Are there too many lawyers?

By: September 6, 2017

With students graduating in record numbers into a stagnant job market, the answer must be yes, right? Not even close

up overflowing among other cups

CHAPTER 1: SECOND CUP

Joel Miller was dreading retirement. It was 2014, and he had practised family law for close to five decades. At that point, he sat atop the family-law practice group at Ricketts Harris LLP, a downtown-Toronto litigation rm. He felt like his career in private practice had plateaued and that he couldn’t accomplish much more. And so he decided, at age 72, to retire.

The thought of retirement filled him with concern. Miller worried that, without work, he’d be lost. “I never had any hobbies,” he says. “I don’t golf. I didn’t really want to spend all my time reading and watching Netflix. Retirement looked like a big, black hole.”

Around this time, the legal scholar Julie Macfarlane, a law professor at the University of Windsor, published an exhaustive study on the wretched state of the family-law system. Miller, out of curiosity, picked it up. The numbers were shocking: they showed, with precision, that 64 percent of family-law litigants across the country have no lawyer. In downtown Toronto, Miller’s home turf, that number rose to 73 percent.

coffee cupMiller was gobsmacked. “I’d been charging clients $650 an hour for 47 years,” he says. “I never really cared about the self-reps. I mean, I saw them in court and sometimes I argued against them. But I had no real interaction with them. When I read the report, I was struck that there was this whole world I’d never noticed before.”

The sheer number of Canadians working through family court on their own was one thing. But what really caught Miller’s attention is the fact that people who represent themselves have a modest amount of money. In fact, 43 percent earn more than $50,000 per year. And 53 percent hire a lawyer at the outset of their dispute, but can’t afford the ballooning fees. “These people are not broke,” says Macfarlane, on the phone from her office. “Most of them have some money to spend. It might be $1,500 or $5,000. And they are desperate to spend that money. They hate being on their own.”

On reading that section of the report, Miller could hardly contain his excitement. “It became clear to me,” he says, “that the demand for lawyers is palpable.”

This conclusion cuts sharply against conventional wisdom, which has it that the legal job market is shrinking. That prediction has some merit. Back in 2008, the largest 16 firms in Toronto hired 323 second-year summer students. This past summer, they hired 257, a 20-percent drop. (Worse still, this figure doesn’t include the 2013 collapse of Heenan Blaikie LLP, whose Toronto office took on about 15 students each summer.)

One central cause of this hiring slump is the rise, in the past decade, of outsourcing: most large law firms now farm out routine tasks — such as document review and due diligence. In the coming decade, this should continue to suppress the appetite that large law firms have for new lawyers.

Meanwhile, the economic forecast is stormy. A major study on the future of jobs, published in 2016 by the government of Ontario, predicts that the demand for lawyers is about to crater. The main culprit, according to the report, is the fact that the Canadian economy continues to grow at a sluggish pace. Unless that changes, large corporate clients will have less money to spend on legal advice.

There’s more bad news: as the traditional job market continues to flounder, the number of new law grads has skyrocketed. In the past decade, the number of first-years at Ontario law schools has risen from 1,234 to 1,549. The number of foreign-trained law grads looking for work has also soared. In 2007, 199 international students had their law degrees accredited in Canada. In 2013, 730 students received accreditation.

So what does all of this mean? “Over the 10-year period until 2025,” the Ontario government’s study concludes, “there will be 1.6 new licensed lawyers for every new practicing position.” If this comes to pass, the number of new law grads will outpace the number of new lawyer jobs by close to 16,800.

This disaster is avoidable — if the legal profession can find a way to sell its services to the huge number of Canadians who are starving for help, but can’t afford what traditional law firms offer. “If we actually did this, we’d also be doing what the public needs and actually wants,” says Macfarlane. “Wouldn’t that be a radical step?”

Much of the unmet legal need is, of course, in family law. But that’s a tiny sliver of the problem: in any three-year period, 12 million Canadians encounter a legal issue, but 20 percent take no meaningful action to find a solution.

Miller sees in such statistics an ocean of potential clients. “I assumed I wasn’t the first person to think this way,” he says. “So I went looking for a lawyer who had brought a for-profit solution to the table. But I couldn’t find one.” He had heard people call for more legal-aid funding, but he didn’t think that was necessary. After all, most people looking for a lawyer have some money. “I was shocked! It made no sense that no one tried to figure this out.” At that moment, he knew how to spend his retirement.

