What does the future hold?

The CBA is actively involved in an initiative called “Emerging Issues in the Legal Profession”. Actually, some of these “emerging issues” have been affecting us for years. What’s really “emerging” is our profession’s response. Encumbered by demanding professional standards and restrictions, and a long history of expectations regarding the profession of law, we struggle amidst the oft-conflicting forces of change and tradition.

The Emerging Issues Report identifies trends such as globalization and technological advances as major influences on the form and delivery of legal services. However, the most important trend isn’t either of these; it is the change in public expectations and attitudes. The Report calls this “the decline in deference to authority”. It may more accurately be described as “the ascent of the consumer mentality”. Legal services are viewed as a commodity, at the mercy of competitive market forces.

No longer is it sufficient to be trained and proficient in the law. Client relations, marketing, line-item accounting and instant, technology-driven responsiveness are but a few of the new requirements of the profession. How we apply those lessons in responding to the ten issues outlined below may well decide what the legal profession looks like in the future.

1. Uniform Task-Based Billing Systems (UTBSS)
Task-based billing describes work done on a file, grouping information by pre-defined tasks with established associated costs. Client demand for this kind of billing has grown, and with it has come a boggling diversity of billing systems. Proponents of a uniform code system say it will promote greater efficiency and improve client relations because it meets the client’s demand to know the bottom line. Opponents say it promotes the perception of legal services as a line item commodity.

2. Alternative Billing Methods
Currently, a lawyer’s productivity, performance and compensation is assessed by the billable hours system. Alternative systems have been proposed to emphasize value and timeliness of service to clients. These systems include: hourly rate (including blended, task-based, or discounted volume rates); fixed fee (by unit of work or a flat fee); and results-based alternatives (e.g. a bonus above a flat hourly rate, based on speed or result; or a percentage, which acts as a risk-sharing agreement and an incentive for performance).

3. Multi-Disciplinary Practices (MDPs)
Multi-disciplinary practices are “one stop shops” where individuals from different professions provide advice and counsel to clients. Multi-disciplinary practices of the “big six” accounting firms are well-established, but the involvement of lawyers continues to be controversial. Opponents say that the public service, independence and other professional aspects of lawyer services could be corrupted and/or diluted through arrangements which focus on law as a business, and non-lawyers as business partners.

4. Client-Partnering
Clients expect more of lawyers. They are aware of their rights as consumers, and their power of choice. In this context, a “partnership model” may be a useful alternative to the classic “supplier” model. Specifically, the lawyer may shift from reactive dispute resolution to proactive dispute avoidance. How the service is delivered--i.e. the value-added role of the lawyer contributing to the achievement of the client’s long-term objectives--is as important as the service itself.

5. Paralegals
The scope of paralegal work--and the number of independent unsupervised paralegals--has dramatically increased. When pushing to prosecute those who may be conducting unauthorized legal practice, lawyers are at risk of being accused of “protecting their turf”. In reality, lawyers and law societies are attempting to protect the public. The education and professional culture of lawyers give them insight into complex problems, and a level of skill and knowledge which cannot be matched by a paralegal or Notary Public.

6. Title Insurance
Title insurance is normally for losses due to title defects, survey defects, by-law infractions or fraud. In some US states, title insurance has managed to push real estate lawyers literally out of business. This issue raises some critical questions: Does title insurance protect the public and maintain the integrity of the property registration system? How (or do?) lawyers retain a market share in the face of title insurance? What happens if we don’t?

7. Professional Liability
There is currently discussion on whether joint and several liability remains appropriate amongst co-defendants or professional partners. Some alternatives: proportionate liability amongst co-defendants; limiting the scope of professional liability, either by limiting those to whom a duty of care is owed or by limiting services to which professional liability attaches; and/or limited liability amongst professional partners.

8. Globalization of Legal Practice
The liberalization of international trade in legal services is both an opportunity and a threat. Canadian lawyers may see their market diminished by other providers of legal services, either outside of the country or within (multi-disciplinary practices, paralegals, etc.). The World Trade Organization is developing rules for accountants, and there is some concern that these rules may be imposed on lawyers without regard to its distinctiveness.

9. Technology and Privacy Issues
Technology raises some tricky issues of privacy. Lawyers must be aware that the privileged communications contained in a computer seized under a search warrant may be vulnerable. Technology also presents challenges to confidentiality of information, raising ethical and liability issues.

10. Extension of Privilege to Patent and Trademark Agents
The Patent and Trademark Institute of Canada is lobbying the federal government to provide for privilege of communication between clients and patent or trademark agents acting in performance of their professional duties. Proponents say patent and trademark agents undergo rigorous qualifications examinations, and, that the nature of patent and trademark work is such that extending this privilege is not seen to be giving a particular advantage to a group in competition with lawyers. Opponents ask “is this the ‘thin edge of the wedge’ for extending privilege to other groups?”

This article was published in the February 1998 issue of BarTalk and is subject to the copyright by the British Columbia Branch of the Canadian Bar Association, 2006, all rights reserved.