Tag: law

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L21C Book Club: The Citadel

In my non-work time, I’ve been re-reading a novel that I first read many years ago: The Citadel by A.J. Cronin. The Citadel was published in 1937. It was made into a film in the 1930s, and adapted for television several times, most recently in the 1980s.  The Citadel was once a very famous book, but it seems to have faded out of consciousness these days.  I hadn’t thought about it for ages, then I saw it mentioned somewhere by chance and thought “I’d like to read that again.”

I’m glad I did.  It’s a good read.  But more importantly – and the reason for doing a blog post about this book – it turns out that this is a fascinating to read from my point of view now, as a someone who’s part of a profession undergoing great change and examination of its own purpose, ethics, and place in society.

A.J. Cronin was a doctor.  His novel is about a doctor, his fictional alter ego Dr. Andrew Manson.  At the beginning of the novel, Dr. Manson, an idealistic and principled young medical school graduate, arrives in a remote Welsh mining town for his first job.

Andrew Manson works to heal the struggling, proud coal miners and their families.  He gets challenging diagnostic cases and he is brilliant at solving them.  He encounters public health problems – typhoid from a leaking sewer, lung disease from anthracite dust – and he works hard to understand the root causes and solve them, even to the point of taking radical action.  In a memorable scene, he and a friend clandestinely blow up a leaking sewer to force the authorities to fix it.  He is hampered by bureaucratic indifference, and by the ignorance and outdated approaches of some of his fellow doctors.  He doesn’t make much money.  He’s also a bit of a hothead and a prig.  Cronin was too good a writer to make his protagonist an insufferable saint.

Later in the novel, Andrew is seduced by opportunities to make more money and live like his more prosperous doctor friends, who find rich patients and charge them silly money for largely useless treatments.  He becomes, in conventional terms, successful. Cronin portrays this change as a loss of his soul.  And what happens next … you’ll have to read it to find out.

There were many points in the novel that had a new kind of resonance for me, reading it again after years in the legal profession and teaching law.

For example:

  • When Andrew first goes out to practice and work on real cases, the things he learned in the lecture hall at medical school seem like they are from another world.
  • His professional choices are dominated by the tension between personal success and prosperity, on the one hand, and the ideals of his profession and his idealistic desire to serve the public good, on the other. Cronin depicted Andrew’s attraction to material success as a kind of ethical failure, but he didn’t mean it as an indictment of his protagonist as an individual.  He saw the medical system of his time as inevitably (systemically) producing such moral failure.  He said of The Citadel: “I have written … all I feel about the medical profession, its injustices, its hide-bound unscientific stubbornness, its humbug … This is not an attack against individuals, but against a system.”
  • Andrew has virtually no power and no route to dealing with what causes patients to be ill – malnourishment, bad sanitation, dangerous working conditions. All he and other doctors can do is patch things up when people become ill.  They are ambulances at the bottom of the cliff, not a fence at the top of the cliff.

The Citadel was written before there was a National Health Service in the UK.  All doctors were, essentially, small businessmen (they were indeed mostly men).  Every decision about taking a patient necessarily involved a calculation about profit and financial viability, and could not be based solely on the patient’s need or the complexity of the case.

One thing that is fascinating to me about The Citadel, a twentieth-century book, is that these dilemmas are so similar to the ones faced by medical characters in nineteenth-century literature. There are great fictional doctors of previous generations caught in the same conflict between idealism and material success, like George Eliot’s Dr. Lydgate (one of my favourite fictional characters of all time).  I don’t think the central dilemmas for doctors, or their fictional representations, are typically like that now.  But … they still kind of are for lawyers.

The National Health Service was created after the Second World War, in 1948.  The Citadel’s powerful indictment of the ethics of profit-driven medicine is thought to have helped lay the foundation for the creation of the NHS.

This is a fascinating tale for lawyers going through self-examination about their role as professionals, and reflecting on the systemic strengths and weaknesses of our profession.  I recommend it to any L21C partners who have a bit of time for novel-reading after exams are over.  The gender and racial attitudes are … no better than you’d expect from a book published in the 1930s.  But if you can overlook a handful of cringe-making moments of that sort, it’s a book full of humanity and insight, especially for twenty-first century professionals in the process of shaping their professional identities.  It has a lot to say to us.

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Promoting In-Firm Diversity and Equality

It has often been said that a major problem in law firms is the inequality of representation within them. Law firms are traditionally dominated by white males, and partnership is often the exclusive domain of the senior white male. Many firms will adopt hiring policies with the view to promote more diversity within the workplace.  However, these policies rarely have the desired result, as over time many of the female or minority lawyers move on and the status quo remains.

