The following is an excerpt from the president's address at the OBA Council Meeting in September 2019.
I’m happy to have this opportunity to share my presidential focus for the upcoming year. For those of you who are new to the OBA, each year the President has a focus which supplements and complements the other work we do.
While it should go without saying … I’d like to emphasize that whatever new projects, benefits and activities we spearhead in the months to come, the fine work that my predecessors have undertaken – the initiatives they have launched, the efforts they have advanced on behalf of the profession, the engagement and activism they have inspired in members– will continue.
In light of recent events at the LSO there should be no doubt that the OBA’s commitment to equality, diversity and inclusion in our profession is unwavering, and these principles will always inform all aspects of our member service, advocacy and representation. The momentum – with respect to EDI, to access to justice, to mental health, to name just a few – will carry forward.
OBA Lawyers are progressive, change-makers
There is no question that when lawyers apply our considerable, combined talents -- our legal ingenuity and logic, our passion and vision, our tenacity and powers of persuasion – to a challenge, no matter how formidable or complex, we make things happen.
Lawyers can, and always should, be on the frontlines of social progress, anticipating threats to human rights and advocating for reforms that ensure the law adapts to keep pace with the times.
To excel in our profession, we have to stay current and to see issues from multiple angles. In short, we must be expansive in our thinking and creative in the discharge of our duties as trusted advisors.
This combination of social innovation and intellectual ingenuity that characterizes the work of lawyers – in all our cases, clients and causes – is not, however, usually reflected in how we manage the business side of our role. The fact is that law practice, like the courts, has been slow to change and we are in danger of losing out in the modern legal marketplace.
Why have lawyers been slow to embrace innovation in practice?
I don’t think it’s a lack of will. If there’s one thing I took away from Past-President Vicars’ tremendous work to advance equality in the profession, it’s that there is great appetite among a large percentage of lawyers to embrace new ways of thinking and to harness diversity of opinion to advance important goals.
I suspect the barriers are more logistical. They include:
- the fact that we lawyers are often simply too busy catering to the needs of our clients and employers to consider transforming our practices;
- we also tend to be solitary in our work -- even those of us in big firms or on large teams – so we not only have limited experience of other ways of operating and the opportunities open to us, but we also feel ill-equipped to adopt sweeping changes on our own;
- we are perhaps understandably risk adverse and unwilling to invest a lot of money in an uncertain course;
- and, if we are already successful, why would we want – or feel the need – to change?
The status quo is easier and safer on the surface, but inertia will only lead to obsolescence.
The legal profession today faces a greater rate of change than ever before. And, the pace of change for society generally is exponentially greater than in years past.
Now is the time to act
This is why we must take action now, and why practice innovation is a core component of my mandate for the coming year.
The OBA will form partnerships; we will conduct testing and provide training; and we will procure, package and deliver innovations that will solve the challenges you face in your particular practice setting. We want to help you run your business and serve your clients more efficiently and make sure you are leaders in every sense.
In short, we will do the work required to help our members practice law today and prepare them to practice law tomorrow and for their entire careers.
But before I get into how we will do that, I’d like to speak a little to the climate we’re operating within and the competition we’re facing.
The expanding view of legal practice
As I mentioned earlier, it’s possible that while we’re expansive thinkers generally, at least when we advocate for our clients, we’ve collectively accepted too narrow a view of what lawyers truly offer. The fact is that other entrepreneurial entities (businesses and consultants) are continuing to expand their mission and offerings, encroaching on the space that was once the sole province of lawyers.
As an example of failure to innovate – to one’s peril – business classes often cite the case of the horse and buggy business, which had its most profitable years from 1899-1905 just as the motor vehicle was invented and the assembly line developed. Over a short period, from about 1905-1920, however, the buggy manufacturing business died and the motor vehicle became ubiquitous. In fact, during that period the transportation business generally increased by six fold compared to what the buggy business had previously achieved. If you were a buggy maker who did not innovate, you went bankrupt. However, if you were a buggy maker prepared to evolve with the times and modernize accordingly, you would have been able to take advantage of the rapidly increasing work, money and opportunities.
Today there is no shortage of demand for legal services but their provision – the methods, delivery, end-users – is changing.
Although it may not seem too dramatic, there is disruption in the legal marketplace – where behemoth accounting and consulting firms loom large. Consider, for instance, that:
- In recent years the big four accounting and consulting firms, EY, Deloitte, KPMG and PWC, have dramatically increased their presence in the worldwide legal market, each in their own way.
- In April 2019, EY bought Pangea3 from Thomson Reuters to facilitate providing legal "managed services" to allow their clients to complete legal work efficiently and at lower cost. This transaction alone brought over 1,000 legal professionals into EY.
- At the same time EY also purchased the U.K. alternative legal services firm, Riverview, which provides fixed fee services to in-house legal departments. EY plans to have 5,000 lawyers within two years.
- New business models in which firms like EY spend in the order of $2 billion per year on innovation mean that in the near future, legal practice, certainly on a multinational and transnational basis, will be very different from what it is today.
- In 2016 EY Canada merged its in-house tax "boutique" with a business immigration boutique to deliver "integrated, multi-disciplinary services including corporate reorganizations, mergers and acquisitions, financings, joint ventures, transfer pricing drafting, commercial contracts, policies, procedures and corporate secretarial services".
- Online dispute resolution has been brought to the Small Claims Court in B.C. and to a limited form of condominium disputes in Ontario.
- B.C.'s civil resolution tribunal (civilresolutionbc.ca) was Canada's first online dispute resolution system. It is a mandatory forum for small claims (<$5,000) condominium disputes and, significantly, smaller motor vehicle accident claims (<$50,000 damages).
