But who supervises the lawyers?
The Canadian Bar Association is the latest to come out with a comprehensive report advocating fundamental change in the structure and management of law firms and the delivery of legal services. Jordan Furling has provided a useful summary for those, like me, who do not have time to read the entire document.
In line with trends in other countries, the report recommends that there can be non-legal ownership of law firms (though it goes further in this than is common practice today). It therefore also envisages that such firms will offer a wider range of services – which is again the case in some other countries. And it is this area of what constitutes a legal or non-legal service that especially interests me.
The report itself acknowledges a certain greyness, yet persists with the view that ‘non-lawyers’ need to be supervised. It has relaxed the requirement for supervision from ‘direct control’ (which implies detailed review of work) to one of ‘effective control’ (which may be taken to reflect a need for more general oversight and governance standards).
The field of contracts is a perfect example of the dilemma. It could be argued that since a contract is a legal instrument, a lawyer should ‘directly or effectively’ control its creation. But in reality, they do not perform such a task. In most cases, there are multiple participants in contract creation and frequently key documents are prepared and used without any legal intervention or review – for example, service level agreements, product specifications, statements of work. So what elements of a contract – or its negotiation – constitute a protected ‘legal service’?
Moving to the future, we see law firms (and in-house lawyers) increasingly expand their field of operations. Indeed, there is growing interest in taking on the wider ‘business’ aspects of contract development and then potentially adding services such as post-signature data extraction or even full contract management. So does that now become a ‘legal service’? Are we seeing job scope creep here?
With that expansion, there are obvious areas for contention, confusion and re-definition of required process and controls. On one side, there is the question of how much lawyers will attempt to expand the definition of things that constitute a ‘legal service’. But on the other side, I believe a more fundamental question is ‘what qualifies lawyers to make business judgments?’ While many lawyers are talented business-people, this is not intrinsic to their knowledge base or skills. There are many aspects of business process or commercial policy to which the average lawyer is blind. Many cannot even answer fundamental questions, such as what makes a specific contract or term ‘fit for purpose’.
So as they stray from traditional activities into a broadened role, who is going to ensure ‘effective control’ over lawyers?