In my opinion a few of the keys to maintaining diversity within a firm are relationship building, and retention strategies. It is all well and good to have a policy in place to promote diversity when hiring individuals, but if they do not stick around and work their way up in the firm these strategies cannot be seen as functional. A major component of keeping people around is in the environment that is created and the relationships that are built after those individuals are hired. If the senior associates and partners of the firm are not open, welcoming, and evenly distributing the quality work amongst a diverse group of articling students and junior associates there will likely be a disconnect between those parties who are not getting equal treatment. The more established lawyers within the firm must also be sure to make a concerted effort to avoid falling back into the traditional cycles and following the biases that have perpetuated the status quo. A firm must be sure to maintain this type of equal-opportunity working environment as much as possible to establish the relationships required to keep this diverse group of young lawyers happy and productive. If people begin to feel like they are not getting equal treatment they will likely begin to feel unappreciated, and begin to look for other opportunities. However, if they are getting the quality work and building strong relationships they will be more likely to stick around and become productive team members.

In conjunction with the building of relationships firms must also have strong retention strategies. Certainly some, if not all, of the items mentioned above will also play a role in such strategies. On top of building relationships and making young lawyers feel like valued members of the team, the firm must also have a plan for keeping those parties around for the long term. A number of things can make up this plan, and again can include much of the items noted previously. For instance with younger employees a retention strategy could involve incorporating some form of flexibility in their future with the firm in the event that they would like to start a family. As most people know having a young family can make it difficult to be in the office full time. Therefore thinking ahead and creating a flexible face-time policy can be effective in retaining those young lawyers as well as building a respectful and open working environment moving forward. A similar policy can also be used as more senior lawyers age, and hope to wind down their practices. It may be that these types of retention strategies can even help junior and senior lawyers build their relationships through a time-sharing type of system that maintains the flexibility that they desire while continuing to be productive. These relationships can also create significant learning opportunities for those young lawyers that choose to share time with senior associates and partners. Overall these types of policies can allow for the flexibility that is required to raise young families or transition towards retirement while still providing a meaningful contribution to the working environment. They can also promote the building of strong relationships and loyalty within the firm.

Although these suggestions are not a complete answer to the diversity and inequality issues that are currently at play in the legal community, they are certainly a step in the right direction. If firms can establish the type of environment that a young and diverse group of lawyers want to be a part of for the long-term they will go a long way to having their hiring strategies create truly diverse firms, as opposed to being merely hiring strategies without achieving true long-run effectiveness.

 

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The End, and Future, of the Rural Lawyer.

rural

The end of the rural lawyer is, thankfully, in sight.

I should start by saying that it is not from any personal prejudice against those who practice in rural areas that I use “thankfully”. Rather, it is an expression of the relief law students must feel as the idea of practicing in a rural area is, apparently, unappealing to the vast majority of law students. Indeed, it seems to have been for some time now. A quick search finds numerous articles lamenting the lack of enthusiasm amongst potential articling students from  2012, 2014 and even to this day in 2016. As an increasing number of rural lawyers reach the age of retirement, the lack of replacements for them spells a slow end to the rural lawyer.

Yet there is still a pressing need for rural law.

It is self evident that geographical location does not eliminate the legal issues that arise for an individual. So what replaces the future rural lawyer?

Imagine sitting in your office in Tofino, BC – a town of 1,900 –  waiting for your client. They arrive promptly, and you greet them warmly. Offering them a seat, you walk them through your intake forms, deal with their questions, provide reassurance about their concerns and then see them to the door with a friendly smile and a handshake. As they leave, you take a moment to collect yourself before returning to your desk. A desk which is physically located in downtown Victoria.

A wistful dream, or a future closer than you might imagine?

Two recent trends provide good reason for hope for the provision of legal services to rural communities, and neither relies on reversing the trend of students preference for larger cities.

First, the ever increasing rise of rural internet connectivity. More and more small towns are opting to become their own Internet Service Providers. These towns install fibre-optic connections for their entire population. For $57 a month, they can receive speeds of 1,000 megabits. By comparison, Kamloops currently tops out at 150 megabits for $80 a month. The capacity of these networks to allow for increasingly large videos and images to be transferred is just barely beginning to be utilized. Even those that don’t are benefiting from Government initiatives aimed at providing high speed internet to rural communities.

Second, with the launch of Virtual Reality (“VR”) hardware. The recent launch of the consumer models of the Oculus Rift and HTC Vive have brought a high quality experience to the early adopter market. Currently, video games make the most use of these VR devices but the exploitation of VR is just beginning. At Virginia Tech they have created a virtual reality room [worth the watch!], which can be shared between several individuals. Each sees the exact same thing, and can see each other. Within the room, there is virtually no limit to what they may experience together.

The rural lawyer of the future? Well, they need not be rural at all.

