♪♫ CBER Claus Is Coming to Town♫♪

♪♫ CBER Claus Is Coming to Town♫♪
Published on:
January 7, 2019
Published on:
September 22, 2021

The blog post Was the Law Practice Program invented by Nikola Tesla or Thomas Edison? invited us to shift the discussion about lawyering (business or calling) to the “somehow” of producing and delivering legal services. This post includes an invite to action about that “somehow”. But first, let me tell you what recently happened to Jose.Jose, a seasoned lawyer in Ontario, listened to his voicemails. A woman named Maria, with limited English-speaking skills left a message:Hi. My Boss fired me. I told I’m pregnant. I cry all the time. I hear Carranza in the radio. They told, you help me. Please. My number is 5190B00Z03. Me llamo Maria y que Dios me le pague, Mr.Jose’s intuition told him: the file is worth nothing, and I’m busy with billable work. He saved Maria’s voicemail for later.Almost three weeks passed by, and Jose was running out of billable work (and more importantly, cash flow to pay for his overhead and employees). He followed up with potential clients in his radar and got a hold on most of them. Jose called Maria last. On that Thursday, late in the evening, Maria was tired of trying to find representation, she was about to let it go.Speaking with Maria, Jose thought that the file was worth something, but she couldn’t afford his retainer by the hour. He also found out that Maria had an “ok” offer from her former employer. The deadline to accept or decline the offer was on top of them, Monday. He convinced Maria to retain his firm, because he planned to give the file to his recent call associate, Camila. As soon as he finished with the call, Jose texted Camila: “Good case for you. Come to the office early in the morning.” Camila was excited about this opportunity, and immediately responded to Jose:Great!!! I’ll make arrangements for my kid. I’ll be there earlier than usual. See you in the morning. And, hey Jose … thank you very much :DOn Friday morning, Camila got to her desk at 8 a.m. She dogged in the computer, and tried to find the mystery file, unsuccessfully. At about 9:30 a.m. Jose texted Camila:I have to take my kids to their grandma. Everything is all right. I’ll be there asap. Start reading my notes, I saved them in the file “Maria”; it’s in the clients’ folder (shared drive).The notes were short. Camila finished the document under five minutes. She took the initiative to start researching about what she thought was the legal issue. Eventually, Jose got to the office and after he responded to important emails, he gave Camila instructions:All right Camila, this is an emergency. It’s a good case, but on contingency. You’ll do most of the work. The deadline is Monday. I need you to find out how much we should ask for. We also need a demand letter ready to be sent Monday morning. Formalize the retainer. Call Maria if you need to.Camila immediately cancelled her weekend plans with her family. She saw no other choice but to work until Maria’s letter was sent. Camila’s husband was sad because they were both looking forward to spending quality time with their toddler. And, there was a substantial cancellation fee to pay as well (luxury that they couldn’t afford).If you were Jose, what would you have done differently? Forward the voicemail to Camila as soon as you received it, for her to explore the case and report back to you? Evidently, this may be one way to solve a one-time issue. If it were a one-time issue. But, we know that generating leads, screening potential clients, assessing financial viability of new files, and executing retainers are not a one-time thing in a law practice.As in courtroom advocacy and boardroom negotiations, managing the workflow of a law firm (no matter its size), the answer is more complicated than this. I think it starts with assessing the firm’s practice environment and work culture, which in the case of Jose’s firm, I can see (at least) these deep-rooted problems:

  • using habits and intuition as a substitute of firm’s policies and procedures;
  • lack of awareness of the firm and employees’ capabilities;
  • failure to provide timely and uniform instructions, and symmetric information to employees;
  • lack of business goals and lack of target market;
  • mistakenly thinking that the practice is sustainable no matter what happens.

May the Force be With You!

In June 2015, the Benchers of the Law Society of Upper Canada (as it then was) - now the Law Society of Ontario (LSO) - in Convocation (Convocation), established the Compliance-Based Entity Regulation Task Force (Task Force), to make recommendations about how to better deal with current legal sector’s challenges, such as:

  • increasingly complex working environment(s);
  • the proliferation of new ways to deliver legal services (including new technologies);
  • the more-for-less clients’ expectations; and
  • globalization;

A few months later, in its May 26, 2016 Report to Convocation: Compliance-Based Entity Regulation - or CBER - (2016 Report), the Task Force recommended Convocation to:

  1. “[…] seek an amendment to the Law Society Act to permit Law Society regulation of entities through which legal services are provided”; and
  2. “[…] approve development of a regulatory framework for consideration by Convocation based on the principles of compliance-based regulation set out in this report”. [Bold added]

I understand from the 2016 Report that the current legal sector’s challenges are not to be overcome by keeping regulations as they were originally designed (over the individual lawyer, i.e. Jose), and perhaps that the legal sector’s regulatory framework needs to evolve, which means to develop the regulation of entitiesthrough which legal services are provided (i.e. Jose’s firm) based on the principles of compliance-based regulation:

  1. Practice Management;
  2. Client Management;
  3. File Management;
  4. Financial Management and Sustainability;
  5. Professional Management;
  6. Equity, Diversity and Inclusion; and
  7. Access to Justice.

At this point, I think, and I trust that you would agree with me, that forwarding Maria’s voicemail to Camila faster would not be a policy or procedure that survives CBER. This is barely a habit. Instead, I agree with the Task Force that the entities through which legal services are provided (hopefully, filled with lawyers and paralegals) would help themselves manage their workflow by having appropriate policies and procedures based on these principles.No worries, you are not alone in this endeavour. More recently, in the May 24, 2018 Report to Convocation: Compliance-Based Entity Regulation - or CBER - (2018 Report) the Task Force recommended Convocation to:

  • invite participants to review the practice assessment tool developed by the Task Force and included in the 2018 Report, and to give the Task Force their feedback; and
  • launch a consultation with focus groups moderated by an outside facilitator.

It seems that CBERclaus is coming to town, and I expect (or hope) to see it fully deployed within the next 5-10 years.

Invitation to Action

What can Jose do? If you are feeling a little bit like Jose (or Camila), recognize that these changes cannot be done overnight. Take baby steps, and winnow your exclusive 2019 CHBA’s invite to action:

  1. Check out the “Draft Practice Assessment Tool” designed by the Task Force at: https://lso.ca/about-lso/initiatives/compliance-based-entity-regulation and choose 3 or 4 things you want/need to develop/improve in 2019 - sounds like a great New Year’s goal to me!
  1. Contact LSO’s Coach and Advisor Network (CAN) and get yourself a coach (or as many coaches as you need) at: https://lso.ca/lawyers/practice-supports-and-resources/coach-and-advisor-network
  1. Enjoy your growth; and
  1. Consider participating in the upcoming Task Force’s consultation.

On behalf of the Canadian Hispanic Bar Association’s Board (or “La Pandilla de los 7”), I wish you a happy, healthy and successful 2019, and we look forward to working with you in the following months.¡Feliz Año Nuevo! Feliz Ano Novo!Antonio Franco Urdaneta is a marathon runner and the Memberships Director of the Canadian Hispanic Bar Association (2017-19). He is a multi-lingual workplace law-coach, investigator and lawyer located in the Great Toronto Area. Contact him at: antonio@schiblelaw.com

Previous Blog Post
Next Blog Post