- The system facilitates party to party negotiations (like eBay or PayPal) but mediators and tribunal members take over if the dispute has not settled after online negotiation. There are about 14 full-time and 24 part-time tribunal members. The system had an 84 per cent approval rating amongst participants earlier this year. Personal injury lawyers are not so happy.
- In Ontario the Condominium Authority Tribunal (www.condoauthorityontario.ca) has had an online dispute resolution system since November 2017 but it is limited to disputes related to condominium records such as financial records, minute books, budgets and reserve fund studies.
Despite this intensifying competition and the threats it poses to lawyers’ business, there are extraordinary opportunities for growth. And, because no one knows legal issues better than lawyers, you are in a better position to identify business opportunities than anyone who is not a lawyer.
If you are prepared to innovate and to take a risk while remaining committed to being a trusted advisor to your clients, you stand to prosper and profit from these opportunities.
Innovators in Canadian BigLaw
In fact, we’ve seen many Canadian law firms rise to this challenge. While no Canadian law firm can invest $2 billion per year in technological innovation as EY has done, nonetheless Canadian "Biglaw" has already been creative. Whether it’s Torys opening a lower cost “nearshoring” office in Nova Scotia; Osler introducing technology that streamlines production of estoppel certificates for multi-tenant real estate transactions; McCarthy Tetrault launching their MT>Divisions; or Dentons Canada hiring KPMG's former GTA managing partner to be its new CEO -- Canadian law firms have not stood still.
But one firm on its own can only do so much, and certainly smaller and mid-size firms, regardless of their entrepreneurial aspirations, are hamstrung by lack of resources.
It’s also fair to say that there is no one-size-fits all solution to modernize every practice or practitioner.
How do you know which technological or process innovations are the most apt for you to adopt? Which ones will serve you and your clients best, and how can you leverage appropriate partnerships to avail yourself of these platforms, tools and procedures?
You let the OBA do the legwork.
The OBA Practice Innovation plan
Collaboration is key to exploring and implementing sensible, sustainable innovation. To a small degree, we’ve already seen during our partnership with last year’s OBA Innovator-in-Residence Peter Aprile how eager members are to explore new management models and innovative practice strategies – how keen they are to benefit from the experience and insights of trailblazing lawyers.
I am excited to tell you that the innovator in residence this year will be the Legal Innovation Zone (the LIZ) at Ryerson University, one of the first and one of the best legal innovation hubs in the world. Working with the LIZ, we will keep you informed about new technology as well as best management practices. We will also pair with the LIZ to provide members with the services, training, tools and framework to adopt meaningful innovation in their practices. This innovation initiative is founded on five ‘pillars’ of support:
Five pillars of innovation
- Information Services
Who has the time to figure out what technologies and innovations are out there right now that might work in their practice, let alone what will be coming in the future? The OBA will provide members with this information. The information will be categorized and delivered in any easy-to-digest fashion that takes into account the busy realities of the practice of law. If you’re just starting in practice, you may want to know what’s already available to give you a leg up; if you’re more established you may want to know about emerging, cutting-edge technologies that will increase efficiencies; if you’re part of a larger firm, you may want an even longer-range view of what your practice will need to adopt to continue to thrive in the marketplace of 10 years’ time. Members will be able to pick and choose the options that apply to them – in their setting, in their practice area.
In order to be able to recommend the best innovations, the OBA will undertake extensive research. We will research best practices, what other industries have adopted, and consumer reporting – we will test these tools and approaches to see how well they address the specific requirements of lawyers. We will provide members with tried and tested options and also facilitate a listserv for members that will allow them to share common issues and favourite recommendations.
Once we have provided lawyers with information about what is out there and what will work in our practices, we will ensure lawyers have the know-how to incorporate and use the tools effectively.
The OBA has been in the business of practical CPD for decades. We will have CPD about legal technology and new best management practices.
The OBA will produce CPD materials on innovative ways to improve client relationships, digital marketing, alternative billing arrangements, improved lawyer retention, building resilience and improving diversity and inclusion as a strength for every law firm. The OBA will make sure you’re ahead of the curve.
The OBA will provide easy and affordable access to the right tools – whether through a products portal, “practice on a laptop” for lawyers headed out on their own, or by way of partnerships with providers. We will work to make technology more convenient and more affordable for our members and member firms. As the largest legal association in the province, we will look for ways to leverage our buying power in order to provide technology in an affordable way—even for the sophisticated players.
Once our members have embraced and been trained on the new technologies, and practice innovations, the OBA will work to ensure that your new skills are recognized.
We need to discuss whether the LSO should introduce practical technology competency requirements and regulations regarding the appropriate role for lawyers in the provision of legal services aided by technology. If we do so, we would establish lawyers as recognized experts in technology-assisted legal services and ensure that lawyers continue to play a critical role as the legal marketplace becomes more complex, crowded and innovative.
As Ontario’s leading legal organization, which has served the bar for over a century, the OBA will make sure there is something for everyone in the technology services and advice we provide. This is key: we will have inviting, easy-to-implement offerings for every lawyer, tailored to every area of specialization, and we will help you put them into your practice.
We know how important your work is to you. We know the high standards of professionalism to which you adhere. We know the value you place on providing impeccable legal service and promoting access to justice.
All of these objectives are better achieved through practice innovation. And to modernize, anticipate and adapt will only expand and enhance your opportunities to practice your profession.
I look forward to hearing your thoughts on innovative technologies and practices over the coming months. Please look for your invitation to the leading conference on innovation and young lawyers that the CBA and OBA will be hosting in June 2020. There, we will bring together young lawyers from across the country and all of the CBA family to inspire, educate and innovate. Hold the date, and get ready for the best party of the decade!