With the right amount of bandwidth, this room could be shared with any other room (and any other participant) at any range. So not only can that office in Tofino be used by a lawyer in Victoria, but also one from Vancouver, Calgary or Toronto. Indeed, multiple lawyers could share (at different times) the same office in a small town, bringing a diverse range of experience and knowledge to small towns throughout Canada. Furthermore, the VR room is able to replicate any setting. So your client meetings could happen in a professional office, a farmhouse kitchen or on the beaches of Bali! You could tailor the office to each client, and locale, without any additional cost. Even if cost prevents the implementation of a VR room in every single small town in Canada to begin with, the VR rooms could easily become enough in local hub communities so as to improve access to professionals (such as lawyers, doctors or engineers) for hundreds of thousands of rural clients.

So in short, rejoice – the demise of the rural lawyer is nigh and the as for the future? Well it has never been brighter for rural law.

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Transitions

Let me give you an image of me as a starting-out lawyer.  I’m on the phone with a client – a terrifying proposition in itself.  Client is talking about something incomprehensible (some Wall Street acronym or something) and assuming I not only know what it is but have an informed and expert opinion about the thing as it relates to the client.  I am googling this thing while on the phone, hoping the client can’t hear me typing.

Transitioning to law school to practice was like that.

One of the reasons L21C exists is that I wanted to try to fill what I think is a gap in legal education in preparing students for this transition, from law student to professional.  Law school does not provide students with much understanding of or information about the practicalities of practice, or about what the ecosystem of the legal services world is like.  It’s a big chasm indeed from pondering the significance of peppercorns to billing, spreadsheets, attempting to tame clients, navigating the internal politics and ego-bruises of working in multiple teams, and googling financial jargon as quietly as possible.

I often hear that it’s not an appropriate goal for law school to prepare students to be “practice-ready,” that there is no substitute for real-world experience and hands-on training.   As far as it goes, I think this is true, even just obvious.  It doesn’t follow, though, that law school can’t do more to prepare students for the transition to practice.  We can, and we should.

That’s the aspiration of L21C: to make students, if not “practice-ready,” at least a bit more ready for the challenges, surprises and mysteries of the coming transition to practice.  To demystify the mysteries, make at least some of the surprises less surprising, and, I hope, stir up some excitement about the challenges.

L21C is also transitioning this year.  Last year it was a completely brand-new course, still a prototype really, and I really was not sure what to expect.  This year is … well, honestly not that different, but it’s no longer completely brand new and I have a little bit more idea what to expect.  Last year’s class was a fantastic group who did some truly inspirational work.  Therefore, my expectations are very high.  I’m looking forward to equally great things from this year’s group, possibly even greater.  Go on, challenge yourselves!

The design of the course is substantially the same as it was last year, but there are some modifications.  The first few weeks are more structured, with fewer guest speakers and more lectures and activities that I planned.  In the later weeks we have many really amazing guest speakers, a panel, a field trip to Kamloops Innovation Centre, and plenty of time built in for teams to work on their LawHacks projects.  The idea is that in the first part of the semester students will get a solid understanding, from the lectures, readings and class activities, of the themes we are covering, and in the later part of the semester the group will be very well equipped to engage with the wonderful leaders and thinkers who are joining us as guests.

Of course I can’t end a post about transitions without mentioning the central focus of this course, the Big Transition: what’s happening to the profession itself.

Richard and Daniel Susskind, the authors of one of our course books (The Future of the Professions), say that the legal world “will change more radically over the next two decades than over the last two centuries” and the legal profession is “on the brink of unprecedented upheaval” (pp. 66-67, internal citations omitted).

Jordan Furlong, writing in the Canadian Bar Association Legal Futures Initiative publication Do Law Differently: Futures for Young Lawyers – another of our course texts – says “[a]lmost everything about career choices and employment options for new lawyers is in flux,” and that the generation of lawyers entering practice now “has both an obligation and an opportunity that its predecessors never experienced.”

David Scott, the co-chair of Borden Ladner Gervais, has said that the lack of access to justice for ordinary people is the legal profession’s equivalent of global warming.

These are the big, systemic transitions that we are going to learn, think and share ideas about in the course.  I hope that the discussion will carry on outside class – and will engage the wider community.  That’s what the blog is for, and I’m really excited to read posts and comments by our new class of L21C partners, as well as everyone else who wants to join the conversation.

This time of year people often say that September, not January is the real new year.  It’s a time of transitions.  Here we go!

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Showcasing Student Writing Part II: Alternative Business Structures

Here is the second winner of the class votes for best memo – this time, on the very hot topic of alternative business structures for legal service providers.  Please note: this is not legal advice!

L21C LAW OFFICE

____________________________________________________

AKKORN                                                                                                            900 McGill Road

Kamloops, BC

V2C 0C8

File No. 00005

November 5, 2015

Gater & Slordon Inc.