CHAPTER 2: THE COMPETENCY PROBLEM

Miller has spent the past two years designing a brand-new law-firm business model, one that provides legal advice to Canadians at a cost they can afford and generates a decent income for the practising lawyer. To hear the details, I decide to visit Miller at his home, a duplex in Toronto’s upscale Moore Park neighbourhood, which he shares with his wife, Linda Miller.

It’s a bright summer afternoon. He opens the door wearing brown loafers, blue trousers and a loose-fitting pink sweater, and he sports a white beard and moustache. He looks like a Texas oilman on vacation.

Miller steers me to his basement home office. On one side sits his desk; on the other, there is a lounge area with a coffee table. I take a seat on the couch, and Miller makes for a rocking chair.

In conversation, Miller toggles between pithy one-liners and long digressions. He salts his speech with phrases like, “I’m sorry for prattling on, but this is important” and “I know I’m explaining this in a roundabout way, but there’s a good reason.”

He spent his 47-year legal career, he tells me, repeating the same mantra to his clients: If you give me your purse and your problem, I’ll give you my solution. “That was the equation,” he says. “I never gave a fixed fee.”

If a client asked Miller for a quote, he would refuse. “I would say, ‘I understand why you’re asking. I would, too, if I were in your place. But the reality is, I don’t know how much it will cost. I don’t know what will happen. I don’t know how the other side will react.’ Every lawyer knows this speech.”

Not only did Miller recite these words — he believed in them. If he felt he needed to conduct several hours of legal research before a hearing, he didn’t hesitate to do just that. If he thought it was essential to reread the affidavits, he would. “For most of my career, I controlled how much time I spent getting something done,” says Miller. This often led to sticker shock: clients would get the final bill and gawk at how Miller spent his time.

In Miller’s defence, he was simply following the traditional-lawyer handbook, which dictates that lawyers must be thorough and take no shortcuts. “It says that there’s a minimum amount of work that a lawyer must do,” he explains. “Otherwise, the lawyer is incompetent.”

But Miller has come to see that philosophy as one of the root causes of the access-to-justice crisis. In his view, if lawyers want to make themselves more affordable, they must be comfortable doing less work.

The problem, then, is not just that lawyers cost too much per hour — it’s that they spend too many hours on non-essential tasks. “This terrifies the profession,” admits Miller. “It goes against how we have practised law for centuries. It goes against what the law schools teach and how law societies come up with best practices. But the way I see it, we have two choices: we can say ‘tough luck’ to the poor, or we can change our best practices.” Miller has chosen the latter.

CHAPTER 3: BETTER, FASTER, CHEAPER

Miller is not out to save the world. “I didn’t come to this from a saintly place,” he says, rocking gently in his chair. “I’m not an access-to-justice missionary. I’m delighted if I can help people, and I’m having fun. But I’m also serious. I’m trying to solve the really difficult puzzle of providing affordable services.”

His solution: legal coaching for self- represented litigants in family law. “At the core of it all,” he says, “I offer strategic analysis on the strengths and weaknesses of the story someone intends to tell the judge, and how to deliver that story effectively.”

three coffee cupsSay a client has an upcoming custody hearing. Miller can edit her factum and help craft a speech that she can deliver in the courtroom. The process might take place over the course of two one-hour (or longer) phone calls. “I’m trying to develop an efficient, affordable service,” he says. “I don’t necessarily need to read every document or consider every alternative option that the client might have.”

But what about the underlying jurisprudence? How can he pass on that information in a couple of hours? “Ninety-five percent of the time that there are two self-reps in family court, it’s a law-free zone,” says Miller. What wins cases is not caselaw, but a grasp of what will persuade a judge.

Miller offers up, as an example, what he might tell a client who wants the court to strip her ex-husband of his visitation privileges. “Her plan is to go to the judge and say, ‘He knows that every Tuesday night I go out for dinner with my friends, and he deliberately arrives at 7:50 to make me late. I’d like you to cut off his access.’” This, he says, is a losing argument. “No judge will care that she’s missing drinks with her girlfriends.” So Miller would then ask the woman to further explain why she’s so upset by her ex-husband’s tardiness. That’s when she tells him that “it breaks her heart to watch her kids sitting by the window for an hour, waiting for their father, knowing she’ll have to explain to them that, even though he’s always late, he still loves them.” That is the winning argument. “But it never occurs to her to look at it from the children’s point of view.” Miller can pinpoint which parts of her story will curry favour with a judge. No caselaw necessary.

Most people, adds Miller, can represent themselves pretty well with the right help. “But the perception many lawyers have of self-reps is that they have low IQ, they’re dirty and that they have contagious diseases,” he says, hyperbolically. “We lawyers can be incredibly arrogant people.”

