Law Times

March 16, 2015

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Law Times • March 16, 2015 Page 3 www.lawtimesnews.com Debate on aBS edging towards bitterness Discussions increasingly noting divide between large, small firms By JULiUs meLNiTZer For Law Times he debate over alterna- tive business structures in Ontario is edging to- wards bitterness as evi- dence mounts that the profession is fracturing into two solitudes. "It's been about 20 years since the large firms stopped do- ing work for consumers," says Malcolm Mercer of McCar- thy Tétrault LLP, who leads the Law Society of Upper Canada's working group on alternative business structures. "We're now at the point where we have separate markets." That's perhaps one of the reasons why Bradley Wright of the Wright Law Firm in Ot- tawa, who served as an elected bencher of the law society on four consecutive occasions and is now a life bencher, is so vocal about the choice of Mercer as a spokesman for the regulator's review committee. In an e-mail responding to a recent article in Lexpert magazine, Wright pointed out that Mercer had spent his entire career as a liti- gator at McCarthys. "Malcolm is a great guy and I know him very well, but he has never spent one second working in a small law firm," wrote Wright. "The ocean he swims in is one in which everything can be solved by giant entities using computers." The large firms, Wright ar- gued, are at the heart of the ac- cess to justice issues that sup- porters of alternative business structures cite. "[Mercer's] firm and similar firms charge their clients a for- tune," he wrote. "There is an access issue re- garding firms of that size. There is no access issue to small firms, especially small solicitor firms. I can handle an entire file for less than the cost of the space under- neath his wastepaper basket." The greatest barrier to access to justice, Wright added, is the "ruinous" time and cost of liti- gation. "That looms over all other real and imagined barriers, and ABS does nothing to address it," he suggested. For his part, Mercer cautions against approaching alternative business structures from a polit- ical as opposed to a public policy perspective. "From a public policy perspec- tive, there are things that affect large firms that are worth ref lect- ing upon," he says. "Since 2008, large firms have been examining ways of doing business differently because of competition from in-house de- partments, firms like Cognition, and legal outsourcers. They have had to change the way they pro- vide services." Interestingly, not a single re- sponse received by the LSUC on the interim report of the alter- native business structures com- mittee can be characterized as coming from a large or perhaps even a medium-sized firm. Mercer concedes that large firms "do not have a stake" in the discussion on alternative business structures but argues their input can be valuable. "What they do have is the experienced perspective of see- ing how things change when challenges to the existing ways arise," he says. "It's also true that fish don't know they live in the water, so all of us run the risk that we misunderstand the limits of our particular perspective." Mercer is careful to point out that he's not "discounting the concerns" of smaller law firms. "Personal injury lawyers, for example, legitimately point to Australia and England where large firms have significantly in- creased their share of the mar- ket," says Mercer. The law society committee's interim report on the issue offered a variety of options, including not proceeding with alternative business structures, but took no position on whether non-lawyers should be able to own law firms. The law society received some 40 comments on the task force report. By the LSUC's own account, as released in the form of an overview chart, nine re- spondents favoured alternative business structures while 12 opposed them and 19 proffered what it called a mixed response. On close review, however, many of the 19 mixed responses ap- peared fairly dubious if not cyn- ical about alternative business structures. Of the 20 responses from law firms, lawyers' organizations, and other groups (as opposed to individuals), only three (Cogni- tion LLP, Conduit Law PC, and the Law Students' Society of Ontario) were in favour of al- ternative business structures. Some six groups opposed them (the Criminal Lawyers' Associa- tion, the Essex Law Association, the Federation of Asian Cana- dian Lawyers, McLeish Orlando LLP, Stewart Title Guaranty Co., and the Ontario Trial Lawyers Association) and 11 fit into the mixed-response category. Wright notes that of the three entities that approved, two were law firms that represent some of the cutting-edge change that's occurring in the provision of le- gal services. "Yet all of those changes (and those made by other nimble firms) occurred without ABS," Wright noted. "Pay particular attention to what the English are now say- ing about [ABS], including the lord chief justice, various early opportunists, and other com- mentators." Ironically, the current debate is reminiscent of the controver- sy surrounding McCarthys' in- cipient attempt in 1982 to create a national law firm by opening an office in Alberta. "I think the Law Society of Alberta's report on the subject was called Keep the Interlopers Out," says Mercer. "I guess that's life." LT NEWS Have your say in shaping our future List of candidates for 2015 Bencher Election now available Nominations for the Law Society's 2015 Bencher Election have now closed. A list of candidates is available at www.lsuc.on.ca/bencher-election-2015. Held every four years, the Bencher Election gives Ontario's lawyers an opportunity to decide who will provide leadership for the Law Society as members of Convocation. Voting will open in the second week of April and close April 30. A Voting Guide with information about the candidates will be posted on the Law Society's website prior to the opening of voting. Go to www.lsuc.on.ca/bencher-election-2015 for more information about the election and voting procedures. 2015 BENCHER ELECTION 2015 ÉLECTION DES MEMBRES DU CONSEIL www.lsuc.on.ca/election-conseillers-2015 www.lsuc.on.ca/bencher-election-2015 Votre mot à dire sur notre avenir Liste des candidats à l'élection des conseillers de 2015 disponible Les mises en candidature pour l'élection des conseillères et des conseillers du Barreau de 2015 sont maintenant fermées. Une liste de candidats se trouve à www.lsuc.on.ca/élection-conseillers-2015. Tous les quatre ans, l'élection des membres du Conseil donne aux avocates et aux avocats de l'Ontario l'occasion de choisir les membres qui gouverneront le Barreau. Le vote commencera durant la deuxième semaine d'avril et prendra fin le 30 avril. Un guide électoral contenant de l'information sur les candidats sera affiché sur le site Web du Barreau avant l'ouverture du scrutin. Allez à www.lsuc.on.ca/élection-conseillers-2015 pour trouver d'autres renseignements sur l'élection et sur les procédures de vote. Untitled-3 1 2015-03-10 2:11 PM T Malcolm Mercer cautions against approaching alternative business struc- tures from a political as opposed to a public policy perspective. CANADIAN LAW LIST 2015 This is more than a phone book. 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