999 Kangaroo Street

Sydney, NSW

1234

firm@gatorslordon.com

RE:      Ownership Structures for Legal Service Providers

 

Dear Sirs and Madams,

This memo is to advise about Gater & Slordon’s (“G&S”) expansion into the market in British Columbia (“BC”) with respect to the regulation of legal service providers, the potential for changes or reforms to the existing model, and the implications for your business model.

G&S’s current model is not permitted in BC and, to operate, G&S would need to alter their structure by either becoming a law firm (corporation or limited liability partnership) or a multi-disciplinary practice.

Forms of ownership structure currently permitted for legal service providers in BC

Like many other Canadian jurisdictions, BC approaches legal services under a traditional model; the ownership of law firms, whether partnerships or corporations, is restricted to lawyers.[1] Alternative business structures (“ABS”) are a new legal paradigm that allows non-lawyers to own law firms. Currently, every province in Canada prohibits ABS. In BC, these structures are barred under the Legal Profession Act as per ss. 81(4) and 82(1).[2] However, BC allows for multi-disciplinary practices (“MDP”), which are partnerships between legal practitioners and non-legal practitioners who provide legal services.[3] The Law Society of British Columbia (“LSBC”) allows MDPs under Rules 2-38 – 2-49. These structures allow for non-lawyer ownership but prohibit law firms from being publicly traded or to pursue business that does not provide legal services.[4] To become a MDP in BC there is an application process that specifies “the non-lawyer partner provides no services to the public except those that support or supplement the practice of law under the supervision of a lawyer”.[5] Although MDPs are permitted in BC, it appears very few have emerged.

Significant proposals to reform or liberalize business structures for legal service providers in BC

The LSBC commissioned a committee in 2011 to discuss the suitability of ABS in BC. The committee’s report made the following recommendations:[6]

  1. Outside ownership involvement in law firms should be allowed provided it is properly regulated and lawyers remain in control of the provision of legal services offered by the ABS. Further limits should be placed on outside ownership in accordance with the core values of the profession.
  2. The public sale of shares of law firms on the securities market should not be allowed as the risks associated outweigh the benefits.
  3. The stated benefits of ABS are “very” speculative and specific proposals should not be developed at this time.

Reform in Other Jurisdictions

The Australian province of New South Wales has permitted ABS since 2001.[7] Other Australian jurisdictions allow Incorporated Legal Practices (“ILP”). These enable lawyers to work in tandem with other professionals to provide services subject to adherence with certain standards; furthermore, non-lawyers can invest in ILPs and the businesses may sell shares on the Australian stock exchange[8]. The LSBC, in the 2011 committee report, mentions the Australian experience and notes that empirical data is not available to assess the benefits of ABS to the public.[9]

In addition, England and Wales permit ABS pursuant to the Legal Services Act 2007.[10] The rationale for allowing ABS is that it increases access to finance for service providers and that increased competition leads to innovation and price decreases for consumers. Like the Australian model, the new rules allow for non-lawyers to be in professional, managerial, or ownership roles.[11]

The American Bar Association (“ABA”) has expressed a much more conservative view on ABS. No US jurisdiction permits ABS except the District of Columbia.[12] The ABA is unadventurous on this issue; in 2011 the ABA voted to circulate a proposed rule change that would allow law firms to include non-lawyers in minority ownership roles.[13]

Likelihood of BC adopting ABS

The initial impression is that it is unlikely that BC will adopt ABS in the immediate future. Some challenges that need to be addressed are the issue of profit sharing and ethical obligations of lawyers to the public and justice system. However, if proper ethical and securities reporting mechanisms are enacted, an ABS model may become more realistic.

Earning a profit is not an adverse goal of the legal profession; however, it is something that detracts from the role of being an officer of the court. The ultimate duty to the client, the state, and the courts is enshrined in the Code of Professional Conduct under Chapter 2.1.[14] Access to justice is at the forefront of many legal discussions and allowing non-lawyers to profit may appear to take away from the justice system. In allowing the use of MDPs, it may be that the LSBC is testing whether or not the ABS is a viable option for BC.

It will be necessary for G&S to demonstrate that their entrance into the BC market will place an emphasis on legal service ahead of profits. This is a concern that the client may want to heed when determining the business model they wish to establish in BC. The conversation on ABS in BC has cooled down since 2011; therefore, there is room to push the conversation over the concern of profits versus the legal duty, which can be addressed by the use of a securities regulator for ABS.

