As emerging technologies, globalization, and the Internet are changing the legal profession, lawyers are divided over what the future of the field in Canada should look like.
Five lawyers recently debated the opportunities and challenges presented by those issues at an event put on by the Young Advocates’ Standing Committee on June 6.
Among the handful of topics the lawyers tackled was whether non-lawyers should be allowed to own law firms in alternative business structures.
Last year, the Law Society of Upper Canada's working group tasked with looking at ABS models shelved its examination of the issue.
Gary Luftspring, a managing partner of Ricketts Harris LLP, said the field needs more entrepreneurs who are willing to innovate and less regulation holding them back. He pointed to ABS models that were being used in the United Kingdom and Australia as examples.
My view of regulation is you regulate those things that are problems and you don't regulate where you don't have to because you invariably cause problems," he told a room full of young lawyers.
Lee Akazaki, a partner of Gilbertson Davis LLP, said adopting non-lawyer ownership structures could, however, make lawyers loyal to "shareholders values."
“That's what control of law firms by non-lawyers means,” he said. "That means you have to give up the values that you have as advocates, as fiduciaries to a level that scrapes the bottom, the minimum requirements of the law, [and] the minimum requirements of the rules of professional conduct so you don't end up in lawyer jail."
Under an ABS model, Akazaki said that if someone is in a car accident, the insurance company handling the claim will be able to give the client's name to the law firm the insurance company owns to ensure the client will not make more money from them than they consider reasonable.
“This is the biggest form of ABS in the United Kingdom right now,” he said.
Luftspring argued the notion that lawyers could not be regulated within the ABS model is "nonsensical" and that entity regulation would solve possible problems of conflicts of interest.
“You shouldn't be hamstrung in the organization you put forward,” he said.
Panellists also discussed whether litigation funding is unethical.
Patrick Lamb, a partner and founder of Valorem Law Group, said he can understand why some feel uneasy about litigation funding, but he said there is not anything unusual or unfair about it.
“It provides access to people who otherwise might not have it," he said. "It allows people early on to understand the merits of their case. If you have a bad case, you cannot get funding. It's just that simple."
"It equalizes the playing field so that if you're fighting against an enormously deep pocket, you have the ability to do so," he added.
Lamb used the lawsuit brought by American wrestler Hulk Hogan against Gawker Media as an example. Peter Thiel, a Silicon Valley billionaire who found himself the subject of a Gawker story, funded the case. Lamb said.
“The lawsuit would not have happened without the financing from the Silicon Valley billionaire,” he said.
From litigation funding, the panellists turned to whether law firms should insource litigation support, including new technology.
Anne Glover, a practice group leader of an e-discovery and document management team with Blake Cassels & Graydon LLP, trumpeted the value of keeping litigation support insourced.
Glover said that as the discovery stage of litigation gets larger, it is important to have control of the entire process.
"Without control of the entire process, that stage can completely get out of control and you can lose sight of it,” she said.
The absence of that control can result in some cases never going forward because discovery would cost so much, she said.
When clients have concerns over who is seeing their documents, confidentiality can also become an issue when document review is outsourced, she said.
She said vendors can also often go overbroad or over-collect, making them expensive.
“Sometimes, you don't know what you're being charged for,” she said.
“Bringing it in-house allows you to control those costs and then you don't see those monthly bills from a vendor," she added.
Lamb said he believes document review and other process work can be done less expensively by other entities than a law firm.
The quality of control provided by [and] the quality of work provided by the third-party entities is substantially superior, demonstrably superior to that provided by law firms, with exceptions," he said. Lamb said law firms do not meet security standards, but vendors do.
“They're attuned to that problem. So you've got vendors who have NSA-level security and technology being used to reduce the size of piles of documents that need to be reviewed and law firms I don't think can keep up with that, nor do I think they should.”
Glover said that while there are vendors who are cheaper, they are not necessarily very reliable at document review.
“We are more expensive, but we add value,” she said,
“We use contract lawyers from vendors all the time, and we double check, and triple check, and always check their work and we find errors.”
Allison Speigel, a commercial litigator at Speigel Nichols Fox LLP, said document review and the general state of developing technology in-house in law firms should not be lumped together.
She said that while big projects such as document review could be shopped out to vendors, all law firms should be doing more to enhance their in-house technology, such as getting rid of fax machines.
“That to me is crazy. Fax machines are a relic of the past and law firms and the rules of civil procedure need to move forward into the present day.”
Rounding out the discussion was a debate over whether lawyers should offer flat fees to clients in complex litigation matters.
Lee encouraged lawyers to stay away from offering a flat fee for complex litigation, as one never knows how long it may take.
“Let's face it. Commercial litigation is full of motions. You don't know what's going to happen next," he said. "So if you're going to take a case on for a block fee, then you've got to be out of your mind."
Lee added that lawyers have a responsibility to tell their clients if a case is not going to be straightforward.
Speigel said litigation is not more unpredictable than many other things that people have figured out for which to set a fixed price.
“There are construction projects that are worth hundreds of millions of dollars that are set at a price, despite the fact that construction is plagued with uncertainty,” she said.
"The insurance industry exists to price uncertainty, so it can't be impossible to price. I think it's more correct to say lawyers don't know how to price."
Lamb, who is considered a thought leader on alternative fees in litigation, has been offering flat fees to clients since founding his firm in 2008.
“It's not even a debatable issue anymore, frankly,” he said.
Lamb said the issue is not whether lawyers can do it but whether they will survive if they do not. Year by year, more clients are being attracted to fixed fees, he said.
“Clients need to know exactly how much something is going to cost in litigation,” Lamb said.
“If you are not pricing that way, then the clients are going to take business from you and give it to people who are.”