What a Law Society Should Be — A Response to the Law Society of Upper Canada's Alternative Business Structures Discussion Paper of September 24, 2014

Abstract

ABS proposals (alternative business structures proposals) to improve the method of delivering legal services, cannot solve the unaffordable legal services problem and could prevent the Law Society from doing so. This paper expresses the author’s opinion by developing the critically important relationships among: (1) the ABS question (whether relevant legislation and Law Society bylaws should be changed to allow law firms to adopt alternative business structures, such as being owned by non-lawyer investors to obtain needed financing); (2) the unaffordability of legal services problem that afflicts the majority of Canada’s population, and whether it should be solved first; and, (3) the conception of what a law society should be in order to fulfill its duties under s. 4.2 of the province of Ontario’s Law Society Act, which include: (a) “to maintain and advance the cause of justice and the rule of law”; (b) “to act so as to facilitate access to justice”; and, (c) “to protect the public interest.” The title of the law society in the province of Ontario is, The Law Society of Upper Canada (LSUC), named while part of the British colony of “Upper Canada” because it is further up the St. Lawrence River than is “Lower Canada,” now the province of Quebec. They ceased to be British colonies when Canada became a country on July 1, 1867, which was 70 years after LSUC became a law society in 1797.

A critically important issue of the ABS question is, what is the needed concept of a law society — is it a support-service for the practice of law, and not just a regulator, i.e., to use a sports analogy, a provider of stadiums and arenas for new areas of practice, and a CPD/CLE coach and trainer, and not just a referee, and more often than not, merely a spectator watching part-time from the sidelines? Are its functions as a regulator of the legal profession and as a representative of lawyer-interests, in conflict, like trying to be the referee and the coach at the same time?

And do the ABS investors and their advocates want to be the owners of the team (in fact, all of the teams), and in the game only for the profits, and to gain control of the legal services market by way of enfranchising strings of owned law firms that substitute an entrepreneurial duty to their owners, in place of the fiduciary duty to clients?

Keywords: concept of a law society, law society functions, conflicts of interest-regulatory and representative functions, alterntive business structures, ABS, access to justice, unaffordable legal services, legal services delivery, legal aid, Clementi Report