Being required to report to a securities regulator, G&S will provide some form of accountability to the Regulator. [15] In turn, this can provide greater detail to both the LSBC and clients on the operation of the firm. This may bridge the gap between profitability and the legal duty to the client. Having public reports on its financial situation can allow greater scrutiny on the value for cost ratio that many clients view services through, forcing firms to ensure that their clients get the best value for their dollar. The self-reflection that some firms may go through when becoming publicly traded could encourage the re-evaluation of the service by focusing on the most efficient method of addressing the needs of the client.

Conclusion

The ABS experience in Australia appears to be a positive development.[16] It is possible that BC will adopt ABS, and possibly the rest of Canada, once legal regulators develop core principles that a self-regulating model can adhere to.

It is recommended that G&S alter their model to conform with current standards for BC if they wish to enter the market sooner rather than later. Transitioning to their Australian model once the LSBC approves the use of ABS will be easier if it is already established in the marketplace.

Moreover, G&S would benefit from maintaining their reporting habits from Australia.[17] This will demonstrate the willingness to maintain transparency and accountability to the LSBC and serve to further ease the transition to an ABS should the LSBC agree that an ABS could help fill the gap in the provision of legal services.

 

[1] Legal Profession Act, SBC 1998, c. 9, s. 81 (4); Legal Profession Act, SBC 1998, c. 9, s. 82.

[2] Ibid.

[3] Legal Services Commission, “What are ILPs/MDPs“, (11 November 2013) online: <https://www.lsc.qld.gov.au/compliance/incorporated-legal-practices/what-are-ilps-mdps>.

[4] Dave Bilinsky, “Multi-disciplinary practice” (23 September 2015), Practice Tips (bulletin), online:< https://www.lawsociety.bc.ca/page.cfm?cid=2111>.

[5] Ibid.

[6] Independence and Self-Governance Advisory Committee, Alternative Business Structures in the Legal Profession: Preliminary Discussions and Recommendations (Vancouver: The Law Society of British Columbia, 2011) at 22.

[7] Ibid at 5.

[8] Ibid at 10.

[9] Ibid.

[10] Ibid at 6.

[11] Ibid.

[12] American Bar Association, Issues Paper Concerning Alternative Business Structures at 3

http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/abs_issues_paper.authcheckdam.pdf

[13] Ibid at 9.

[14] Law Society of British Columbia, Code of Professional Conduct for BC at 2.1.

[15] Loughrey, J., “Accountability and the Regulation of the Large Law Firm Lawyer”, (2014) 77 Modern Law Review 5, 732-762, at 749.

[16] What is interesting to note is that by 2011 the Law Council of Australia commented that state level legal services commissioners reported higher professional standards from alternative business models than firms still organized in the more traditional approach. See:

Alexander Ward, “Alternative Business Structures” (Address to Council of the Law Society of England and Wales delivered on 4 October 2011, http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/speeches/20111004LawSocietyofEnglandandWalesSpeech.pdf) at 4.

[17] See: Steve Mark & Molly Hutcherson, “New Structures for Legal Practices and the Challenges they bring for Regulators” (Paper delivered at the 14th Commonwealth Law Conference 2005, September 2005, http://www.olsc.nsw.gov.au/Documents/new_structures_legal_practice_challenges.pdf) at 7-8.

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Showcasing Student Writing: BC’s Civil Resolution Tribunal

L21C has been an unconventional course in many ways, but the students (partners) did do one pretty traditional assignment: a good old legal memo.  There were a couple of twists, though: the memos were written collaboratively by the student groups, and they were also set up as work product for a client on which all the time had to be tracked and billed using Clio.

All the L21C partners reviewed and commented on one another’s memos, and finally voted on which memo was the best on each of the two assigned topics.

Here is one of the winners: a memo outlining how BC’s new Civil Resolution Tribunal works, from the point of view of a poverty law clinic looking at how this new initiative can enhance access to justice.  For the purpose of this assignment, the (fictional) clinic was the firm’s client, seeking advice on its options for setting up a new consumer law clinic using the Civil Resolution Tribunal – an artificial set-up, but not completely outlandish, as it is not hard to imagine a law firm helping out a clinic on a pro bono basis with this kind of analysis.  As we learned from guest speaker Lawrence Alexander, consumer problems are among the most common legal difficulties people need help with.  And the CRT is supposed to make it easier, faster and cheaper to deal with these small-claims disputes, compared with going to court.

The memo follows.  (Please note that this isn’t legal advice!)

 

November 4, 2015

To: Street Legal Services

Re: Creation of a New Consumer Protection Clinic

The purpose of this memo is to advise Street Legal on the creation of a new consumer claims clinic through the Civil Resolution Tribunal. Following a summary this memo will look at (a) key relevant legal provisions, (b) a proposed structure and (c) ways to maximize access to justice.

