Response of the County of Carleton Law Association. to the. Law Society of Upper Canada=s

Transcription

1 Response of the County of Carleton Law Association to the Law Society of Upper Canada=s Final Report of the Sole Practitioner and Small Firm Task Force, March 24, 2005 Respectfully submitted October 5, 2005 Revised October 10, 2005

2 2 Introduction On March 24, 2005, the Law Society of Upper Canada (the "Law Society" or "LSUC") published the Final Report of the Sole Practitioner and Small Firm Task Force (the Final Report ). The Final Report made eleven (11) recommendations aimed at ameliorating the conditions of practice for members of the Law Society who practice as sole practitioners or within small firms, as those terms are defined in the Final Report. The Final Report was presented to Convocation on April 28, Convocation discussed the Final Report and determined that it should be made available to the profession and legal organizations for their written comments on the recommendations. Accordingly, Convocation deferred its decision on the recommendations to October 20, In addition, Recommendation 10 of the Final Report recommends that the Law Society involve other legal organizations in Ontario by sending them a copy of the Final Report. The term legal organizations is defined in the Final Report as those organizations that serve the profession and regularly provide input to the Law Society on policies its develops. These organizations are listed in Appendix 5 of the Final Report. This paper is the response of the County of Carleton Law Association to the Final Report. The County of Carleton Law Association Membership and Mandate Established in 1888, the County of Carleton Law Association ( CCLA ) is one of the oldest, largest and most active county and district law associations in Ontario. Its membership numbers nearly 1,300, comprised primarily of practitioners in private practice, as well as some in-house counsel, lawyers employed in government (all levels), academics and members of the judiciary in the Ottawa area. Since its foundation, the CCLA has operated the Courthouse library in Ottawa, which is now a regional library of LibraryCo. The objective of the CCLA is to advance the interests of its members and promote the administration of justice by: providing an accessible, quality law library to its members; providing quality and affordable continuing legal education programmes to Ottawa and Eastern Ontario lawyers; advancing the interests of its members in the practice of law; promoting liaison among its members, the judiciary and the government of the day; providing guidance and leadership to its members in the challenges facing the profession; and promoting collegiality among its members in the interests of the profession.

3 Traditionally, the CCLA has served its members as a grass roots organization providing comprehensive continuing legal education (CLE) programmes and library and legal research support facilities. In addition, it plays an important role in public education and government lobbying initiatives. Most importantly, the CCLA has been the primary agent for the establishment, continuation and maintenance of a collegial and cohesive Ottawa Bar. 3 Composition of CCLA Membership Although the CCLA serves a largely urban membership, the composition of its membership parallels the membership of the Law Society that is the focus of the Final Report, defined as the Target Group. In the Final Report, the Target Group is broken down into the following subgroups: Sole practitioners alone. Practitioners who practice alone without other lawyers in the same office space. Sole practitioners sharing space. Sole practitioners who share office space with other lawyers. Sole proprietors. Sole practitioners who employ up to four lawyers. Partners. Partners practicing in firms of five or fewer lawyers. Employees or associates. Lawyers who are employees or associates in firms of five or fewer lawyers. The CCLA does not categorize its membership into the subgroups identified in the Final Report. However, from its dynamic membership database, the CCLA has estimated the following percentage breakdown of its total membership, using the same subgroup characteristics described in the Final Report: Sole practitioners alone: 390 members of the CCLA are sole practitioners (250 male lawyers and 140 female lawyers). This figure represents 30% of our members. Partners, employees or associates. 399 members practicing in firms comprised of 2 to 5 lawyers (we cannot determine their individual status from our database). (284 male lawyers and 115 female lawyers). This figure represents 30.69% of our members. In combination, sole practitioners and lawyers in firms of two to five lawyers comprise 61% of our membership. Anecdotally, the CCLA is seeing an increase in the number of recent new calls, not being hired back or joining local firms, but rather going out on their own as sole practitioners and requiring additional support and resources from our Association. Services to Membership The CCLA provides a range of specific services to its membership. Many of these services