Miller agrees that family law can get thorny, in particular when it comes to couples whose assets are tied up in complex financial instruments, such as stock options and multiple properties. But these are “rich-people problems” — and the rich can afford a traditional lawyer. Most family-law disputes involving self-reps, he insists, are over custody and basic support payments. None of which involve complex law.

There’s still the matter of money. Miller bills in chunks of time as he always has — he charges $350 for a one-hour call, and $600 for two hours — but with one big difference. “Clients control how many hours I work, not me,” he says. If they purchase an hour-long call, Miller works for an hour. If he wants them to buy more hours, he has to prove to them that his advice is worth the money.

On average, says Miller, his clients, who often occupy the low- and middle-income brackets, buy $2,500 worth of coaching sessions over the course of their disputes. “These are people who could never afford to go to a downtown lawyer,” he says. “It’s stunning that lawyers are comfortable scrambling for the smallest pool of clients.”

CHAPTER 4: ENOUGH TO GO AROUND

Miller is not completely alone. A handful of other lawyers target those who can’t afford traditional legal advice. Take Mark Morris and Lena Koke, who founded Axess Law, a four-year-old law firm that sells $99 wills out of 10 Walmarts in southern Ontario. They knew the stats, which showed that 56 percent of Canadians don’t have a signed will. And so, rather than lamenting this fact, they hired a software developer to help write a program that guides lawyers through the will-writing process, making a will easier and faster to draft. “We saw a massive pent-up demand, but no supply,” explains Morris. “We’re not stealing anyone’s clients, but instead selling to people who would never have hired a lawyer in the first place. We’re expanding the pie.”

He likens those in the legal profession who are “screaming about job losses in the corporate legal market” to coal miners in the American Rust Belt. “I understand why former coal miners are so upset: their industry has collapsed, and that’s horrible. But if they only looked to California, they’d see the burgeoning clean-energy industry, which is adding thousands of jobs. This is a perfect analogy to the legal industry: lawyers are just as bad at being creative and looking to the future.”

In Canada, Axess Law is one of the few tech-savvy law firms that serve the middle class. But such firms are common in the United States. Both LegalZoom and Rocket Lawyer, for instance, have become major players in the American market. Using templates, these firms help people create legal documents, such as leases and employment contracts. (They charge fixed fees.) It’s fair to assume that similar companies will, in due time, break into Canada.

Setting aside legal tech, a coterie of lawyers across the country offer what’s called “limited-scope” legal advice. Such lawyers never have full carriage of a file. Instead, they help self-represented litigants — in, say, family law or small-claims court — write factums and other legal submissions.

“I’m never the lawyer of record,” says James Cooper, a GTA-based sole practitioner whose practice consists of limited-scope work, or unbundled services, in civil-litigation matters. “If I draft something, clients file it in their name, not mine.”

From her office in Red Deer, Alta., Victoria Foster, a fifth-year family lawyer, sums up her solo practice this way: “I’ll do whatever my clients want me to do.” Sometimes, she helps them draft a factum, leaving them to make the court appearance. Other times, she edits and refines their written submissions. “My goal is to offer services, of any kind, to people who don’t qualify for legal aid but don’t have the money to pay for a full-scope lawyer.”

Could junior lawyers, targeting the unmet demand for legal advice, build profitable practices like these ones? If only it were that easy. Major systemic barriers stand in their way.

The highest obstacle may be student debt: according to a recent survey, third-year law students in Canada carry, on average, $71,444 of it. Paying that down often takes priority over starting an innovative access-to-justice practice. “I’m from Kitchener,” says Patrick Schertzer, a 3L at the University of Windsor and a vice-president of the Law Students’ Society of Ontario. “When I walk around the city, I see tech startups on every corner. Are we seeing the same thing in law? No. And I think debt is the main reason.

If we want to spur on innovation, we need to lower tuition and offer massive debt relief.” But even if student debt vanished, would new lawyers know how to perform limited-scope work or become a legal coach? Not a chance. “To properly do what I do,” says Miller, “a lawyer would need to spend at least three years inside family court.”

Foster, broadly speaking, agrees. Only after articling and working for a year at a small family-law firm did she feel comfortable striking out on her own. “I was constantly in court, with excellent lawyers training me,” she says of her time at the firm.

This is a difficult problem to solve: with the traditional job market on the decline, firms can’t afford to hire and train every new lawyer. In the face of this reality, Miller believes law schools must over-haul their curriculums. “It is sinful, embarrassing and disgraceful how inadequately law school prepares its students to practise as lawyers,” he says. “Law school should teach practical skills, like how to speak in court, how to draft a factum, how to negotiate and what judges care about.”

