Sunday, October 30, 2011

"First thing we do, let's deregulate all the lawyers" ..... better than shooting them?

This page was sent to you by: Anonymous
Message from sender: FYI

Dear Anonymous:

Thank you indeed for an article right down our alley for a couple reasons. We're an economist by background who survived a SLAPP (Strategic Lawsuit Against Public Participation) the genesis of which can be traced to September of 2003 when our precursor site (CyberSmokeSignals) was placed on a "defamation watch" by the taxpayer funded Manitoba Metis Federation.

In late March of 2005 a Statement of Claim was finally filed. We estimate by the time the matter was resolved (late January this year) the MMF had expensed at least $250,000 worth of public money to prosecute this beyond asinine case - BTW, we have filed an application under The Access To Information Act to see if we can come up with an exact amount.

Get this. We didn't even write the allegedly defamatory words. Rather, once aware the site had been placed on a defamation watch we retained a Metis lawyer (pro bono) to watch over/advise CyberSmokeSignals. He was the one who wrote the material, suggested it could be posted but at no time cautioned it might/could be litigious. We had black print (e-mail) to prove it. Lionel Chartrand was never named as a Co-Defendant. Why? Rather, the "gentleman" fled to rural Alberta (Wataskiwin) to become a Crown Prosecutor if you can believe it.

In the end, the Plaintiffs sought the moon and stars but received the equivalent of a shovelful of dirt not suitable for even growing anything. We can not provide any more detail because the Manitoba Metis Federation insisted on a confidentiality clause (Wonder why?) in the final settlement agreement otherwise we would. You can access a listing of the extensive court filings - 249 documents - by visiting Manitoba Justice's Court of Queen's Bench online File Registry (www.jus.gov.mb.ca) and entering CI 05-01-41955 (MMF et al. versus Terry Belhumeur et al.)

For much of that time (approximately 85%) we self-represented learning the law by the seat of our pants sitting on hard, wooden courtroom chairs. Aftering arguing Motions, attending almost 30 Case Management Conferences/Pre-Trial Hearings, preparing an appeal heard before The Manitoba Court of Appeal - the process encompassing 3-different Queen's Bench Justices, as well as, 3-Appellant Judges, we believe we have some knowledge/experience in the subject of layperson "self-reps." It can be done!

To facilitate discussion we have interspersed and highlighted our two cents worth throughout the Winston article.

We're sending an information copy of the article to congenial, welcoming Allan Fineblit, Chief Executive Officer, Manitoba Law Society. Have heard good comment about him from someone in a position to know. Problem is, like everyone else at 219 Kennedy Street he too is a captive of the system.Thank you again Anonymous for the great heads up!

Sincerely,
Clare L. Pieuk

Postscript

Hope VJH (Veritas Honoris Justitia) hasn't quietly fallen off the edge of the earth - no analysis/comment from him for some time. He's our severely overpaid Legal Affairs Critic. Wonder what he thinks of the Winston article?

afineblit@lawsociety.mb.ca
______________________________________________________
Are Law Schools and Bar Exams Necessary?
By Clifford Winston
Washington

Related in Opinion

The Case Against Law School
Should the standard three-year law school model, followed by passage of the bar exam, be the only path to a legal career?

FOR decades the legal industry has operated as a monopoly, which has been made possible by its self-imposed rules and state licensing restrictions — namely, the requirements that lawyers must graduate from an American Bar Association-accredited law school and pass a state bar examination. The industry claims these requirements are essential quality-control measures because consumers do not have sufficient information to judge in advance whether a lawyer is competent and honest. In reality, though, occupational licensure has been costly and ineffective; it misleads consumers about the quality of licensed lawyers and the potential for non-lawyers to provide able assistance.

Perhaps Adam Smith, generally considered the father of modern economics, said it best in 1776 (Nature and Cause of the Wealth of Nations - The Wealth of Nations), "Seven years does not good cloth guarantee." He was decrying the long apprentices common in his day.

Rather than improving quality, the barriers to entry exist simply to protect lawyers from competition with non-lawyers and firms that are not lawyer-owned — competition that could reduce legal costs and give the public greater access to legal assistance.

With constantly escalating legal fees, coupled with insufficient Legal Aid funding in many provinces, more and more individuals are turning to self-representation out of necessity - a trend likely to increase for the foreseeable future. Add to the equation the proliferation of SLAPPs, abuse and nuisance litigation, usually undertaken by well-resourced parties with the express intent of financially ruining less resourced individuals/groups, and deregulation of the traditional legal profession makes goods sense.