4 4 directly or indirectly support sole and small firm practitioners. Some of the CCLA s principal services are described below. Continuing Legal Education (CLE) The CCLA provides up to 20 continuing legal education programmes and legal education materials, including four annual conferences covering recent developments and best practices in civil litigation, criminal litigation, family law and solicitor/business law. Most of these programmes include a networking component aimed at promoting the exchange of information and collegiality among the Ottawa and East Region Bars. In 2005, the CCLA re-established the New Lawyers & Articling Students Group to organize CLE programmes to address the particular needs of this segment of our membership. Ninety new lawyers and articling students recently attended our CLE on Rule 77: Case Management and on Rule 76: Simplified Procedure. The CCLA provides an annual series of four (4) mentoring dinners for new lawyers. This programme provides sole and small firm practitioners opportunities to converse with senior members of the Ottawa Bar and members of the judiciary on specific issues relevant to their practices. Since its inception, this programme has been very popular and focuses on many topics of interest to sole and small firm practitioners. LawPRO has approved the mentoring dinner series for CLE credit. Library and Information Services The CCLA library has a collection of over 7,200 texts and 550 law report and periodical titles. Members and their articling students have access to the library around-the-clock (24/7). The CCLA provides its membership with free internet access on seven (7) public access computers. The library, through LibraryCo. funding, provides: professional reference staff, legal research services, free QuickLaw, CCH, Canada Law Book, and ecarswell searching on electronic products at the public access computers located in the library, as well as delivery of cases and other materials by , facsimile transmission, regular mail or interlibrary loan. The CCLA also provides the Ottawa Bar with updates on recent cases, web sites and information sources of interest to its membership. The CCLA maintains a website with useful legal links, in addition to other information of use to the profession. The CCLA s library and information services provide sole and small firm practitioners comprehensive, efficient and affordable legal research services, delivered by professional and experienced library personnel.

5 5 Lobbying The CCLA has representation on various local and regional bench and bar committees. It organizes meetings on major issues and developments as they arise, such as legal aid, the regulation of paralegals and the introduction of amendments to the Rules of Civil Procedure. The CCLA also utilizes its bulk service to consult with lawyers in Ottawa and the East Region and to obtain their input on important matters in an efficient and timely manner. Publications The CCLA has established a bulk service that provides the Ottawa and East Region Bars with information of particular interest. This service is similar to the service described in the Final Report as a listserv. 1 Important practice notices and directions are distributed by bulk and posted on the CCLA website for easy access by the lawyers. The CCLA publishes an annual Ottawa and Eastern Ontario Lawyers Directory (in print and on CD-ROM), which lists the names and contact information of practitioners, judges and courts administration personnel in Ottawa and Eastern Ontario. The CCLA also publishes periodically a CCLA Bulletin to paid members providing them with information about legal matters and activities of interest. Other Services The CCLA also provides: a volunteer mentor service to new lawyers requiring practice-related assistance; notices, practice directions and similar information to lawyers on behalf of the Ottawa and East Region judiciary; membership discounts in health clubs and insurance policies through agreements with Ottawa-area businesses; and access for members to emergency short-term childcare. 1 I.e., a collection of addresses from subscribers with common interests through which messages (sharing or seeking information) from one subscriber are automatically redistributed to all the other subscribers. See Footnote 26, page 62 of the Final Report. The CCLA bulk service is used to disseminate information about legislative updates, changes in practice and procedure, employment possibilities, shared space arrangements, continuing legal education programmes and other vital information of relevance to its membership. The CCLA has a policy and protocols in place for the use of this service on its website.

6 6 The CCLA Committee Establishment of the Committee President Rob Nelson recognized the significance for the CCLA s membership of the recommendations contained in the Final Report when it was published in April He proposed to the CCLA s Board of Trustees that a committee be struck to examine the recommendations and provide the CCLA s response. The Executive and Board of Trustees of the CCLA accepted the proposal and the committee was established in April Members of the Committee Vice President Tom Conway was appointed Chair of the Committee. CCLA Trustees Peter Annis, Mary Jane Binks, Q.C. and Ron Guertin were also appointed to the Committee. The CCLA solicited the participation of its membership in the work of the committee. The following CCLA members participated in the preparation of this response: Tom Conway, Chair. Tom Conway is a litigation partner in the Ottawa office of McCarthy Tétrault LLP. He was admitted to the Bar in 1989 and first elected as a trustee of the CCLA in He has sat on various CCLA committees including chairing the Civil Bench and Bar Committee. He is the current Vice President of the CCLA. Peter Annis, Trustee. Peter Annis is a litigation partner and mediator in the firm of Vincent Dagenais Gibson LLP/s.r.l.. He was admitted to the Bar in 1974 and first elected as a CCLA trustee in He provides lawyer services in French and English and is a former President of AJEFO. Mary Jane Binks, Q.C., Trustee. Mary Jane Binks is a litigation partner, primarily in the family law practice area, in the Ottawa office of Gowlings LLP. She was admitted to the Bar in 1971 and has been a trustee of the CCLA since She has been a member of various CCLA committees including the annual Montebello Civil Litigation Updated Conference Planning Committee, and the Family Law Bench and Bar Committee. Ron Guertin, Trustee. Ron Guertin is a sole practitioner, specializing in criminal defence. He was admitted to the Bar in 1976 and first elected as a trustee of the CCLA in He has been a member of various CCLA committees including the annual Criminal Law Conference Planning Committee. Negar Achtari, Sole Practitioner. Negar Achtari is a sole practitioner who was admitted to the Bar, and started her practice, in She practices immigration law in Ottawa.

