Malcolm M.Mercer

Lawyer Candidate – Toronto Region

Priorities

To work with the newly elected bench in the development of a strategic plan for the 2019 to 2023 term and to lead Convocation as Treasurer from June 2019 to 2020

Background

Treasurer of the Law Society and Elected Bencher in 2011 and 2015

Former Chair of the Professional Regulation Committee and Advertising and Fee Arrangements Working Group. Former Co-Chair of ABS Working Group

Member of numerous Law Society committees, task forces and working groups

Former Chair of CBA Ethics and Professional Responsibility Committee and team lead for regulatory and ethics team for CBA Futures Initiative

Adjunct Professor, Legal Ethics, and Legal Ethics columnist for slaw.ca, member of the Canadian Association for Legal Ethics, co-chair CBA/FLSC Legal Ethics Forum

Partner, former General Counsel and National Litigation Practice Leader, McCarthy Tếtrault LLP

CBA Louis St Laurent Award and 25 Most Influential Lawyers 2014

Enjoy this candidate’s “Of Counsel” interview while you read more about them!

Candidates I support

As Treasurer, I look forward to working with the newly elected bench. There are many great incumbents and many great new candidates. I prefer not to provide a list of my top preferences given my role.

Something the LSO does that it should stop doing

For the last decade, the LSO has debated the “articling question”. Having made a decision, the time has come to address competence in practice which has not had needed attention because of the long articling debate.

Something the LSO doesn't do that it should start doing

The LSO should work to encourage and allow lawyers to be more innovative including by adopting new technologies. At the same time, the LSO should accept that new technologies can and should be allowed to provide some legal services that lawyers can’t provide at a price that ordinary people can afford.

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All Candidates were invited to comment on any or all of the following topics

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Improving access to justice requires simplification the law and simplification of the administration of justice, which is fair but unaffordable for ordinary people. It also requires innovation in the ways that legal information and legal services can be provided, whether by lawyers, non-lawyers and or by the use of technology. Allowing new ways of providing legal services in areas of unserved legal needs should be the LSO priority given its mandate.
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Convocation has two roles namely acting as the board of directors of the LSO as an entity and acting as the governing body of the legal professions. If we are to continue as a self-regulation profession, the latter role requires an elected body that is large enough to reflect the diversity of our professions by election but small enough to be an effective decision-maker. A smaller group is required to provide ordinary corporate governance of the LSO.
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The cost of legal education has increased dramatically since the 1990s which is of significant concern. That said, the Law Society does not have authority to regulate law schools or tuition. Law schools are, and should be, independent from the Law Society. However, the Law Society and the law schools should consider working together to reduce the time and cost required to become a lawyer.
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I support the Statement of Principles. While history generally shows that our society and our profession ultimately embrace minorities, progress has always been too slow whether one looks at the challenges faced by non-English speaking Europeans, Catholics and Jews in prior generations and the challenges still faced by women and by LGBTQ and racialized peoples in varying ways and degrees. And there are particular challenges now facing Indigenous and black lawyers.

The Statement of Principles allows an annual opportunity for reflection and, for those who choose to do so, an opportunity for voluntary commitment. No belief or expression is compelled although acknowledgement of existing legal obligations is required.

Artificial Intelligence in Legal Service Delivery

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In my view, we are currently in the hype phase of the AI project. AI is being used in larger practices in predictive coding and in due diligence. AI that assesses legal issues has developed in the tax and employment areas. All of this is mostly in firms that serve big clients but not firms that serve ordinary people. There is relatively little issue with lawyers using AI in practice subject to quality assurance. Indeed, we should be encouraging innovation in practice including in using AI. That said, it is foreseeable that AI will be able to provide cost-effective legal services direct to the public in the years to come. I doubt that we can or should try to interfere with that. Whether the LSO should seek to regulate technological legal services or should remain a self-regulator of legal professions is an important and difficult question.
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I support the decision made by Convocation in December 2018. We have debated this issue for the last decade. We should now get on with a serious review of post-licensing competence and put the pathways debate behind us.
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Unbundled legal services are one part of the answer to unmet legal needs. I support the provision of unbundled services but doubt that, like the many other valuable initiatives, is “the answer”.