 

Summary

The new clinic cannot advise clients on constitutional questions or human rights violations as the tribunal lacks jurisdiction to deal with these matters. Further, before agreeing to represent the client the clinic must ensure that the client is not engaged in litigation on the same matter. Unless a client has impaired capacity or is a minor the client is expected to represent themselves before the tribunal. Where the client is a minor or impaired a lawyer (not a law student) may represent the client before the tribunal. Further, a lawyer must be available to supervise the activities of non-lawyers, the degree of which to be determined by the clinics staff.

The structure of the clinic will be divided into two tiers: case management phase and tribunal-hearing phase. A minimum of two lawyers will oversee operations of each tier. Under the first phase, a student and lawyer will assess the client’s case and based on complexity determine how the file will be handled. If the client’s file progresses to the second tier the client will be prepared for the hearing.

To promote access to justice, it is recommended that the clinic be open twice per week (one weekday and one day each weekend) for appointments and drop-ins. For flexibility purposes, clients may have the option of scheduling an appointment outside of the regular hours. Visible minorities will be given priority. To encourage education on the issues associated with consumer protection it is recommended that the clinic provide free seminars to educate students and lawyers.

A. Legal Provisions

In starting the new clinical program Street Legal must refer to the Civil Resolution Tribunals Act[1] and the Law Society of British Columbia’s Code of Professional Conduct.[2]

The Civil Resolution Tribunal has specific rules on the types of cases it will hear. The tribunal does not have jurisdiction to hear constitutional questions (including Canadian Charter of Rights and Freedoms[3] questions) or questions on conflict between the Human Rights Code[4] and another enactment.[5] It is imperative that the clinic takes cases that conform to these rules. Additionally, a party cannot request a tribunal resolution if they are party to a court proceeding on the same matter.[6] The clinic must ensure that no clients are engaged in litigation before agreeing to advise them for a tribunal hearing.

It is expected that the party will represent themselves before the tribunal. However a lawyer may represent a party before the tribunal where the party is a child or is of impaired capacity.[7] For this reason, a lawyer from the clinic must be available. Only lawyers are permitted to represent clients that require representation, a law student cannot represent anyone at the tribunal.[8] As stated above, the clinic will need to have a lawyer available in these instances.

 

The involvement of a lawyer is also required under the Code of Professional Conduct, which stipulates that a lawyer must supervise the activities of a non-lawyer.[9] The amount of supervision required depends on the complexity of the case, and should be determined by the clinic’s legal staff. It is possible for lawyers to delegate tasks to non-lawyers working at a legal clinic, but this should be monitored closely as the clinic is new and will require direct input from lawyers at its inception.

B. Advice on Structure

It is recommended that the clinics lawyers be directly involved in its creation by supervising the work of the clinic staff (as is required by the Code of Professional Conduct[10]). This will increase the likelihood of its long-term success.

As the tribunal is a new venue for resolving disputes the specifics of how it will operate are still unknown. Experienced lawyers are in a better position to address any initial issues of the new tribunal and clinic. When appropriate the supervising lawyers may be able to delegate responsibility to other staff members.

We propose that the structure of the designated consumer claims clinic be divided into two tiers: (1) case management phase[11] and (2) tribunal-hearing phase.[12] We recommend that a minimum of two lawyers be assigned to each tier to oversee its operation. Ideal candidates for these positions would be lawyers with direct experience in dispute resolution and tribunal work to provide big picture knowledge of the tribunal’s operation.

Under this recommendation, when a client enters the clinic he or she would undergo an initial assessment with a student(s) and lawyer from the clinic’s first tier to discuss their case/issue. After the initial assessment the lawyer and student(s) would collaboratively decide whether the student(s) is capable of representing the client on the matter alone, or if the matter is sufficiently complicated so as to require the lawyer to oversee the file directly. This decision would require a discussion of the complexity of the file as well as the student’s experience and confidence level. At this initial meeting it is important to explain that the tribunal is unable to hear constitutional questions (including Charter questions) or issues dealing with the Human Rights Code.

Once it has been determined who will take the lead in overseeing a specific file (student(s) or lawyer) the client would be informed of the decision and work directly with the assigned representative in preparing for the tribunal hearing. If it is determined that the student can take the lead, they will be in charge of interviewing the client, drafting motions and generally preparing the case for the tribunal hearing. In this case a supervising lawyer would directly oversee all work completed by the student and remain on hand to advise whenever necessary.

If the client’s case makes it to the second tier of the clinic’s program, the tribunal-hearing phase, it is recommended that the representative from tier 1 explain the process to the client; including the general expectation that clients represent themselves. If the client is unable to represent themself (age or impaired capacity) a lawyer from tier-two would be informed of their need for representation at the hearing.