7 John Callan, Partner. John Callan is a real estate, corporate and commercial law practitioner in Callan Honeywell LLP, a two-person firm. He was admitted to the Bar in In addition to practicing law, he is also a real estate agent. Jacques Côté, Sole Practitioner. Jacques Côté is a sole practitioner with a general practice. He provides lawyer services in French and English. Jacques was admitted to the Bar in Cathy Crosby, Sole Practitioner. Cathy Crosby is a part-time, real estate and wills & estates practitioner. She was admitted to the Bar in 1987 and is a member of the CCLA s Real Estate Committee, which was instrumental in creating standardized real estate forms and ereg practice and title searching tips for Ottawa practitioners. Dee Fetzko, Real Estate Associate. Dee Fetzko is a real estate associate in the law firm of Lang Michener LLP. Dee was admitted to the Bar in Erik Grzela, Sole Practitioner. Erik Grzela is a sole practitioner who was admitted to the Bar in 2004 and started his own law practice in the Market area of Ottawa in the same year. Jennifer Jolly, Litigation Associate. Jennifer Jolly is a litigation associate in the law firm of Hamilton Appotive LLP, a 9-lawyer Ottawa law firm. She was admitted to the Bar in Jennifer Jolly is a member of the annual Montebello Civil Litigation Updated Conference Planning Committee. James Leal, Partner. James Leal is a corporate-commercial practitioner in the law firm of Hebert Leal. He practices in a small solicitor firm, as that term is used in the Final Report. James Leal was admitted to the Bar in 1984 and is a former trustee and President of the CCLA. He has served on many committees including the provincial ereg committee, the CCLA Real Estate Committee (chair) and the annual Montebello East Region Solicitors Conference (chair). Joy Overtveld, Partner. Joy Overtveld is a partner in Milton Geller LLP, as 7-lawyer law firm. She was admitted to the Bar in 1993 and has practiced primarily as a sole practitioner prior to joining this firm. As a sole practitioner, part of Joy Overtveld s practice area was landlord and tenant litigation. She now practices litigation and mediation. 7 Mandate of the Committee The Committee was established to study the Final Report, consider its recommendations and recommend to the Board of Trustees the CCLA s response to the Final Report and how the CCLA might implement the recommendations, where appropriate, for the benefit of its membership.

8 8 Specifically, the Committee: considered the recommendations of the Final Report; formulated and recommended specific responses to the Final Report and specific responses to the Final Report s recommendations; consulted with the CCLA membership, particularly those members of the CCLA who are sole practitioners or who practice in small firms; and, solicited and compiled the views of the membership on the Final Report s recommendations. Work of the Committee The Committee solicited the views of the CCLA membership at the CCLA s annual East Region Solicitors Conference in May 2005 and at other CLE events sponsored by the CCLA. It also publicized its activities through bulk messages and in the CCLA Bulletin. The CCLA s Real Estate Committee was specifically consulted. It has been very active on issues affecting sole and small firm practitioners who practice real estate law in Ottawa. The Committee ensured that bulk s, containing the weblink to the LSUC s Final Report, were sent out numerous times to the lawyers in Ottawa and the East Region, soliciting their comments. The Committee held several meetings and exchanged views on the CCLA s draft response over the course of the summer. The Committee held a Town Hall Meeting on September 19, 2005 to solicit the views of the membership on this response. This report was submitted to the Board of Trustees and Executive of the CCLA in September 2005 and was approved for submission to the LSUC. CCLA Position Generally on the Final Report The CCLA endorses and agrees with the comments made in the Introduction to the Final Report. Sole and small firm practitioners play an integral and central role in the delivery of legal services to the majority of Ontarians. Sole and small firm practitioners provide the large majority of the public with access to justice. Without sole and small firm practitioners, our legal system could not function and our legal profession would soon lose its independence. Maintaining, supporting and promoting sole and small firm practitioners is not only in the interests of the profession generally, but also in the

9 public s interest. The CCLA believes that maintaining, developing and supporting sole and small firm practices should not be just one of the Law Society s important priorities, it should be the Law Society s first priority. The CCLA welcomes the Final Report as the first important body of research on this important segment of the legal profession and Ontario. It welcomes the recommendations of the Final Report as important first steps in addressing the needs of these members of the Law Society. The recommendations of the Final Report only begin to address the challenges faced by sole and small firm practitioners in a profession that has undergone significant change in recent years. The findings of the Final Report suggest that much work is yet to be done if the profession generally and the Law Society in particular are to ensure the future viability of the Target Group. The CCLA agrees that the Law Society has an essential role to play in supporting the Target Group. Likewise, grass roots legal organizations like the CCLA have an equally essential role to play. If the Law Society and organizations like the CCLA are to be successful in supporting the Target Group, they must work cooperatively to implement the recommendations of the Final Report and to define their specific roles in initiatives aimed at supporting sole and small firm practitioners. 9 In the view of the CCLA, special attention must be given to: The Role of the Law Society in Future Initiatives. The CCLA supports the recommendations of the Final Report insofar as they define the Law Society s role as one of liaison, facilitation and coordination. If the Sole and Small Firm Practitioners Unit functions largely as a facilitator for the development of a range of services for Sole and Small Firm Practitioners and as a coordinator for these services, then substantial progress will have been made towards the goals of the Final Report. The CCLA wishes to emphasize, however, the importance of avoiding top-down solutions to the challenges identified in the Final Report. The Sole and Small Firm Practitioners Unit will not succeed if it dictates solutions to the Target Group. The Role of Law Associations in Future Initiatives. The CCLA and other district and county law associations have established infrastructures, services, programmes and social networks already in place for the delivery of the enhanced services and supports recommended in the Final Report. If the goals of the Final Report are to be met, the CCLA and other similar law associations must be the principal sources of, and vehicles for, the development and delivery of the types of support envisioned by the Final Report. They will provide the impetus for bottom-up, practical and meaningful assistance to the Target Group.

