Post-Mortem, CBA Futures Debate on ABS

On February 21, I participated in the panel debate on Alternative Business Structures (ABS) at the plenary CBA meetings in Ottawa, for which I had provided my preliminary speaking notes on this blog.  I left the debate feeling there is no business plan for allowing non-lawyers and corporations to share in the delivery of legal services: in short, no case to answer.  Many, many CBA leaders approached me afterwards, and they voiced unanimity that the association must not advocate for adoption of ABS.  In 2010, CBA President Kevin Carroll’s message to the profession was that the ‘trusted adviser’ role of the lawyer was the bar’s greatest asset.  In last Saturday’s debate, that meme was also my argument’s greatest asset.

In 2015, a paper commissioned by OBA Foundation reinforced the principle that the lawyer’s duty as fiduciary “ensures that clients can access the social settlement of law and enjoy the respect for their dignity and autonomy the law affords” (p. 44 of the paper that can be downloaded here).  That the author, a supporter of ABS, came to such an insightful conclusion after studying the lawyer-client relationship, tells us there is more than the market’s eye can see when it considers the value of legal services.

It is our responsibility to the public to provide access to the law in a manner that gives citizens confidence in making important, often life-altering decisions. This means innovation must be about the client and about the law itself. The extent to which the business of law must innovate must be subordinate to those whom we protect and to the law we uphold.  Devising ways to make money from law that loosen that duty, or to provide access to justice in bulk, is not ultimately good for justice or the public’s access to it.

As I stated during the debate at the CBA meeting, we are not vendors of law, and what we deliver cannot be dispensed from a vending machine or as part of another service. If it bothers citizens that eye doctors sell eyeglasses, and that pharmacists want the authority to prescribe drugs, it should also concern the public that some lawyers want to introduce that model to law.  It should not be CBA’s role to embrace hyper-commercialization of law but to educate the public about the erosion of confidence in the rule of law that is associated with such market pressures. Our ‘service’ is not a commodity but the word we use to define of our loyalty to those we serve.

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