Changes in Traditional Legal Practice
Monday 25 August 2014 @ 11.23 a.m. | Judiciary, Legal Profession & Procedure | Legal Research
On 14 August 2014, the Canadian Bar Association released a new paper, "Futures: Transforming the Delivery of Legal Services in Canada". It has been hailed as not only a watershed moment for the practice of Canadian Law but a glimpse into the future for other jurisdictions as well.
Canadian Bar Association Paper
After two years of study, national consultations, original research, and the contributions of Initiative members from across Canada and diverse practice settings, the Legal Futures Initiative announced its findings and recommendations in their comprehensive Report, "Futures: Transforming the Delivery of Legal Services in Canada." Within the Report, the Initiative offers insights on the changing legal marketplace, the value that lawyers will bring to the future of legal services in Canada, and the opportunities that arise from lawyers choosing to adapt to change.
Some of the most interesting suggestions raised in the paper include the following:
- Flexibility in Business Structures - Lawyers should be allowed to practise in business structures that permit fee-sharing, multidisciplinary practice, and ownership, management, and investment by persons other than lawyers or other regulated legal professionals.
- Alternative Business Structures - Non-lawyer investment in legal practices should be permitted, but only on a carefully regulated basis.
- Fee-sharing with and Referral Fees to Non-Lawyers - The FLSC Model Code Rules should be amended to permit fee-sharing with non-lawyers and paying referral fees to non-lawyers.
- Delivery of Non-Legal Services by MDPs and ABSs - MDPs and other forms of ABSs should be permitted to deliver non-legal services together with legal services on the basis that if the public interest demonstrably requires that some non-legal services should not be provided together with legal services, the rules should so provide. Otherwise there should be no restrictions.
- Compliance-Based Entity Regulation - Compliance-based regulation of legal practices should be adopted to promote ethical best practices as a supplement to existing rule-based regulation of individual lawyers.
- Effective Supervision of Non-Lawyers - The FLSC Model Code Direct Supervision rule should be revised to require effective supervision rather than direct supervision.
- Structured, Rigorous and Consistent Pre-call Training - There should be a structured, rigorous, and consistent approach to pre-call training to ensure new lawyers have all the skills and knowledge required to practise safely and effectively.
- Parallel Legal Programs - Educational providers should consider creating parallel programs in areas such as legal technology, in college or other environments, or incorporated into law school education, to educate and train new streams of legal service providers which may include lawyers.
- Continuing Professional Development - Continuing professional development should be designed to meet lawyers’ needs through the stages of their careers and reflect identified and emerging client needs. Legal regulators should adopt consistent outcome-based national standards for CPD. Research should be undertaken to measure any link between quantity or input-based CPD and competence.
From the suggestions above, it seems that the Canadian Bar Association, and by support, the American Bar Association, seem to favour the liberalisation of legal market regulation and legal service delivery.
Impact for Australia
The Australian legal services market is already moving in the direction of a national uniform legal services delivery system with the new Uniform Legal Application Laws in both New South Wales and Victoria.
As stated by the Attorney General for NSW earlier this year:
"This is a major step forward – the law will benefit consumers and lawyers alike as the shorter, less complex and uniform legislation creates economic benefits for both sides."
It seems a small step from national uniform legal regulation to flexibility in business structures and legal services delivery as advocated by the Canadian Bar Association Paper.
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