10 10 The Role of Funding in Future Initiatives. Throughout the Final Report and throughout the CCLA s deliberations on the Final Report, funding and financing sole and small firm practices were and are recurring themes: The Legal Aid Tariff is woefully inadequate. The inadequacy of the Tariff combined with the Criminal Law Office pilot project, introduced into Ottawa in 2003, has decimated the ranks of the criminal defence bar in Ottawa, a bar composed almost exclusively of sole and small firm practitioners. The financial circumstances for many of these practitioners have become so precarious that some now question whether the continued independence of the Ottawa Criminal Defence bar is viable. Financing issues in civil justice matters. The inability of sole and small firm practitioners to finance increasingly complex and lengthy civil cases has created a crisis in access to justice for the majority of Ontarians. In the words of M. James O Grady, Q.C., a former small firm practitioner in Ottawa: I begin with the observation, hardly profound, that we are still a very long way from solving the financial aspects of access to justice. Indeed, anyone spending 16 years in a boutique litigation practice as I have just done could not have missed seeing that many middle-class and working-class clients or potential clients cannot sustain the costs which are unavoidably involved in pursuing one s rights in the modern litigation process. Ironically enough, the financial difficulties which such clients have usually arise from the very circumstances which urgently require redress in the courts. And so a circular process begins, in which the financial solution depends upon a solution in the courts and vice-versa. Sometimes the heartbreaking decision must be made to terminate apparently-meritorious proceedings because it is simply impossible to see how they can be sustained. Much more often the lawyer is called upon, in an excess of noblesse oblige, to finance the proceedings or much of them through to their conclusion from his own pockets, which are not bottomless either. And sometimes a jerry-built crazy-quilt of temporary expedients is put into place, with both lawyer and client hanging on by their fingertips and hoping they can achieve a soft landing before the crash. In all cases there are delays while client and lawyer catch their respective breaths. It s no way to run a business. And if, as we should, we really value justice and access to justice as necessary and important

11 11 social goals, it s an immature and reckless approach to achieving them. It s not good enough and we must try to do better. 2 Adequate financing of sole and small firm practices and adequate funding of the cases that are undertaken by these practitioners are key to overcoming the challenges faced by the Target Group. If financing and funding challenges are not squarely met and overcome, average Ontarians will continue to be denied access to justice. Meeting and overcoming these challenges will require a multi-faceted, but coordinated approach by the Law Society and law associations such as the CCLA. It must necessarily involve advocacy and lobbying of governments, financial institutions and the public at large to effect attitudinal changes. The $300,000 proposed for the initial start-up costs of the proposed Sole Practitioner's Unit is a good start, but the Law Society must recognize and acknowledge that much more funding than this will be required to implement long-term solutions to the challenges faced by the Target Group. CCLA Position on Specific Recommendations in the Final Report Recommendation 1: Establishment of a Sole and Small Firm Practitioners Unit The Final Report recommends the establishment of a Sole and Small Firm Practitioners Unit within the Professional Development, Competence and Admissions department of the Law Society. The unit would be dedicated to sole and small firm practitioners and would be headed by a management and technology advisor. The unit would provide active assistance through practice management advisory services, continued development of supportive tools and communications of available practice resources. The Final Report also recommends that the unit liaise with LawPRO and other legal organizations. While the goal of this recommendation is laudable, the CCLA has reservations about the proposed mode of delivery for the achievement of these goals. The CCLA questions whether such a unit can effectively deliver the supports necessary to address the problems identified in the Final Report. If the unit is intended to be a facilitator for enhanced services, programmes and other initiatives aimed at the Target Group, then the CCLA would support the creation of the unit. However, the recommendation contemplates the creation or expansion of services and service 2 Letter from M. James O Grady, Q. C., May 5, 2005.