In fact, the existing legal licensing system doesn’t even do a great job at protecting clients from exploitation. In 2009, the state disciplinary agencies that cover the roughly one million lawyers practicing in the United States received more than 125,000 complaints, according to an ABA (American Bar Association) survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment.

If, for example, you study the Law Society of Manitoba's Case Disciplinary Digests reporting the outcome of complaints against lawyers it's not uncommon to find numerous repeat offerders. There are approximately 1,800 attorneys currently practicing throughout the province. We are unaware whether The Society makes available annual data on total number of complaints received, those that resulted in some form of punishment versus disbarment. We will telephone the LSM and report back.

Canadian Law Societies are sometimes referred to as "Flaw Societies" with good reason because the process in kept completely in-house except for extreme cases where criminal activity may be involved and the police contacted. Both Britain and the United States are more advanced than their counterparts here where the investigator, prosecutor and panel of judges are not all members of the same Society.

What if the barriers to entry were simply done away with?

Unlikely to happen. To do so would mean getting rid of Law Societies which are the world's most powerful trade unions.

Legal costs would be reduced because non-lawyers, who have not had to make a costly investment in a three-year legal education, would compete with lawyers, who in many states are the only options for basic services like drafting wills. Because they will have incurred much lower costs to enter the field — like taking an online course or attending a vocational school — and can operate as solo practitioners with minimal overhead, these non-lawyers would force prices to fall. The poor would benefit from the lower prices for non-criminal matters, and poor litigants, who might be unrepresented in criminal matters like hearings because they could not afford a lawyer and because of dwindling state legal aid, would be better off.

Why not? Consider the case of licensed practical nurses doing certain tasks formerly only performed by doctors. For civil matters, many willing to make the time, effort and commitment should possess the wherewithal to self-represent. However, for more serious cases such as murder one we'd highly recommend retaining a solicitor although some have done it on their own..

At the same time, if corporations — and not just law firms, now structured as partnerships — could provide legal representation, their technological sophistication and economies of scale could offer much more affordable services than established law firms do. These firms, in turn, would have to reduce prices to compete.

Good point. There is a lot of lower end legal work that could be farmed out. Notarizing documents such as affidavits is a good case in point. Why pay an attorney unfamilar with the particularization of an action $50-$75 for a service that often involves a couple minutes worth of work to essentially ensure proper format has been followed versus actual content?

Of course, lower legal prices would cause new law school graduates to be paid less, but more jobs would be available for such graduates because the demand for lawyers would increase. And new graduates would begin their careers with less law-school debt, because alternative providers of legal education would force law schools to reduce tuition.

The legal profession, like others, is undergoing a tremendous upheaval. Several sites known as, "law school scam blogs" have emerged especially in the United States. These are frequently operated by newly minted lawyers saddled with huge debt unable to find suitable employment. Their main target seems to be law faculty professors/administrators who paint an overly rosey picture of income expectations upon graduation. Then again it's the old story isn't it - caveat emptor!

Leaving aside the matter of letting non-lawyers and non-lawyer-owned firms do legal work, more could be done to enhance consumer choice and attorney accountability. One practical measure for more effectively regulating the field and lowering costs would be for third parties to compete to provide accurate and useful information about the quality of lawyers. Third-party providers of legal services information could do a service similar to that provided by Consumer Reports and Zagat Survey and effectively regulate the legal profession by monitoring the law firms’ performance and effectiveness.

In the example of Manitoba's Law Society, a layperson seeking a lawyer can start by accessing its online Case Disciplinary Digests. A member has told us these only go back to a certain date and tend to be Google unfriendly. Chatted briefly this morning with a LS staffer who didn't have a complete answer but agreed to look into the matter. Preliminary indication is The Society began placing the results of CDDs online approximately 1992-1994. In other words, if an attorney transgressed prior to that you will be unable to find any record.

Consumers would be in a position to demand credible and complete information about a practitioner. Incompetent and dishonest lawyers would bace immediate exposure over social and legal networks thereby alerting other consumers of potential problems with their services. By sharing their experiences, consumers would understand more fully which credentials and evaluations are the most accurate and useful signals of competence and value.

