.  The state’s Legal Profession Act provides that legal service professionals may register as a company with the Australian Securities and Investments Commission, the body that ensures compliance with the country’s corporation statute. There are now law firms in Australia listed on the country’s stock exchange.

In the United Kingdom the Legal Services Act 2007 has expanded the objectives of legal services regulation, which were formerly restricted to serving the public interest and improving access to justice.  Now they include the protection and promotion of consumer interests and competition.  As a consequence, new forms of legal business are taking shape.  For instance, in Britain there is now a law firm with a background in fertility law that offers not only legal services, but related services such as donor conception and adoption.

In the United States the District of Columbia permits limited non-lawyer ownership and management of law firms.  In some places, the provision of services by non-lawyers has expanded.  Washington State, for instance, has authorized some paralegals to assist civil litigants with tasks formerly done by lawyers and their staff members.  Also, new ways of delivering legal services have been developed by companies live LegalZoomRocket Lawyer and Axiom.

In a presentation I hosted recently, former and current Law Society officials spoke about the future for ABS in Ontario.  We were advised that the Law Society has not decided whether or not alternative business structures such as those described above will be permitted in Ontario, but that it is still seeking input respecting their implications.  We were told that these new business structures may be seen as an opportunity for us to provide new services and broaden our client base, and it was posited that if we are proactive we will not only be able to survive but to thrive in an ABS environment.  For that to happen, we were advised, we will have to be more flexible and embrace the opportunities that come with ABS.  One message came through clearly: ignoring these trends will be done at our peril.

You can learn more about alternative business structures from the Law Society of Upper Canada’s discussion paper Alternative Business Structures and the Legal Profession in Ontario and the Canadian Bar Association’s report on the subject: Futures: Transforming the Delivery of Legal Services in Canada.

You Spin the Wheel

ACCORDING TO  POLICE OFFICERS, motorist Matthew Duncan resisted arrest.  Was a crime actually committed?  Mr. Duncan said “no”, and made his case forcefully, first, to the officers; and then to the Ontario Court of Justice, before which he represented himself.  In the entertaining judgment of Justice Fergus ODonnell in R v. Duncan the issue of guilt or innocence is resolved, after a long journey through what the court referred to as a “hodgepodge of irrelevancies”.

Mr. Duncan’s problems began when, during the early morning hours, he turned his car into the parking lot of his apartment building without first signaling his intention to do so.  Unfortunately for him police officers witnessed the alleged transgression, and requested that Mr. Duncan identify himself.  Thereafter the stories of the officers and Mr. Duncan diverge, with the former maintaining that no identification was provided, that warnings were given, that an arrest was attempted, and that resistance was presented; and with the latter denying the allegations.

The proceedings at court were described by Justice ODonnell in Alice-in-Wonderland terms.  Given that Mr. Duncan raised a host of jurisdictional issues, all of which were found to be meaningless, what could have been a quick trial was not completed at the end of the first day.  The judgment makes clear that this was a waste of everyone’s time, and Justice ODonnell notes with amused frustration what he characterized as the case’s “slight detour through territory that might have confused Lewis Carroll”.

Mercifully, despite Mr. Duncan’s presentation, the Court determined that the charge should be dismissed, not because of the jurisdictional issues that Mr. Duncan had exhaustively presented, but because there was no legal basis for the underlying arrest.  The court found that there was no need to have signalled a turn because of the absence of traffic in the vicinity at the time of the incident and therefore, as there was no basis for the arrest, Mr. Duncan was entitled to resist it.

It seems that, in his verbal perambulations, Mr. Duncan “momentarily hit upon the concept that would ulimately lead to his acquittal”.  In describing the proceedings, the Court referred to the old adage about a room full of monkeys typing on a room full of typewriters from which is eventually produced the great Canadian novel.  Justice ODonnell was careful, however, to explain that Mr. Duncan, who was described as a “rather pleasant young man” was not actually being likened to a monkey.

An experienced criminal lawyer might have negotiated the same or a better resolution to this matter early on, without the need of a trial.  Had one been retained, a lot of time and energy invested in the proceedings could have devoted to more useful pursuits, not only by Mr. Duncan, but also by the Court, court staff and the prosecutor.  In the end, while this case turned out well for Mr. Duncan, it should be noted that he had the prospect of the court proceedings hanging over his head for a protracted period both pending the trial and its resumption on a second day, and that he would appear to have missed at least two days of work to attend it.  Still, most self-represented litigants do not fare so well as he did.

Last spring a report on the subject of the “doing it yourself” was released by Dr. Julie Macfarlane, a lawyer and professor at the University of Windsor’s law school.  It concluded that there were a “range of negative consequences experienced” by the self-represented litigant:

These include depletion of personal funds and savings for other purposes, instability or loss of employment caused by the amount of time required to manage their legal case themselves, social and emotional isolation from friends and family as the case becomes increasingly complex and overwhelming, and a myriad of health issues both physical and emotionally.  The scale and frequency of these individually experienced consequences represent a social problem on a scale that requires recognition and attention.  The costs are as yet unknown.

To these consequences of not retaining counsel might be added another: the absence of legal analysis and context in the presentation of the case can cause the justice of the self-represented litigant’s position to be obscured or missed altogether.  In other words, their case may not be heard.

Self-representation is growing in the courts and before administrative tribunals, to the exasperation of judges and opposing counsel who must try to be fair even though they may be unable to understand the direction, the relevancy or even the nature of the argument being advanced.  Retaining counsel to make one’s argument is rarely inexpensive, but it has the virtue of allowing litigants to effectively participate in the proceeding.  Often a settlement-oriented approach, informed by a knowledge of the relevant law, can not only allow one’s story to be properly heard, but save time and money as well.

Still, despite its problems, self-representation has been actively promoted by Citizenship and Immigration Canada in documentary proceedings, such as those involving skilled worker or sponsorship applications.  Sometimes, as was the case for Mr. Duncan, things may work out in the end.  In other cases they do not, serious injustices are done, and the damages to families and futures becomes permanent.  When you represent yourself, you spin the wheel, and you take your chances.