By Dr. Cristie Ford, Associate Professor and Director, Centre for Business Law
A version of this article appeared in the November 2017 edition of The Advocate.
Every day on my walk down the hallway to my office in Allard Hall, I pass by a plaque dedicated to the founding dean of the law school, George F. Curtis, OC, OCB, QC, where he is quoted as saying: “Law schools are not teaching or laying the foundation for practicing tomorrow morning. You’ve got to think 20 years ahead if you can.”
In the legal profession, we are no strangers to discussions about the changing nature of the practice of law, and the potential impacts of technology and competition on legal practice, the administration of justice, and legal education in Canada. I’m pleased to introduce myself as the Allard School of Law’s Faculty Lead on a new one-year project, supported by the Franklin Lew Innovation Fund, to study innovation and the future of the legal profession. My research over the past several years has been engaged with questions about innovation, while my role as Director of the Centre for Business Law and previous experience in practice in both Vancouver and New York have given me a front-row seat to the changing nature of legal practice. I feel a strong sense of responsibility to both students and the profession, which is well captured in Dean Emeritus Curtis’ words, and I’m delighted to have this opportunity to put this experience to use as the law school positions itself to educate its students for a future that is coming at us quickly.
Some would say that rumours of the death of the existing model for providing legal services are greatly exaggerated; others have for decades been predicting fundamental, transformative change to the profession. What is probably beyond dispute is that the legal profession is facing some keen challenges right now, some of which – the technological ones – may actually raise genuinely novel concerns.
Uneven and insufficient access to justice remains a crisis in this province and across the country, certainly for the poorest but also for middle class and even professional individuals facing contentious civil or family matters. Courts are often overwhelmed with self-represented litigants. Yet lawyers face challenges making a decent living while representing these clients at rates that they can afford to pay. Initiatives like BC’s online Civil Resolution Tribunal, which now covers strata disputes and small claims disputes under $5,000, may offer a scalable model for addressing access to justice challenges, especially in rural areas where live legal help is scarce. At the same time, the model represents a very different approach, which among other things severs what might otherwise be a one-to-one relationship between lawyer and client on such matters. The same is true of a range of new “lawtech” products now in their early stages that are being developed by technology startups and others in Canada and abroad. Several of these alternative models raise difficult questions of professional ethics.
In larger-scale corporate and business law, as well, firms are facing increasing pressure from growing in-house corporate legal departments to demonstrate greater transparency and value. The billable hour model increasingly is having to make room for fixed fees, which some firms struggle to price appropriately. Leaving to one side the potential benefits that flow from partnership structures, in a business sense those structures limit even the largest firms in their ability to invest in research and development, or to access capital markets. In the future – if not already – they may struggle to compete with corporate entities, including some accounting firms and management consultants, who have an eye on lawyers’ books of business. As Canadian Law Societies and the Canadian Bar Association know, these pressures provoke some considerable soul-searching and reflection among regulators and industry associations as well.
Junior lawyers in particular are facing an uncertain world as outsourcing, insourcing (within Canada but to cheaper centres and on non-partner-track careers), or automation hollows out the tasks that once would have occupied, paid for, and trained them. When it comes to routinized or commodity business, too – in business law, in wills and estates, in real estate, or further afield – especially in light of access to justice challenges and client pressure, we may well ask whether the existing legal business model is likely to persist. Machine learning (also known as artificial intelligence) is still some years away from truly disrupting lawyers’ practices, but its potential is starting to emerge. Some Canadian-led businesses are in fact international leaders in this space. Arguably, the challenges to facing the business of law are at least as thought-provoking, though perhaps not as existential, as the challenges to the profession of law, its ethics, and its self-understanding.
What do these developments mean for the practice of law, and for legal education? How can the Allard School of Law equip our students with the skills they will need to succeed in this changing environment, whether in traditional firm careers or beyond them? How can law schools do their part in addressing the access to justice crisis? These are the questions I’ll be exploring over the next year, through both research and outreach. I welcome input from the legal community into this work, and may be reached at firstname.lastname@example.org.