Law Times

Law Times • may 2, 2016 Page 5 www.lawtimesnews.com NEWS Age of the consumer is here BY GAIL J. COHEN Law Times W hen asked if the legal profession can move into the future without ex- ternal investment, Law Society of Upper Canada CEO Robert Lapper was unequivocal. "No." He was responding to an audience question during a ses- sion on the new realities of prac- tising law at The New Frontier of Legal Innovation summit held at MaRS in Toronto late last month. Lapper and Chris Bentley, the executive director of Ryerson Unversity's Legal Innovation Zone and Law Practice Pro- gram, didn't mince words dur- ing their panel discussion. Lapper noted that while the discussion of alternative business structures is currently somewhat on the backburner at the LSUC, it's still on the table. And he is quite insistent that for the law so- ciety to meet its responsibilities of regulating in the public inter- est as well as ensuring access to justice, the profession is going to be forced to open up so non-law- yers can invest in and provide legal services to the public. "We haven't got the balance right yet. We are late to the party," he said. "Our regulatory system is largely still a 19 th - century model of a sole practi- tioner with a quill pen in a coun- try law office." Bentley's view is equally un- ambiguous: "Within 18 months, I see one province opening up to ABS and then it's game over for everyone else." There is going to be "an economic reality that is going to require investment by non- lawyers" being driven by in- novators and entrepreneurs who don't want lawyers to con- trol what they're doing, he said. And they are the ones who are going to start addressing the 85 per cent of Canadians' legal needs that aren't being met. "Where is the duty and obliga- tion to start providing services to those 85 per cent?" asked Lapper. Bentley said, "We're leaving the age of the provider and we are all part of the age of the consumer." Consumers want solutions, transparent approaches, price certainty, and affordability, but "we have delivered process, com- plexity, uncertain price, lack of affordability," he said. Getting there is not that hard, he pointed out. There's also money in it. "What is missed by most law- yers is that many of those people have money. They can afford some legal solutions — it was affordable and looked like a legal solution," said Bentley. "They don't want to pay for process." He added, "I'm not sure there's an appreciation of how much money is on the table for lawyers, how much the oppor- tunity is for individual lawyers, and how quickly that is going to be filled by others if lawyers don't do it." And technology is a big part of what can drive change, they said. Many solutions the public is looking for don't necessarily involve courts, but they will still require legal assistance. Bentley agreed technology can boost access to justice, but it doesn't mean the end of lawyers. He pointed to online dispute resolution that is being piloted in British Columbia and add- ed that England is also doing it, particularly in family court. "Out-of-court resolution does not mean no lawyers," Bentley told the packed room. That can mean dealing with issues both before and outside of court. There are solutions that are relatively easy, he said, in- cluding mandatory information that is provided by the courts, an easy screening process to move people into streams, and even a triage system. "You can change positively the outcome in the family court for more than half of the people within 90 days," he said. "I call on the law society to take the lead on this and push it as hard as we can." Lapper responded that they are in "violent agreement" about the need for change, noting the LSUC along with the Ministry of the Attorney General and former chief justice Annemarie E. Bonkalo are looking into the scope of practice and more. "What we hope will come out of that is what info. should we have at the start of a family law issue and who should and could provide it," he said. Part of the problem, said Lap- per, is lawyers "get a bit afraid of doing that" because they realize there are many pieces that might not have to be done by lawyers and that's frightening. As Bentley noted: "Law is not so different as we like to think. We refused to look at law as the provision of service or infor- mation. We have treated it as [a] journey that you have to pay for each step. We need to re-en- vision it and how the consumer gets the results." LT Robert Lapper says while the discussion of alternative business structures is currently somewhat on the backburner at the LSUC, it's still on the table. LSUC approves mental health strategy BY YAMRI TADDESE Law Times T he Law Society of Up- per Canada's governing body approved a new mental health strategy at its April meeting. The approval means law so- ciety will develop "a comprehen- sive and proactive" communica- tion strategy for mental health and addiction awareness. The plan is to "focus on early, repeat- ed and pervasive communica- tion, education and attitudinal change," says the LSUC's mental health task force report. The strategy also recom- mends looking into adopting diversion discipline programs for lawyers and paralegals with mental health issues. In Nova Scotia, for example, the barris- ters' society's Fitness to Practise program creates a separate hear- ing panel for licensees who suf- fer from mental health issues. When the mental health strategy is implemented, the law society will also consider conducting capacity hearings, which determine whether a law- yer is mentally fit to practise law, in the absence of the public. "The regulator is not an ex- pert in mental health and can- not treat or remedy the illnesses or addictions of its licensees. It should, instead, have in place tools that will allow for diversion in the appropriate circumstanc- es, with appropriate confidenti- ality protocols," says the report. Doron Gold, staff clinician at Homewood Health, said he supports diversion programs and more discretion for capacity hearings. "The irony we often face is that the people who most need help for issues that are not based in bad character or ill intention are the least open to admitting these conditions due to stigma and the fear that the regulator will brand them as unfit and be- yond help," said Gold. "The more informed and discreet the regulator becomes around these issues, the better, and ultimately, more effective the process will be. We don't want people who, if given access to appropriate assistance, could practise well, avoid that assis- tance, and simply be labelled unfit or not entitled to practise," he added. Former Ontario Bar Associa- tion president Orlando Da Silva, who used his leadership at the OBA to bring attention to men- tal illness in the legal profession, says the strategy is a sign that the regulator has listened to advo- cates like him. If the plan is implemented, "I think the law society will have succeeded in moving moun- tains," says Da Silva. "It will be a sea change in the way lawyers address their own mental health issues, and it will be a sigh of relief for those who want to talk but are afraid to be- cause of the stigma." Da Silva has spoken openly about his own struggles with mental illness, but, he says, "I had never expected to see a men- tal health strategy like this in my lifetime as a lawyer. This doesn't look like lip service to me; this looks like leadership." The mental health strategy comes amid growing evidence that lawyers and other legal pro- fessionals may be at a higher risk of developing mental illness and addictions. "The culture of and stressors on the legal professions raise barriers to openly addressing these issues for those who may be affected by them and those with whom they work and in- teract," reads the law society re- port's executive summary. "The stigma surrounding mental illness and addictions, the too common confusion of diagnosis with impairment and the concerns that careers will be permanently and negatively af- fected by disclosure have a par- ticular impact on lawyers' and paralegals' willingness to reveal such illness or addictions." The law society will now pro- vide "specialized training" for staff who interact with licensees on mental illness and addic- tions. Gold calls it a "fantastic idea" that's long overdue. "Note, for instance, the em- phasis in the report on not as- suming that unresponsiveness by a member under investiga- tion amounts to ungovernabil- ity," said Gold, who brought up this issue when he was consult- ed by the law society's mental health task force. "Often, unresponsiveness by members is simply overwhelm- ing anxiety leading to avoidance of even opening law society cor- respondence. It is not ill intent but a kind of psychological pa- ralysis." Also part of the strategy is looking into whether the law society should create a mental health model policy to educate law firms and other employers on the tools to promoting mental health and identifying "possible systemic causes within the legal professions' culture and employ- ment practices that engender or exacerbate these issues." LT Orlando Da Silva says the strategy is a sign that the regulator has listened to advo- cates like him. Out-of-court resolution does not mean no lawyers. Chris Bentley

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