12 12 personnel, which would be located physically at the Law Society in Toronto, a great geographical distance from the majority of practitioners that the unit is intended support. It would appear that the proposed unit will necessarily depend on advances in technology and web-based tools to implement its mandate. The Law Society has depended on a similar strategy for the delivery of its CLE programmes. Certainly, a technology-based strategy has a place in addressing some of the issues identified in the Final Report, particularly in rural areas of the Province. However, technology-based solutions are not a panacea and will be wholly inadequate for resolving the central problems identified in the Final Report, such as the sense of isolation that some sole and small firm practitioners report. In fact, a credible argument can be made that more web-based tools will compound the sense of isolation identified in the Final Report. Little consideration is given to the significant role that county and district law associations can play in providing solutions for many of these problems. The proposed liaison function of legal organizations, such as the CCLA, appears almost as an afterthought and describes a role for legal organizations like the CCLA that is not adequate to the challenge. The Final Report does not recognize or acknowledge the significant infrastructure already in place in many parts of the Province for the delivery of enhanced services to sole and small firm practitioners. As a local law association, the CCLA has a long track record of providing the type of support to its membership that the proposed unit would provide its membership from a distant location in Toronto. The Law Society should recognize that a grassroots infrastructure already exists in many district and county law associations and should also acknowledge that these associations are in a better position than the proposed Sole and Small Firm Practitioners Unit would be for the delivery of these additional support services to sole and small firm practitioners. Legal organizations should be the primary service-delivery vehicle. They should play more than a liaison role. An additional concern that has been expressed by the CCLA s membership with this particular recommendation, and indeed with the Final Report generally, is the ability of the Law Society to deliver the proposed additional services effectively because of its principal role as the regulator of the profession in the public interest. Many practitioners perceive the Law Society as being unwilling or unable to support practitioners on the immediate and pressing issues they face. There is a natural antipathy between practitioners and the regulator that many CCLA members believe will be difficult for the proposed unit to overcome in order to be truly effective. The CCLA suggests that the Law Society give further serious consideration to the mode of delivery of services directed at sole and small firm practitioners and consider whether, in some instances, the more appropriate vehicle for the delivery of these services is the local district or county law association, whose sole mandate is to support its members in the geographical locations in which they practice.

13 13 Recommendation 2: Tools That Address Key Factors for Target Group Lawyers Part of Recommendation 1 is the hiring of a full-time counsel. In Recommendation 2, the final report recommends that this counsel be directed to investigate the ongoing development of practical tools relating to planning and launching practices, client and business development, and other aspects of planning and managing a successful professional business. The CCLA strongly endorses the goal of this recommendation, but again questions the efficacy of the proposed mode of service delivery. If the counsel s mandate is to be truly effective, it must be specifically directed towards consulting with the Target Group and its law associations and developing the tools the Target Group needs, not the tools the Law Society believes the Target Group require. For example, many members of the CCLA commented positively in particular on the development of seminars in a box. These generic seminar packages on such topics as real estate, wills and estates would provide valuable marketing and public education tools for sole and small firm practitioners, who simply do not have the time and resources to develop such materials on their own. However, many CCLA members question whether effective marketing tools of this nature can be developed without significant input from local practitioners. The development of practical tools and supports on choosing practice location and determining the number of practice areas, in particular, would benefit greatly from close collaboration with local district and county bar associations. 3 Recommendation 3: Investigate Active and Passive Matching of Target Group Lawyers The Final Report recommends that the counsel also investigate active and passive matching to connect target group lawyers with others in the Target Group and with other potential groups and individuals, including non-lawyers, with whom they might share resources and provide coverage for temporary work absences. The implementation of this recommendation should, in the case of the CCLA, be undertaken by the law association. The CCLA already offers similar services to those identified in this 3 It has been suggested that the Law Society also consider a private sector vehicle that could be mandated to provide start up consultancy services for sole and small firm practitioners. Models for such services already exist in the medical profession. These models should be studied to determine whether they might have some application to the legal profession.

14 recommendation. For example, the CCLA already connects Target Group lawyers to one another, not by the use of a listserv, but through various committees and activities it sponsors, such as the real estate committee. The CCLA has an established mentoring programme. It already provides Target Group participants in its CLE programmes with networking opportunities. Nearly all of the CCLA s CLE programmes have a significant networking component. 4 The Law Society should provide financial and other support to the CCLA and other legal organizations to expand their existing programmes in these areas. The recommendation of matching Target Group lawyers with other potential non-lawyer groups and individuals is meritorious. The CCLA believes that both the Law Society and the CCLA should further explore the feasibility of integrating or bundling sole and small firm practices with other compatible professional businesses such as mortgage and real estate brokerage services. This approach may well strengthen certain practices, such as real estate, in markets where legal services have become effectively commoditized. 14 Recommendation 4: Law Society Start-up Workshop The original recommendation in the Final Report recommended that all lawyers intending to practice as sole practitioners should be required to take a mandatory Law Society Start-Up Workshop. When considering the Final Report, Convocation decided to change this recommendation specifically to indicate that the Law Society has an expectation that all lawyers intending to practice as sole practitioners will take the Law Society start-up workshop. The Final Report also recommends that counsel investigate and provide options for various aspects of the programme design, including advantages and disadvantages of a live or videotaped programme. The CCLA strongly believes it should have a significant role in implementing this recommendation as it concerns lawyers intending to practice as sole practitioners in Ottawa. Start-up workshops should be delivered cooperatively through the infrastructure of the CCLA. CCLA members should be invited to participate in and deliver these workshops. The CCLA can provide invaluable components to start-up workshops for sole practitioners, such as grassroots intelligence, a supportive network of professional colleagues and an early opportunity for sole practitioners to become familiar with and integrated in the Ottawa Bar. The CCLA received many comments from its membership on the quality of the present start-up 4 Indeed, the lack of networking opportunities has been one of the CCLA s criticisms of the Law Society s expansion of its CLE programming, programming that often duplicates or overlaps with live programming offered by the CCLA.

