NEWS
Monday, February 23, 2015 9
ABS: Why Students Care
Alternative Business Structures Hold a Lot of Promise for Both a New
Generation of Legal Professionals and the Society They Will Serve
doug judson › contributor
R
ece n t ly, t h e l aw Society of Upper
Canada (LSUC) called for input on
whether (and to what degree) it should
allow alternative business structures
(ABS) for the delivery of legal services in Ontario.
The profession has taken a particular interest in a
paper on the topic from the Law Students’ Society
of Ontario (LSSO), which favours ABS. With some
caveats and cautions, the LSSO concluded that permitting non-lawyer ownership provides both a
compelling opportunity to improve access to justice
and a strong business case for legal enterprise. We
encouraged LSUC to adopt a liberal approach to ABS,
with necessary regulatory intrusions to address
valid professionalism concerns.
The regulatory objective
If the response of the legal Twitterati is any signal,
it appears that lawyers remain divided on the subject. At minimum, many opinions remain in chrysalis. Some of those who favour the status quo have
u n fortu nately
chosen not just
to challenge our
thoughts on the
business of law,
but i nstead to
undermine the LSSO’s standing to participate in
the discussion in the first place. It is, sadly, not an
uncommon approach.
By the same token, perhaps the pushback on ABS
indicates that we are on to something. It also suggests that those opposed to ABS are discounting
our shared concern for the longevity and relevance
of the profession we will soon join. These critics
seem content to overlook the Law Society’s invitation for comments from stakeholders and its mandate to make decisions that reflect the interests of
the public - both groups in which the LSSO is conveniently situated.
That said, our ABS ideas are no radical manifesto.
To an extent, our paper is a restatement of the profession’s governing legislation. Read together, sections 4.1 and 4.2 of the Law Society Act requires
the Law Society to carry out its regulatory functions in alignment with the public interest, access to
legal services, and access to justice principles. These
objects are not just peripheral goals - they provide
the rubric that ABS ought to be scored against. ABS
furthers these objectives by allowing a wider array
of service providers, service models, and efficiency
gains. Greater choice for consumers and competition on new dimensions is inherently in the public
interest. Even if permitted by LSUC, adopting a new
structure is not mandatory for individual firms. In
the U.K., where legislation allows ABS, there are
presently just over 300 ABS registrants, evincing a
continued place for traditional structures.
Back in Ontario, our Act goes on to specify that
restrictions on who may provide particular legal
services must be proportionate to the significance
of the regulatory objectives sought to be realized.
The language suggests that the question before the
Law Society is not whether to liberalize the range of
permitted business structures, but rather to examine whether the regulatory objective at stake justifies the continuation of a complete ban of common
business structures that are available in other industries. This is particularly so in light of less imposing
rules in jurisdictions with similar legal traditions,
and compelling evidence that ABS has made a positive impact on legal services within those borders.
It seems unlikely that “because that’s the way it’s
always been” satisfies the necessary threshold. Such
parapets may be crumbling.
Those counting on the white knight of professionalism or the sanctity of duties to clients and courts
to protect the status quo may be similarly disappointed. These legal values can be reinforced by
targeted rules, which other jurisdictions have implemented successfully. In New South Wales, Australia,
for example, professionalism-related complaints
have actually decreased with the onset of ABS.
Others protest that the areas of law most likely to
be subsumed by new ABS-powered industry participants are not those where individuals experience
challenges to accessing legal services. This might be
because some of
those areas have
become compulsory steps in various transactions.
These critics also
fail to acknowledge that all innovation needs a foothold. Civilization would not have come very far had
the first wheel been discarded for lack of inflated
rubber, or the low fruit was left to rot for want of
a ladder. Even the most primitive service improvement carries some public interest virtue, so the
threshold to find value in permitting ABS may not
be monumental.
“. . . ABS may signify a progressive
culture shift.”
A renewed opportunity
Yet, debates about statutes and professional regulations don’t strike at the heart of students’ interest
in ABS. Rather, our interest is rooted in our enthusiasm and ambition for improving the delivery and
affordability of legal services and the accessibility of
law and justice. Full stop. For many of us, the desire
to be part of ‘big changes’ and to make a systemic
impact on social, equitable, and economic issues
was our primary motivation for pursuing a legal
career to begin with. Today’s law schools contain a
more selective and accomplished crop of students
than ever before, and their applications and studies
reflect a desire to influence and reshape institutions,
industries, and society. The legal industry itself is
more of a ‘usual suspect’ than an exception to our
axe-grinding ambitions. We idealize a conception of
law that is [ܙH \