It is suggested that the student assigned to the file would not change as the file moves from tier one to tier two to facilitate a smooth transition and provide clients with a consistent contact person. However, since the lawyer overseeing the client’s file may change from tier one to tier two, all representatives must be versed on each cases details. The clinic will hold monthly “case briefing” meetings (law students and tier lawyers discuss tribunal cases) and ensure detailed file progress is recorded.

The monthly “case briefing” meetings would serve two purposes: (1) provide an opportunity for tier lawyers to ask questions about the client file and (2) provide students with the opportunity to discuss each case and receive lawyer feedback.

C. Access to Justice

We recommend that the clinic have flexible hours to accommodate low-income clients who may have difficulty accessing the clinic during regular work hours. To accommodate this we recommend that in a given week the clinic should be open for a minimum of one day during the week and one day on the weekend. The clinic may also wish to offer drop-in appointments, dependent on lawyer and student availability, to increase access to clients who have little notice with their work schedules.

Similarly to other legal clinics, we recommend that particularly vulnerable persons be given priority. This includes, but is not restricted to, immigrants, visible minorities and senior citizens. Lastly, we recommend that the clinic consider providing semi-regular seminars on issues such as self-representation. These discussions would be of value to both the clinic and the community at large. As with all our recommendations, the feasibility of such may be determined once the clinic is running.

Sincerely,

 

New Age LLP

 

[1] Bill 44, Civil Resolution Tribunals Act, 4th Sess, 39th Parl, British Columbia, 2012.

[2] The Law Society of British Columbia, Code of Professional Conduct, British Columbia: Law Society of British Columbia, 2013 [Code of Professional Conduct].

[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[4] Human Rights Code, RSBC 1996, c 210 [Human Rights Code].

[5] Supra note 1 at cl 3(2)(a), (b).

[6] Supra note 1 at cl 4(3), 5.

[7] Supra note 1 at cl 20(1), 20(2)(a) – (c).

[8] Supra note 1 at cl 20(4)(a), (b).

[9] Supra note 2 at s 6.1-1 (1).

[10] Ibid.

[11] Supra note 1 at cl 17.

[12] Supra note 1 at cl 2(3)(b).

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The Road to (Legal) Innovation

First, I would like to start by congratulating the class on the successful completion of the Law Hacks presentations. I thoroughly enjoyed all the presentations which exposed me to some great ideas regarding legal innovation. I am excited to know that at least one of those ideas, Summons, is already on its way to becoming reality; I hope that more follow. As we look towards our future and the innovation of legal practice, there is a caveat to be considered.

In his article “The failure of legal innovation“, Jordan Furlong introduces the readers to the nature of the start-up market. Furlong points out that we live in the age of start-ups, a phenomenon that brings about significant social and economic benefits, but one which is characterized by the risk of failure. For every successful start-up, there are far more failed ones. As Furlong points out, the reason for failure is not always a bad idea, sometimes its bad execution, or worse still, pure bad luck. The point that he is trying to drive home is that there are immense challenges in the way of start-ups, which we got a taste of by getting grilled by the ‘dragons’.

As we learned during the semester, the legal profession is going through a transitional period as we play catch-up with the technological advancements. As much as it scary, it is a good sign that we have chosen the route of innovation rather than extinction.  It is no doubt that the need of the hour is investment in bold and fresh new ideas. However, I would like to add one caveat to this process: know when to stop. As mentioned earlier, a start-up’s failure isn’t always due to a bad idea; there are numerous other variables that account for success. Therefore, it is important to know when to give up on an idea, lest we end up chasing down a rabbit hole.

As part of the first graduating class of L21C at TRU Law, we are well on our way to start contributing meaningfully to the transition. The challenges ahead of us, as lawyers, are greater in way because lawyers don’t like to be told that they have been doing something wrong, especially when they hold considerable power in terms of regulating the practice of law. However, incremental changes by way of resilience will make sure that we come out stronger at the end of every battle. As Furlong said “[o]ne LinkedIn or Uber is worth many pets.com”; let’s keep trying for our LinkedIns and Ubers.

Finally, I would like to thank Professor Sykes for putting this innovative course together and introducing us to the future of our legal careers.

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Artificial Intelligence: Shaping the Future of Law

I very much enjoy Sci-Fi movies about artificial intelligence, but I am not particularly keen on being replaced by a machine that can spew out better legal arguments in a milli-second based on an algorithm. The majority of our class discussions have focused primarily on technological innovations in the legal field. Artificial intellegence has been hailed as the future of law. It’s all very exciting, until the foreboding feeling sets in and you’re reminded that not only do you have to compete with 4.0 Bobby for a job, but with a machine as well. According to Michael Cross in his article, Role of Artificial Intelligence in Law, “ a computer is as fresh and alert at 2 am as it was at nine o’ clock the previous morning.” Yeah, well, no arguments there. Computers will always be faster, more efficient and accurate at any given time of the day.