15 workshop. None of the comments were positive. Universally, the start-up workshop was characterized as useless. It was cited as a good example of the top-down service that many fear may become typical of the new Small and Sole Practitioners Unit, if sole and small firm practitioners and their law associations are not actively engaged in the development and delivery of this and other contemplated workshops. 15 Recommendation 5: Communications Strategy The Final Report recommends that the Law Society should develop an ongoing communication strategy to inform and educate lawyers, law students and articling students on the opportunities, challenges, and the key success factors of sole and small firm practice. As a component of this strategy, the Final Report suggests consideration be given to enlisting legal organizations and successful sole and small firm practitioners to speak about the opportunities and educate about the challenges of sole and small firm practice. Large firms have the financial resources to recruit and market their firms to graduating law students. However, many law students are actively looking for opportunities outside of the large firm experience. Career Development Officers at the law schools are very interested in developing opportunities with the Target Group. Better communication is required between small firms, the Law Society and the law schools to promote the values of small firm practice and experience. While the CCLA agrees with this recommendation, it also recommends that the Law Society do more than simply develop a communications strategy. The barriers faced by the Target Group in attracting young lawyers are not only related to difficulties communicating the opportunities available within the Target Group but in fact are more strongly related to the lack of actual opportunities available and the difficulties faced by the Target Group in creating attractive opportunities. The Law Society should actively facilitate real opportunities through which young lawyers can gain meaningful contact with and access to the Target Group. The Final Report also identified that (1) sole practitioners and small firm practitioners are somewhat older than lawyers as a group; (2) younger lawyers are not entering the target group practice as frequently; and (3) outside urban areas the absence of younger lawyers is more prevalent. Succession planning is important to senior lawyers in small firms or sole practice who want to slow down and retire. These lawyers should be encouraged to participate in creating opportunities for articling students and new members of the profession. Succession planning starts with the hiring of an articling student, with a view to grooming a professional business associate and the eventual successor to the senior lawyer s practice. Financial assistance and

16 support from the Law Society should be made available to encourage and facilitate this transition. Concern was expressed that some senior lawyers are staying in practice much longer than they actually desire because succession planning alternatives are financially or administratively out of their grasp and they feel a sense of loyalty to their clientele. If new and young lawyers can be attracted to small practices in under-serviced communities (either geographic or cultural), this will go a long way towards both sustaining the Target Group currently serving these areas and to ensuring the crucial role played by the Target Group in ensuring access to justice for these communities. The Law Society should work closely with existing legal associations and law faculties to develop strategies which actively engage the resources of local law associations, bar associations and law school career development offices. The barriers faced by the Target Group in creating employment opportunities for new lawyers are both administrative and financial. The following are some practical suggestions as to how the LSUC might facilitate opportunities to connect new and young lawyers with individuals practicing within the Target Group. 16 Administrative Barriers. There is a significant administrative burden associated with the employment of an articling student. The limited resources available to sole and small firm practitioners makes this administrative burden a singularly unattractive factor when they consider hiring an articling student. By reducing some of the administrative requirements, Target Group practitioners may be more able and willing to participate in initiatives that would allow them to connect with new and younger lawyers. In addition, reducing administrative requirements may also help to reduce their associated financial burden. Cooperation with the Law Schools. Law schools devote significant resources towards recruitment of their students. For example, the University of Ottawa, Faculty of Law (Common Law) has recently established a new staff position specifically to assist law students in finding articling positions outside of the large firm environment. Law schools would be open to working more closely with Target Group practitioners and the Law Society to facilitate the hiring of articling students by the Target Group. Law School Career Development Offices should be asked to promote opportunities within the Target Group and assist in matching students to these opportunities. Law schools could assist with facilitating part-time or split-articling opportunities for practitioners who might be interested in only a part-time articling student. Sharing a student by creating rotations of 3 to 4 months duration between lawyers working in different fields (i.e. Real Estate, Corporate & Commercial and Estates) would be a viable, practical and economic solution - for both the lawyers and the student involved. Role of Local Law Associations. Local law associations and bar associations could also be invited to join in a network with the Law Society and the law schools to help facilitate and promote creative articling opportunities.

