Law Times

Page 4 June 13, 2016 • Law Times www.lawtimesnews.com Lawyers debate future at Advocates Society BY ALEX ROBINSON Law Times A s emerging technol- ogies, globalization, and the Internet are changing the legal profession, lawyers are divided over what the future of the field in Canada should look like. Five lawyers recently debat- ed the opportunities and chal- lenges presented by those issues at an event put on by the Young Advocates' Standing Commit- tee on June 6. Among the handful of topics the lawyers tackled was whether non-lawyers should be allowed to own law firms in alternative business structures. Last year, the Law Society of Upper Canada's working group tasked with looking at ABS models shelved its examination of the issue. Gary Luftspring, a manag- ing partner of Ricketts Harris LLP, said the field needs more entrepreneurs who are willing to innovate and less regulation holding them back. He pointed to ABS models that were being used in the United Kingdom and Australia as examples. "My view of regulation is you regulate those things that are problems and you don't regulate where you don't have to because you invariably cause problems," he told a room full of young lawyers. Lee Akazaki, a partner of Gilbertson Davis LLP, said adopting non-lawyer owner- ship structures could, however, make lawyers loyal to "share- holders values." "That's what control of law firms by non-lawyers means," he said. "That means you have to give up the values that you have as advocates, as fiduci- aries to a level that scrapes the bottom, the minimum require- ments of the law, [and] the min- imum requirements of the rules of professional conduct so you don't end up in lawyer jail." Under an ABS model, Akazaki said that if someone is in a car accident, the insurance company handling the claim will be able to give the client's name to the law firm the insur- ance company owns to ensure the client will not make more money from them than they consider reasonable. "This is the biggest form of ABS in the United Kingdom right now," he said. Luftspring argued the no- tion that lawyers could not be regulated within the ABS model is "nonsensical" and that entity regulation would solve possible problems of conf licts of interest. "You shouldn't be ham- strung in the organization you put forward," he said. Panellists also discussed whether litigation funding is unethical. Patrick Lamb, a partner and founder of Valorem Law Group, said he can understand why some feel uneasy about litiga- tion funding, but he said there is not anything unusual or un- fair about it. "It provides access to people who otherwise might not have it," he said. "It allows people ear- ly on to understand the merits of their case. If you have a bad case, you cannot get funding. It's just that simple." "It equalizes the playing field so that if you're fighting against an enormously deep pocket, you have the ability to do so," he added. Lamb used the lawsuit brought by American wrestler Hulk Hogan against Gawk- er Media as an example. Peter Thiel, a Silicon Valley billion- aire who found himself the sub- ject of a Gawker story, funded the case, Lamb said. "The lawsuit would not have happened without the finan- cing from the Silicon Valley bil- lionaire," he said. From litigation funding, the panellists turned to whether law firms should insource liti- gation support, including new technology. Anne Glover, a practice group leader of an e-discovery and document management team with Blake Cassels & Graydon LLP, trumpeted the value of keeping litigation sup- port insourced. Glover said that as the dis- covery stage of litigation gets larger, it is important to have control of the entire process. "Without control of the en- tire process, that stage can com- pletely get out of control and you can lose sight of it," she said. The absence of that control can result in some cases never going forward because discovery would cost so much, she said. When clients have concerns over who is seeing their docu- ments, confidentiality can also become an issue when document review is outsourced, she said. She said vendors can also often go overbroad or over-col- lect, making them expensive. "Sometimes, you don't know what you're being charged for," she said. "Bringing it in-house al- lows you to control those costs and then you don't see those monthly bills from a vendor," she added. Lamb said he believes docu- ment review and other process work can be done less expen- sively by other entities than a law firm. "The quality of control pro- vided by [and] the quality of work provided by the third- party entities is substantially superior, demonstrably superi- or to that provided by law firms, with exceptions," he said. Lamb said law firms do not meet security standards, but vendors do. "They're attuned to that problem. So you've got vendors who have NSA-level security and technology being used to reduce the size of piles of docu- ments that need to be reviewed and law firms I don't think can keep up with that, nor do I think they should." Glover said that while there are vendors who are cheaper, they are not necessarily very re- liable at document review. "We are more expensive, but we add value," she said. "We use contract lawyers from vendors all the time, and we double check, and triple check, and always check their work and we find errors." Allison Speigel, a commercial litigator at Speigel Nichols Fox LLP, said document review and the general state of developing technology in-house in law firms should not be lumped together. She said that while big proj- ects such as document review could be shopped out to ven- dors, all law firms should be doing more to enhance their in- house technology, such as get- ting rid of fax machines. "That to me is crazy. Fax ma- chines are a relic of the past and law firms and the rules of civil procedure need to move for- ward into the present day." Rounding out the discus- sion was a debate over whether lawyers should offer f lat fees to clients in complex litigation matters. Lee encouraged lawyers to stay away from offering a f lat fee for complex litigation, as one never knows how long it may take. "Let's face it. Commercial litigation is full of motions. You don't know what's going to hap- pen next," he said. "So if you're going to take a case on for a block fee, then you've got to be out of your mind." Lee added that lawyers have a responsibility to tell their cli- ents if a case is not going to be straightforward. Speigel said litigation is not more unpredictable than many other things that people have figured out for which to set a fixed price. "There are construction projects that are worth hun- dreds of millions of dollars that are set at a price, despite the fact that construction is plagued with uncertainty," she said. "The insurance industry exists to price uncertainty, so it can't be impossible to price. I think it's more correct to say lawyers don't know how to price." Lamb, who is considered a thought leader on alternative fees in litigation, has been of- fering f lat fees to clients since founding his firm in 2008. "It's not even a debatable issue anymore, frankly," he said. Lamb said the issue is not whether lawyers can do it but whether they will survive if they do not. Year by year, more clients are being attracted to fixed fees, he said. "Clients need to know exact- ly how much something is go- ing to cost in litigation," Lamb said. "If you are not pricing that way, then the clients are going to take business from you and give it to people who are." LT Patrick Lamb (left) and Gary Luftspring (right) participated at a recent Advocates Society about next steps for the Canadian legal industry. Photo: Alex Robinson NEWS REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! AVAILABLE ONLINE AND IN PRINT With more than 300,500 page views and 100,000 unique visitors monthly canadianlawlist.com captures your market. 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