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For generations, regulating individual lawyers worked. But in 2019, many lawyers work together in firms such that professional conduct is often governed by firm practices, procedures and cultures rather than merely by individual choices. It is time to recognize that proper professional conduct is best ensured by focusing both on individual lawyers and on the firms in which they practice. Clients have long been entitled to hold both individual lawyers and their firms accountable. This should also be the way that we govern ourselves.
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I support the inclusion of a duty of technological competence in the Rules of Professional Conduct. But this is more symbolic than effective. Competence, including technological competence, is not assured by conduct rules.

Reconciliation and Indigenous Communities

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I support the work of the Equity and Indigenous Affairs Committee and the Indigenous Advisory Group as well as the Indigenous Framework and the Report of the Review Panel. The LSO needs to work to ensure that legal services are available to indigenous communities and to ensure that those legal services are provided competently and professionally.

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With the adoption of the Civil Society project which permits charities and not-for-profits to deliver free legal services to their clients, the ABS Working Group has completed its work. Based on the evidence to date, I doubt that there is material advantage in allowing non-lawyer ownership in traditional law firms and think that allowing such ownership would require a substantial change to our regulatory processes. But I also think that new ways of providing legal services, including by technology, are required to address unmet legal needs. I think that we will have to be open-minded about new ways of providing services beyond our professional paradigm.
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I chaired the Advertising and Fee Arrangement Working Group and support its recommendations which have been adopted by Convocation.

Specific Enhancements to Licensing System

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I support the enhancements adopted by Convocation in December and resolution of the issue of skills assessment at licensing.

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Yes. The Law Society properly ensures that CPD is available that advances the mandate of the LSO to ensure competent delivery of legal services. While it is good that there are other providers, there is also value in there being a number of providers and the reality is that some important CPD will not be delivered if the LSO doesn’t provide it. In addition, the LSO provides free CPD in areas where appropriate.
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The LSO supports licensees through its practice management helpline, practice reviews, spot audits, CPD and the provision of practice resources. In my view, the next appropriate step is to have the profession self-assess against best practices in practice management and then to make best practices resources available. Our current paradigm is to make resources available and to assess for minimum standards for a limited number of practitioners each year. I think that encouraging better practices by all should be added to our approach.
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The LSO has done important work in making the Member Assistance Program (the MAP) available and encouraging lawyers to make use of the MAP. The Law Society has taken significant steps in recognizing the importance of mental health issues in conduct investigation and prosecution. The report of the Mental Health Working Group continues to guide the LSO. The LSO continues to wrestle with the best approach to addressing issues of capacity.

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The fundamental work of the Law Society is (i) ensuring that appropriately qualified lawyers are licensed and that licensed lawyers practice competently and conduct themselves professionally and (ii) determining which legal services should only be provided by licensees and the scopes of practice of licensees. Funding this work should be the priority.

Diversity and Inclusivity Priorities

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The priority should be effective implementation of there commendations of the Challenges Working Group as adopted by Convocation in December 2017.

Scope of practice for paralegals and non-licensees

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I support the decision made by Convocation to develop a scope of practice for paralegals in family law that is carefully based on an assessment and training of required competencies to establish a special license. When the majority of family law litigants do not use lawyers, it is no answer to say that they should have no other alternative. We should be open to new legal service providers in areas that are not served by lawyers. It makes little sense to prohibit others from providing that which lawyers do not effectively provide. Whether the better approach is to “unreserve”/deregulate certain areas as the English have done, to expand the scope of trusted intermediaries who now provide legal information, to encourage or license navigators and form-fillers, or to expand paralegal scope is not so clear.

FOLA asks: Thoughts on Funding Staffed Local Law Libraries

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I support the LIRN work jointly being undertaken between FOLA, the TLA and the LSO.

Other topics

Candidate contributions on additional topics

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The LSO should invest in expanding the Coaching and Advisor Network and developing formal mentorship programs that promotes the transfer of knowledge from senior practitioners to junior lawyers (substantive and practical advice)

Other topics

Candidate contributions on additional topics

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Other topics

Candidate contributions on additional topics

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