North American legal services regulation has been slow to evolve. This reality is particularly apparent when one looks at the rest of the common law world. Take, for example, the radical changes over the last decade or so in the way English and Australian lawyers are governed: among other things, self-regulation has been turfed, as have tight restrictions on non-lawyer ownership. While it is still too early to evaluate the full effect of these and other reforms, they have led to some interesting developments, like publicly traded law firms and the regulation of law firms (as opposed to the regulation of individual lawyers only).
Having observed these changes abroad, many lawyers and academics have suggested that American and Canadian regulators ought to adopt similar reforms in response to modern practice realities. Indeed, to some extent, such changes are already afoot. Some prominent examples include the American Bar Association’s recent passage of a resolution that provides guidance to states if they choose to regulate non-traditional legal services providers and the fact that several Canadian provinces are considering, if not, implementing entity and/or compliance-based regulation (further discussion can be found here, here, and here). Notwithstanding these developments, others have argued that North American legal service regulation should hold firm in the face of dangerous foreign experiments. So who is right? Both and neither, according to a recent book by University of Windsor law professor Noel Semple.
In Legal Services Regulation at the Crossroads: Justitia’s Legions, Semple undertakes a comparative study of what he calls the “professionalist-independent tradition” characteristic of North American legal services regulation and the “competitive-consumerist mode of reform” that has taken place in Northern Europe and Australasia. Ultimately, Semple advocates both retaining tradition and pursuing change: he comes out in favour a reformed professionalist-independent model that focuses on “client-centricity” as a new core value.
Semple devotes the first part of his book to mapping the commonalities and differences in legal services regulation in the common law world. His treatment of this topic is thorough and touches on a broad array of issues, beginning with the foundational question of “why regulate?” and then outlining the two contrasting regulatory styles now found in North America and Northern Europe/Australasia. This comparative study skilfully distils the rich body of literature on legal services regulation that has emerged in recent decades. Both those familiar with the subject and newcomers are apt to find this part of the book informative.
Later chapters zero in on the professionalist-independent tradition, mapping its failures, its successes and its best hope for a bright future. Per Semple’s taxonomy, the professionalist-independent tradition in North America is marked by regulatory commitments to: (1) occupational unity; (2) self-regulation; (3) individual-focused regulation; and (4) the insulation of lawyers. In Semple’s view, the first three of these commitments have made it difficult for regulators to optimally advance the interests of clients.
Semple also characterizes the fourth commitment of the professionalist-independent tradition – the insulation of lawyers – as problematic. He argues that North America’s access to justice problem is exacerbated by primarily licensing only lawyers to provide legal services (here, he is careful to note exceptions in several states and provinces) and by prohibiting non-lawyer investment and collaboration within law firms. Semple develops a strong case on this issue by exploring the theoretical literature in favour of liberalizing legal services regulation and pointing to the successes of real-life innovative service delivery models in England and Australia.
While the idea that North American legal services regulators ought to study and adopt regulatory reforms seen elsewhere in the common law world has been previously advanced by others, Semple’s study stands out for its thoroughness. Moreover, he doesn’t end his analysis with the suggestion that North American regulators simply look externally for ways to improve but also implores them to look inward and retain the best of what the professionalist-independent tradition has to offer.
In Semple’s view, the core value of professionalism that is reflected in this tradition should be robustly defended insofar as it cultivates “practitioner altruism” and “service orientation.” There is reason to believe, Semple argues, that this defence is best mounted by a self-regulatory regime as “self-regulators which can readily draw on relevant practitioner expertise may have an efficiency advantage over the distant state.”
Robust independence is also worth preserving, in Semple’s view. Here, he is careful to disentangle the different ideas that are often conflated under the umbrella of lawyer independence, noting that “[t]he independence core value claims that lawyers must be: (i) independent from the state and its agents; (ii) independent from non-lawyers other than their clients; and (iii) independent from their own firms, as individually accountable moral agents.” On this topic, Semple concludes that “that independence from the state is a laudable goal, although some of the other elements of the independence public interest theory are on shakier ground.”
Having set out the weaknesses and strengths of the professionalist-independent tradition, Semple then undertakes to outline a proposed way forward for North American legal services regulation. The answer to him lies in reform rather than revolution and requires a focus on “client-centricity”. Semple narrows in on what he sees as three key interests of clients–(1) quality (2) choice and (3) price–and outlines tangible reforms that could be taken with respect to each.
At this prescriptive stage of the book, Semple could perhaps be critiqued for proposing too modest of a vision of reform at times. For example, with respect to issues of quality, he suggests that regulators consider a number of relatively small initiatives, including performing audits of law firm practices, conducting client surveys, sending “incognito ‘dummy clients’ to assess service quality at lawyers’ offices”, conducting regulatory reviews of litigation outcomes, and providing special supports for small firms and solo practitioners. Similarly, on the issue of choice, Semple suggests, among other things, that “[c]lient-centric regulators… facilitate informed choice through online directories and marketplaces populated with as much information as possible” including, in some cases, mandatory public disclosure of pricing. Although these are all thoughtful proposals, one wonders how far they will go in overcoming the limitations and threats to the professionalist-independent tradition that Semple maps out in the previous parts of his book.
This section of the book could have also perhaps benefited from more direct engagement with some of the existing American literature on client-centricity. For example, it would have been interesting to see meaningful engagement with some of Katherine Kruse’s thoughts about the limits and benefits of “a client value-based approach to representation…as a professional ideal”.1 Although Kruse’s work focusses on the conceptions of professionalism embraced by individual lawyers rather than on the issue of regulatory reform that Semple takes up, there would seem to be a natural synergy between the two projects given Kruse’s conclusion that “[t]he goal of shaping representation around the values of clients provides an opportunity for legal representation to redeem itself without compromising the core values of client loyalty and service that lie at the heart of legal professionalism.”2
Having said this, Semple’s proposals for increased regulatory involvement vis-à-vis the price of legal services deserve praise for being particularly well-developed and detailed. The reforms advanced are varied, ranging from “light touch” measures such as getting rid of regulation that has a detrimental effect on price that outweighs its potential beneficial impact on quality and choice (mandatory continuing education is provided as an example) to “intervening in and creating markets.” The more interventionist proposals stand out for their ambition – including proposals for tariffs of maximum allowable charges for disbursements and access to justice levies – and are likely to be controversial. Because of Semple’s thoughtful treatment of these proposed reforms, however, they cannot be easily dismissed as overly idealistic or radical.
Semple ends his book by reconsidering the four distinctive regulatory commitments of the professionalist-independent tradition, listed above. The reforms he advocates in this section are also ambitious and include proposals to pursue more diversity in licensing, increase lay involvement and transparency in self-regulatory bodies; allow for alternative business structures; and engage in the careful study of entity regulation and its introduction where its benefits exceed its costs.
Overall, Semple should be applauded for his ambition in writing Legal Services Regulation at the Crossroads: Justitia’s Legions. Ultimately, the conservativism that characterizes some of his prescriptions is a strength of the book. In his caution, Semple avoids advancing either a reactionary defence of the status quo or a simple transplantation of reforms undertaken in other jurisdictions like England and Australia. He also provides North American regulators with a colourful grab-bag of specific regulatory tools that can serve to inspire and direct policy discussion. Without a doubt, those interested in legal services regulation should add his book to their reading lists.
- See, Katherine R. Kruse, Beyond Cardboard Clients in Legal Ethics, 23 Geo. J. Legal Ethics 103, 145 (2010). [↩]
- Id. at 154. [↩]