We’ve seen that we have an opportunity to make some changes and get some things done. We don’t think that these changes are necessarily going to change the world. We simply see them as a way for lawyers to be innovative and to get things done in different ways. We see that nonlawyers may have a role to play.
The Law Society of Manitoba regulates, licenses and disciplines the lawyers of Manitoba.
The Benchers of the Law Society of Manitoba have been attuned to the changing marketplace. They have recognized problems with access to justice, and they have seen the need to find new ways to provide legal services.
Regulators are under pressure as a result of globalization, technology, and market demands for services that are more efficient and affordable. How it will play out, and what it will look like — that remains to be seen. But the concept that the marketplace is changing and that alternative ways to provide legal services are needed — the Benchers of Manitoba have accepted that and do not see it as controversial.
The Benchers have seen entity regulation, in particular, as a way to permit lawyers to be more innovative and allow them to compete with what is actually happening in the market place. The Benchers have concluded that permitting ABS would improve access and affordability of legal services to the public. With entity regulation, we can move toward permitting lawyers to partner with nonlawyers, and allowing law firms to accept capitalization from other sources.
We have been working with our counterparts in Saskatchewan and Alberta in order to explore how law societies can appropriately and effectively implement entity regulation and allow for alternative business structures in a coordinated way. We expect we will soon be coordinating more closely with Nova Scotia and British Columbia as well. We would like to see uniform regulation across Canada to the extent this is possible — we do not think we are alone in this regard because differing legislation across the provinces could prove problematic given that many lawyers and law firms have multi-jurisdictional practices.
The mandate of the Law Society of Manitoba is to regulate lawyers (and, now, law firms) in the public interest. This means assuring that the public has the legal services they need to meet their issues and challenges.
We’ve certainly heard the concerns about alternative structures, and namely the concerns that they will undermine legal professionalism and ethics. We take those concerns very seriously. We think that the response to those concerns is entity regulation. In regulating law firms as well as lawyers, we have the ability to ensure that the services a firm provides meet ethical and professional obligations and that the firm puts the client’s needs first.
We’ve also heard the arguments that there is no evidence that alternative business structures increase access to justice. We are not convinced that that is a reason to prohibit them. There is also no evidence that alternative business structures won’t increase access to justice. We see alternative structures as offering opportunities to deliver services in new and innovative ways. They can open doors to providing services to clients who otherwise might not be able to afford them or otherwise access them. We don’t see how whether there exists proof that this necessarily will or will not occur is a compelling enough argument to hold us back.
If we look at what is happening internationally, and the market pressures that we are all facing, the reality is that the practice of law has changed. It has changed dramatically. It has changed in the last five years in ways it did not change during the 25 years before that. The pace of change is not going to slow down. We need to be able to adapt and respond to change. We need to be able to allow lawyers to be innovative in the way they provide services, as long as the public interest is protected.
The Legal Profession Amendment Act was introduced to the Manitoba Legislature in May 2015 and adopted in November, 2015. Its adoption is very exciting for us.
There are probably a number of factors to explain the breakneck speed for its adoption. To begin, our Government was prepared to look at the regulation of legal services in a progressive way. In addition to that, our new Minister of Justice and Attorney General is very keen on addressing our access to justice problems in Manitoba. It was in that context that the Government accepted the conclusions of the Benchers that there are mechanisms by which we can improve the way we regulate the profession, and that would in turn improve the delivery legal services, and address the access justice issue. Of course, the fact that our Benchers have embraced the regulation of law firms (that is, law firms in a broader sense so perhaps involving lawyers and nonlawyers) in addition to individuals made the decisions of the Government and the Manitoba Legislature that much easier.
Here in Manitoba the question of alternative structures has not been the hot button that it has been in Ontario. Certainly here we have kept the profession advised of where we are going, but there simply hasn’t been in Manitoba any kind of organized opposition to what we are doing, or indeed any pushback at all. I think that our lawyers do not see what we are doing as a threat. I think they do see the possibility to provide new services to the public that today the public cannot access. I think that they see the possibilities that the internet offers, and they see that companies like LegalZoom and RocketLawyer have not been detrimental to their own practices. I think the profession in Manitoba is willing to recognize a new reality, and to accept a shift in how lawyers work.
Legal services is a business, yes. But it is also a public service. What we’ve done in the past is “one size fits all.” Today the needs of the public are changing and flexibility is required to meet those needs. Alternative business structures offer that flexibility — they can be many different things. It seems almost counterintuitive to not allow for them if your objective is to protect the public interest. And again, as regulators, that is our mandate — to protect the public interest.
Lawyers, by their very nature, are conservative, prudent and risk adverse. From a lawyer’s perspective, alternative business structures represent a monumental change. But change is not necessarily bad.
I am not sure how to explain the difference between Manitoba and Ontario. It’s no question that the personal injury bar in Ontario took a very strong position in opposition to alternative structures. Perhaps at least a partial explanation is that across the Prairies we often take a very practical and pragmatic approach. I think that in this particular case, we’ve seen that we have an opportunity to make some changes and get some things done. We don’t think that these changes are necessarily going to change the world. We simply see them as a way for lawyers to be innovative and to get things done in different ways. We see that nonlawyers may have a role to play. Having said that, Ontario does have a regulated paralegal structure that we do not have in Manitoba, and that’s a progression we’ve not had in Manitoba.
With the recent adoption of the Legal Profession Amendment Act, we now have to discuss and decide how we move forward from here. I would not be surprised if we move forward incrementally. For example, we can begin by requiring registration of law firms, and with that begin to collect data. We can also go through a process to determine how to assess risk, and focus our resources on those elements of regulation that will really make a difference and address risk. As regards entity regulation, as we consult with our partners in Saskatchewan and Alberta and move forward from there.
These are not easy issues. As we move forward, we want to be sure that we do it for the right reasons. It will probably take us some time to get where we want to be, but now in Manitoba we have a legislative framework that will permit us to move forward, and we are very excited about that.
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