The abstracts from the 14th International Conference on Artificial Intelligence & Law sum up the relationship between law and artificial intelligence eloquently. Both fields are involved in the process of creation. AI systems are built, experiments are designed and paradigms are replaced. In law, legislation is drafted, precedents are set and beliefs are balanced. Both fields struggle with the complexity of modeling human behaviour. AI aims to recreate human behaviour, while the law intends to drive human behaviour. The meeting of law with AI was inevitable. But where does that leave the plethora of graduating law students and lawyers?

Throughout this class, we have all been reminded of the concept of the “legal sherpa” and helping the ordinary lay person navigate the convoluted path of the law. A more refined role for AI in law is to provide strategic legal guidance. Programs such as ROSS a digital legal expert, built on IBM Watson helps attorneys with their legal research based on plain word searches. This serves as a valuable tool to help guide lawyers in their everyday research. In the end this will make legal profesisonals more effective because they will be able to complete their tasks more efficiently therefore charging the client less for services.

London firm Hodge Jones & Allen has pioneered a predictive model of personal injury case outcomes to assess the predictability of their current caseload. The program will assist the firm in determining which cases have a greater chance of success, therefore allowing the firm to direct their client towards either settling or proceeding with a claim. This is an example of a legal technological advancement in action and in the future personal injury firms and perhaps others as well, may greatly benefit from using such programs.

This new technology will not hinder or replace legal professionals at all. In fact, I see it helping to make the jobs of lawyers easier and more enjoyable. It will also help them bring a wider array of services to their clients in a quicker and more streamlined manner. These advancements will thrust lawyers into more advocacy-based roles because those types of positions cannot be fulfilled by AI, at least not for now. In conclusion, I do not believe that lawyers will ever fully be replaced by AI but it can serve as a useful tool that can better the practice of law.

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Money Can’t Buy Me Happiness… But It Can Buy Me a Boat

If you were to play a game of phrase association with a group of lawyers (and law students for that matter) and give them the phrase “mental health”, I would posit that many of the answers would deal with clients. You would be likely to hear many things: not criminally responsible, fitness to stand trial, and other job related answers.

The troubling part of this thought experiment is that lawyers (and law students) have a strikingly high occurrence of mental health issues but would be very likely to point to the mental issues of others. As is pointed out in the New York Times article by Douglas Quenqua, lawyers are over three-and-a-half times more likely to suffer from depression. The reasons and causes for this are unknown but oft hypothesized. The fact that getting into law school (I would argue it starts even when trying to get into law school) results in an immediate spike in the likelihood of developing depression is a scary proposition. I’m sure that many students understand that they are getting into a difficult profession and one that involves a great deal of stress.

There is something to be said for the fact that lawyers are among the highest paid professions. There is an allure, a draw, and something to be said for the idea that lawyers get into the profession to make more money than they might in another field. This is possibly done at the expense of some personal relationships and free time. Most lawyers go into the job with open eyes and decide to do it despite the downsides.

Lawyers are often of a certain personality type, and I would argue that this personality type is also the reason why lawyers have a higher risk of depression. They are less likely to admit there may be a problem, less likely to seek treatment because of it, and more likely to continue trigger behaviours that exacerbate depression symptoms (read: stress out and drink). Too often depression is seen as a weakness instead of the chemical imbalance that it truly is. The chemical receptors in the brain that allow you to feel happiness do not connect as frequently in a person that suffers from depression.

Quenqua’s main thesis of his article was that lower paid lawyers reported being happier than the more well paid legal professionals. He states that lawyers in the public sector (public defenders and legal aid lawyers) were more likely to report being happy. The most likely rationale for this disparity between public and private is that private sector lawyers are far more likely to be working longer stressful hours. One aspect of public sector and in-house counsel legal work that is often touted as a recruitment tool is that of work-life balance. While not conclusive I believe this is because the expectations of both hours and “billable” work is reduced. As a corollary, the public service lawyers drank less than their higher income counterparts; as noted earlier, alcohol is a depressant. The alcohol may be a “chicken or the egg” argument; the higher-paid lawyers drink more, thus resulting in more unhappiness, or the unhappiness triggers more drinking.

I also take issue with the program at George Washington university, when attending law school many students are unsure of what sort of practice they will be in when they graduate. This is true of most students and speaks to the variety of legal work out there; however, the other major factor at work is the uncertainty of the job market. Many lawyers report finding a firm that they liked following graduation and the firm having an opening or a need in one field or another and “ended up doing x”. I would suggest that while giving students a taste for all the different opportunities is noble, it may also result in a student getting their heart set on one potential stream (abandoning a more broad course load), come out of school seeking only one type of opportunity, only exacerbating the problem of finding a job after law school.

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