17 17 Recommendation 6: Continue to Pursue Initiatives Designed to Enhance the Public s Access to Lawyer Services The Final Report recommends that the Law Society continue to pursue initiatives designed to enhance the public s access to lawyer services both independently and, where appropriate, with other legal organizations. The CCLA supports this recommendation, with one caveat described below. In particular, the CCLA endorses the following specific recommendations: increasing availability of legal aid to individuals; enhancing the legal aid tariff; and initiating discussions for the expansion of income tax deductibility for legal fees incurred by individuals. The CCLA does not necessarily endorse every specific initiative designed to enhance the public s access to lawyer services if these initiatives effectively undermine the practices of sole and small firm practitioners. For example, in Ottawa, the Ontario government introduced a pilot project in 2003 intended to enhance the public s access to lawyer services as an alternative service model. It created the Criminal Law Office, under the direction of Legal Aid Ontario, that employs lawyers directly to provide criminal defence services formerly provided by an independent Criminal Defence Bar in Ottawa. In effect, the Criminal Law Office has resulted in fewer criminal defence lawyers, doing more work for less money. Ultimately, the model will not enhance the public s access to lawyer services at all, but will impair that access. The CCLA cannot support these types of initiatives, which effectively undermine sole and small firm practices on the false assumption that increasing the public s access to lawyer services can be achieved by paying fewer lawyers less money to do more work. As far as this recommendation is concerned, the CCLA urges the Law Society to recognize and affirm that, as the regulator of the profession in the public interest, it has a significant role to play in influencing government policy in this area. The Law Society must recognize and affirm that issues affecting sole and small firm practices cannot be resolved without exercising significant influence over public opinion and public policy in the formulation and development of initiatives designed to enhance the public s access to lawyer services. Recommendation 7: Continue to Investigate the Issues of Shortages of Lawyer Services The Final Report recommends that the Law Society, in conjunction with relevant legal organizations, should continue to investigate the issues of shortages of lawyer services and options for addressing the shortages.

18 This recommendation is aimed at shortages of lawyers in certain geographical communities, demographic and cultural communities or practice areas. The CCLA perceives that the problems addressed by this recommendation are not as prevalent or as acute in Ottawa as they are in other areas of the Province. However, the CCLA also perceives that there is a shortage of lawyer services in certain cultural communities, comprised largely of recent immigrants settling in Ottawa, and in some linguistic groups. The CCLA perceives that these groups may require specialized legal services in the areas of immigration and family law. This recommendation presents an important opportunity for the Law Society to work cooperatively with practitioners in the Target Group, local legal organizations and law school career development offices to implement some of the CCLA s comments and suggestions on Recommendation 5. The CCLA endorses the specific recommendations that consideration be given to: statistical study of the issues; regional opportunities to establish practices; and possible incentives to practice in under-serviced regions or practice areas. 18 Recommendation 8: Continue to Educate the Public The Final Report recommends that the Law Society continue to educate the public about the integral and valuable role lawyers played in ensuring that the public s needs are met. The CCLA strongly endorses this recommendation. In recent years, the Ottawa real estate bar in particular, has witnessed the gradual commoditization of lawyer services by financial institutions, title insurers, real estate agents and brokers and by certain members of the real estate bar itself. As a result, the public now perceives lawyer services in real estate as an unnecessary and unwelcome expense, to be minimized or eliminated entirely from the typical real estate transaction. The public needs to be educated, or more correctly, needs to be re-educated on the value of lawyer services in real estate transactions. While the CCLA supports this recommendation, the CCLA does not believe that the recommendation goes far enough. The CCLA endorses a two-pronged strategy that would involve the development of public education and marketing tools that can be employed with some modification by sole and small firm practitioners in their particular markets, combined with a larger public awareness campaign of the kind undertaken by the legal profession in Québec or by other professional organizations, such as the certified management accounting profession in Ontario and elsewhere. Unlike other professions, the legal profession, perhaps as a result of its administrative or regulatory structure, has not adequately responded to the erosion of its status in the public s estimation caused by competitive and other forces.

19 19 Recommendation 9: Equity and Aboriginal Issues Committee Consider the Final Report The Final Report recommends that the Equity and Aboriginal Issues Committee consider the Final Report in the context of its mandate and make possible recommendations. The CCLA supports this recommendation. Recommendation 10: Encourage Legal Organizations to Continue Their Efforts to Assist Lawyers The Final Report urges legal organizations to continue their work on educating financial institutions in developing affordably-priced health, dental, investment and retirement coverage. The CCLA supports this recommendation, but suggests that accomplishing these laudable goals will require a coordinated, focused approach by and among legal organizations. In the experience of the CCLA, its efforts in these areas have had limited success because, even as the second-largest county and district law association in Ontario, it does not on its own have sufficient numbers to make significant progress in these areas. Of particular concern to the CCLA s membership is the inability of sole and small firm practitioners to finance practices that, by their nature, require significant investment of capital 5. The problem is particularly acute in civil litigation practices where practitioners are often asked to take on cases for clients without means of paying for the litigation. The inability of these practitioners to finance the significant investment in these cases has prohibited litigants with meritorious actions from gaining access to the courts. Not only are sole and small firm practitioners prevented from practicing in these areas, these segments of the public are being denied access to justice. Recommendation 11: Track Target Group Demographics and Experience The Final Report recommends that the Law Society continue to track target group demographics and experience. The CCLA supports this recommendation. 5 See above, CCLA Position Generally on Final Report, pp