Under provisions of The Legal Profession Act a lawyer facing possible disciplinary action cannot be identified unless or until there has been a finding of misconduct. The penalty is a fine and/or possible jail sentence. Conceivably a solicitor could have been called before the LS multiple times but if there are no convictions .....

Get this. We were tracking the case of a young lawyer facing a disciplinary hearing (a classic textbook case of where a Queen's Bench Motion for a contempt of court citation should have been filed rather than an LSM complaint) because the standards of proof for the latter are lower than the former. Therefore, we were forced to come up with silly spseudonyms when discussing the case - "Blackie" - (for the accused based on author Charles Boyle's mythical character Boston Blackie). The complainants are a lawyer ("Mr. Y" - "what a guy that Mr. Y!") and a non-solicitor "The Bully." But it didn't end there.

Next we had to save The Society from itself when we published the 3-count citation against Blackie. If you can believe it, the actual initials of the parties' involved along with that of an organization were used. An 0y vey moment!

This morning we recieved electronic copies of the last two Law Society of Manitoba Annual Reports which we'll be reviewing to ascertain what data is publicly available. Total number of complaints? Number of convictions by type of penalty? Disbarments? Etc.

Thanks to resistance from lawyers themselves, strong competition has not developed in the market for information. The efforts of a leading legal-information provider, Avvo, have been the target of a class-action suit filed by lawyers who disapprove of the firm’s ratings system. By threatening lawsuits and not cooperating with Avvo’s requests for information about attorneys’ licensing and disciplinary records, several states have impeded Avvo’s ability to provide information. But in the absence of an open, competitive approach to information about the quality of legal services, the existing licensing and discipline system creates a false sense of security.

Some lawyers in the United States have started "reverse autioning" their services on e-Bay. For a discussion of possible issues solicitors using this service in Canada may face from Law Societies visit http://www.dynamiclawyers.com/lawyers-selling-their-services-on-ebay/19/. The LSM staffer was not aware whether any practitioners here were using e-Bay.

Ditto for Shpoonkle. An Amazon online book review of, The Shpoonkle Model for Legal Services can be found at http://www.amazon.com/Shpoonkle-Model-Legal-Services-ebook/dp/B005BHQW4A). It states:

The Shpoonkle Model for Legal Services is an in depth analysis into the changing scope of Legal Services. A comprehensive review of the innovative reverse auction model called Shpoonkle.com. There may be no traditional definition of Shpoonkle in any dictionary that could be found, but it may be a word that defines the legal profession within time. The ambitious goal behind the site is to revolutionize the legal industry and how lawyers and clients interact. Shpoonkle attempts to achieve this goal with an eye towards the current economic downturn and the prospects facing current and graduating law students. This book reviews why Shpoonkle Spells Success as a Startup.

This high-growth, dynamic, and controversial privately owned company founded in 2010 by CEO Robert Niznik and is facing brilliant prospects. Whether you love or hate the name Shpoonkle, people are talking about the company, ideology, methodology, and how it impacts the entire legal profession. Not bad for a company just a few months old.

To protect clients from bad lawyers, current barriers to entry try to separate the wheat from the chaff among potential legal practitioners. A market for information, though, would let consumers identify the chaff more precisely, saving more of the wheat. It is worth recalling that two of the finest lawyers and civil rights advocates our country has ever produced, Abraham Lincoln and Clarence Darrow, would not be allowed to practice law today under current rules. (Lincoln was self-taught; Darrow attended the University of Michigan Law School but did not graduate.) Eliminating entry barriers and allowing non-lawyers to perform legal services would, among many other gains, ensure that such talents have a place within our legal system.

A few years ago former Manitoba Chief Justice Jeffrey Oliphant in a Winnipeg Free Press interview noted the increasing number of self-reps showing up in the courts. His point? For sure there were those seeking their 15-minutes of fame but also several very good case presentations. Hear! Hear!

Clifford Winston, a Senior Fellow in the Economic Studies Program, has been with the institution since 1984 specializing in the analyis of industrial organization, regulation and transportation.

He has also been co-deitor of the annual microeconomic edition of the Brookings Papers on Economic Activity. Prior to his felloowship he was Associate Proefessor at the Transportation Systems Division of the Massachusetts Institute of Technology's Department of Civil Engineering. Since then he has authored and co-authored books and learned articles in several areas of deregulation tranportation. Mr. Clifford holds a B. A. (Eonomics, University of California at Berkeley), M. Sc. (London Schoold of Economics) and Ph.D. (Economics, Berkeley).

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