Fred Headon, Chair, CBA Legal Futures Initiative

Our message to lawyers is this: Look at the opportunity.

The Canadian Bar Association is a national, voluntary and representative organization for members of the Canadian bar. Approximately 37, 000 practicing lawyers, law students, notaries, and judges in Canada belong to the CBA. The CBA Legal Futures Initiative is a commission appointed by the CBA to study how and why the Canadian legal marketplace is changing — and what the Canadian legal profession can do to successfully adapt to those changes. Headon, who served as Chair of the CBA Legal Futures Initiative, is a Past President of the Canadian Bar Association and is Assistant General Counsel – Labor and Employment Law, Air Canada.The CBA Futures Report (issued in August 2014) is an attempt to help our members understand why client expectations are changing and how they can get ahead of them.

Lawyers are losing their relevance to the people they are supposed to serve. Lawyers have not embraced technology the way other industries have. Lawyers have not updated their processes the way that other industries have.

We are concerned that we will find ourselves becoming less and less relevant, and we see many ramifications of this:

–           That the people we are here to serve are not getting the service that they need,

–           That if those people are getting services from someone not trained in the law, they might be getting a sub-optimal outcome,

–           That lawyers are missing opportunities in the marketplace.

But most importantly, the legal profession has an essential role to play: in democracy, in the economy, in civil society. If we are not present in people’s lives and not connecting with them, are we really playing that role? And if we are not playing that role, then should we continue to benefit from the privileges that we have, such as self-regulation?

We realized that many of our members are not very well equipped to deal with this kind of change. When we were in law school, no one taught us the things we need to know to handle these issues today.

So we embarked on an inquiry into what is going on in the lives of clients to change their expectations, specifically with a focus on the Canadian market. We had had the idea of the study for several years, but it was only in 2012 that we were able to get both the people and the funding together to make it happen.

Now we are going out on the road in order to speak about the research. We explain the results, we help lawyers understand better how and why client expectations are changing, and we show lawyers in concrete ways how to flourish in the new environment. We explain why the regulatory changes we propose are helpful, and what safeguards can be put in place as the changes are made. We hope that if we can help lawyers to understand all of that, then concerns about the regulatory changes will lessen over time. Ultimately, we hope that the Report will help ease the way to the broader regulatory change that we advocate for Canada.

For many lawyers, the business model still “works.”  It is hard to tell people who are making a decent living that their business model is broken. When I get that kind of reaction from people, I remind them that the most profitable year for the buggy industry was the year before the car was invented. Are we perhaps living in that time right now?

Surveys show that in Canada, a very small number of legal problems — as little as 1 in 7 — are addressed by a lawyer. That is a very small slice of the market that lawyers are serving. There is so much opportunity out there for lawyers to gain a greater share of that market and to better play our role as a profession.

Clients want us to use processes, they want lawyers to work with them in a more transparent manner, they want to be more engaged in the process, they want a lower price, and, especially, a more predictable price.

Law firms can benefit from the expertise of different types of people to help us to change how we work in order to meet those expectations. When we spoke to these different types of people — people with business or engineering backgrounds, for example — they told us that while they might be willing to act as consultants, what they would strongly prefer is to become a real part of the business, and enjoy the upside that comes with that.

It could be very interesting for a law firm to have that kind of permanent presence in the law firm, with a continuing engagement for process improvement. A lawyer could go back to school to learn what these experts have learned, but bringing these experts in as full partners is an alternative that many lawyers might understandably prefer.

Another client expectation is that we provide them with a solution to their problem — not just the legal aspect but the problem as a whole. This is the value of a multidisciplinary practice — a business that can provide a holistic service to the client.

In sum, our message to lawyers is this: Look at the opportunity. Your clients are asking more from you, but they don’t need it to be delivered the way you’ve always delivered to them. You are tired of answering emails day and night and on weekends and holidays. What if you had systems and technology in place that simplified your day rather than burdening you? There is a whole world of opportunity out there for lawyers to do more. But it has to be done differently. What we do is important, but there is little sacred about how we do it. So let’s get closer to those who can help us change our practices and seize these opportunities.

We also address the ethical objections that are raised — the objections that nonlawyer ownership will undermine the relationship between the professional and the client, that undue pressure will be brought to bear on the lawyer, causing them to act unethically, etc.

We have a few responses to those objections. To begin, lawyers are not the only ethical people out there. In addition, a reasonable investor hoping for a return will not want a business to act in a way that would bring down the value of the business.

I like to draw upon my own experience as in-house counsel at Air Canada. Safety is as important to the aviation industry as ethics is to the legal industry. I’ve never heard an Air Canada shareholder suggest that we skimp on maintenance to drive a better return. They know that if the airline is not safe, then neither is their investment.

I also like to point out that, in anticipation of a worst-case scenario, we can put in place safety nets. This raises the importance of entity-based regulation and establishing direct reporting lines to authorities, in a manner similar to the way pilots have a direct relationship with aviation regulators to report anomalies that they observe. There is no reason why we can’t learn from that for the legal profession.

In sum, while we are calling for certain rules to be loosened, we are also calling for a certain number of new rules to keep it all in balance. We believe that our message is beginning to resonate.

The changes in the UK and Australia have obviously had a strong influence on us —they have formed a background for all of our work. We’ve looked at the regulatory frameworks in both countries, to see what we think could be used in Canada, and also to see where there were problems that we could learn from and avoid.

We saw in the UK and Australia that it was politicians who took the initiative to make changes. In Canada we hope to get ahead of the curve — it will take some time to get there, but we hope to make the changes ourselves. We want to invent our future rather than have it thrust upon us.

This story is supplemental material for Modernizing Legal Services in Common Law Countries: Will the US Be Left Behind? To learn more about the book, please click here.

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