20 20 General Comments During the course of the preparation of the CCLA response, the Committee considered a number of comments and suggestions received from committee members and the CCLA membership at large. Many of these comments and suggestions offer real and practical opportunities for the Law Society to ameliorate the practices of sole and small firm practitioners. Other members have offered other comments and observations on the Final Report, which the Committee has also included as part of the CCLA response. Timing and Volume of Law Society Filings. Many members commented that the Law Society already requires practitioners to file information with the Law Society that is time-consuming and onerous for sole and small firm practitioners. They fear that some of the recommendations in the Final Report may add to this burden. The timing of the filings is also problematic for these practitioners. The Law Society generally requires filings to be made at times of the year when these practitioners are also faced with the tasks of preparing year-end financial statements, income tax returns and other similar legal or administrative obligations for their own practices or on behalf of their clients. A simple adjustment to the timing of filings required by the Law Society would greatly alleviate these pressures by allowing practitioners to complete these tasks over a more reasonable timeframe. Timing of Payment of Law Society and LawPRO Fees. Sole and small firm practitioners told the Committee that most of their expenses are due between January and April. Included in these expenses are Law Society membership dues and LawPRO insurance premiums. The Law Society and LawPRO should consider options that would permit payment of these expenses over time or at different times in the year when cash flow is better. Increasing Billing Limits for Part-Time Lawyers. Part-time lawyers lose the benefits of reduced membership dues and reduced LawPRO insurance premiums if they receive revenues of $60,000 or more per year. The limit has not changed in years. The limit on gross revenues for part-time lawyers should be increased from the present limit of $60,000. Graduated Membership Dues. The disparity between the highest paid and the lowest paid lawyers in the profession has become enormous. Without a doubt, the profession can be fairly characterized as being divided into have and have not practitioners. Nevertheless, lawyers pay membership dues to the Law Society based not on income or revenue, but rather on the distinction between full and part-time employment. However, many have not practitioners work full-time, but still pay the same membership dues as practitioners who have become millionaires from the practice of law. The Law Society should consider rectifying this anomaly by introducing graduated membership dues based on revenue or income. Creating Financial Resources for Real and Substantial Support of Sole and Small Firm Practices (Part 1). The opening paragraph of the Final Report reveals the reasoning for the Law Society s interest in the plight of sole and small firm practices in Ontario:

21 21 Lawyers practicing as sole practitioners or in firms of five or fewer (the target group ) are essential to the provision of lawyer services to the public of Ontario. Ontario has had an independent legal profession for over 200 years. The large law firm practice structure is a relatively recent phenomenon. Sole and small firm practice has been the traditional backbone of the profession. Target group lawyers continue to be at the forefront of the delivery of lawyer services and Ontario, particularly to individuals. From this statement, it is obvious that the Law Society is concerned that the public interest will not be served adequately, and the independence of the legal profession will not have been preserved, unless the practices of sole and small firm practitioners are financially viable and professionally challenging for those lawyers who choose this type of practice. What the Final Report does not address, however, is the flip side of the coin. While sole and small firm practice appears to be less attractive to many practitioners entering the profession, the practices of large firms have become very profitable and very interesting to new members of the profession, especially in the large urban centres of Ontario. There appears also to be a strong correlation between the profitability of a particular practice and the desire of practitioners to enter that practice. This correlation is evident in the evolution of large law firm practices and the erosion of sole and small firm practice. Financial viability and profitability appear to be main contributing factors to this perceived erosion. The CCLA therefore suggests the Law Society, as the only legal organization with the lawful authority to require the payment of membership dues and fees, consider changes to the fee structure with the aim of improving the profitability of sole and small firm practices, including consideration of reduced or graduated Law Society fees and LawPRO premiums based on income. In addition, the Law Society should consider raising additional revenue from membership fees that would be earmarked for the implementation of some or all of the Final Report s recommendations, but also for the establishment of pension funds, parental leave programmes, insurance programmes, marketing and public awareness campaigns and retirement planning aimed primarily at the Target Group. Creating Financial Resources for Real and Substantial Support of Sole and Small Firm Practices (Part 2). The Law Society, through cooperative efforts with other law associations, must give priority to an attempt to persuade the Canadian banking system to provide more accessible and more realistic credit arrangements for sole and small firm practices. The present practices of Canadian banks are entirely commercially-oriented. They lend only against solid 90-day receivables or against 100% secure collateral. They have no desire to participate with lawyers in financing access to justice. Alternatively, the Law Society should attempt to persuade the Canadian banking system to