To be fair, some law schools have added practical-skills training to their programs. But by and large, theory trumps practice. “This makes no sense,” says Darrel Pink, the executive director of the Nova Scotia Barristers’ Society.

“In medical school, students work hands-on with patients in the second week. Whenever I ask why law school isn’t like that, it doesn’t sit well. Law schools always reply, ‘We’re not a training ground for lawyers. We teach them legal thinking.’ Well, I haven’t bought that for a very long time.”

There is one obvious solution to all of these problems: a group of seasoned lawyers, who have attained financial stability, could start a law firm — structured around legal coaching and limited-scope retainers — and hire a fleet of junior lawyers. “That’s the ideal scenario,” says Macfarlane. “And some days, I feel like such a thing could happen. But on most days, and you’ve caught me on one of them, I’m deeply pessimistic.”

What makes her so gloomy? “I’ve been meeting with family lawyers, trying to persuade them to take up legal coaching and offer flat fees,” she says. “The push-back is enormous. They’re apoplectic.” The burden to change, then, falls to the youngest lawyers. At the moment, they’re on their own.

CHAPTER 5: THE SECRET FORMULA

Without a doubt: the barriers to innovation are real. But Miller is convinced that you, a soon-to-be lawyer, can overcome them and build a practice that taps the unmet legal demand in Canada. Here’s his road map to pulling it off.

To start, says Miller, you don’t have to worry about the sagging articling market, at least in Ontario. Now that the province offers the Law Practice Program — in English at Ryerson University and in French at the University of Ottawa — you can get called to the bar without having to scrounge for an articling position.

dozens of cupsMiller also thinks you could apply his general principles to a range of practice areas. On top of family law, you might practise as a legal coach in, say, the criminal or small-business areas. Most startups would swoon over a lawyer who could offer quick, affordable edits to their contracts or trademark applications.

But to do that, you’ll need experience. “If no one will hire you, then spend as much time as you can in court,” says Miller. “Watch what other lawyers are doing. Make an assessment about what techniques are successful. Listen to judges. Become a spectator in the arena.”

Next, volunteer at a legal clinic. (In fact, do this now.) There are clinics dedicated to virtually every practice area. Beg them to let you work for free. “I know this sounds horrible,” says Miller, “but this is the workaround.”

Once you’re ready to get started, launch an efficient, affordable practice. If you want to be a family-law coach, like Miller, copy his formula: sell your advice in one-hour blocks at a fixed-fee of about $300 (or, for that matter, much less). Maybe you want to take on cases in small-claims court: you could draft statements of claim and let your clients appear in court. No matter what, though, never do more work than the client needs.

Don’t let your mistakes get you down. “No one is fully prepared when they start something new,” says Morris, of Axess Law. “I’m probably not supposed to say this in an interview, but it’s true: in the initial stage of developing a business, you let a lot of people down because the promise is there, but the capacity to deliver isn’t. But after three years, and listening to customer feedback, we’re now delivering a stellar product.”

On the business side, keep costs down. “I can picture one to five young lawyers renting space on the second floor of a warehouse, with minimal overhead,” says Miller. “You can work as a legal coach from anywhere. All you need is a computer and a phone.”

There’s also the matter of where to set up your practice. In one sense, it doesn’t matter: the entire country is swarming with people who need help. But the demand is most acute in small communities. The British Columbia branch of the Canadian Bar Association, for instance, is desperately trying to funnel new lawyers into rural areas. It even maintains a database of “high-needs communities” — those with fewer than one lawyer for every 1,000 people — so that lawyers know where their expertise is in need. (Seventeen towns, from To no to Dawson Creek, sit on this list.) So you may want to strategically set up shop in a small town, where the pool of potential clients is the deepest.

To land clients, start with a website, and market yourself, for free, using social media. “And then do your damndest to introduce yourself to every lawyer at the courthouse,” says Miller. “Walk into every single small firm. Ask them to send anyone who can’t afford full-service legal advice to you.”

When Miller looks back on his career, he can barely believe how he once practised law. In the old days, when he landed new clients, he would sit with them and take down their basic information: age, income, assets, birthdate. He billed $650 an hour to do this work. His current clients type this information into an online form on his website.

So does Miller regret his past? “No,” he says flatly. Remember, he’s no saint. But he does regret not making this change earlier: he’s never had more fun practising law. “I wish I had decades of vigorous years ahead of me. I am filled with anticipation for a growing number of people doing what I’m trying out.”

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