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Helping sole practitioners survive and thrive

|Written By Gavin MacKenzie

 The vote was 40 in favour, only two against. At its June Convocation, by this overwhelming majority, the benchers of the Law Society of Upper Canada voted to adopt a practice management review program. The objectives of the program include providing practical mentoring and advice to lawyers in their early years of practice, preventing complaints and liability claims, and demonstrating to a skeptical public that the self-governing legal profession takes seriously its mandate to ensure high standards of competence.

In an article provocatively titled "A War on Sole Practitioners" (Law Times, July 17, 2006), bencher Gary Gottlieb claims that the program "will not apply even-handedly across the entire spectrum of practitioners in private practice, but will apply to sole practitioners." He likens practice management reviews and spot audits to painful medical procedures. And, in an earlier article ("Do we really need random practice reviews?" Law Times, March 13), he describes the practice management review program as "an unreasonable and costly witch hunt."

Some of the 40 benchers who voted to adopt the program seem to think that it might be just a touch unfair to attribute their support for it to hostility toward sole practitioners -- some of them are sole practitioners themselves, after all ? and think that someone should respond to Gottlieb's comments.

Gottlieb is simply wrong in his assertion that the program will not apply even-handedly across the spectrum of lawyers in private practice. The only selection criteria will be year of call (one to eight years) and whether the lawyer is in private practice. No distinction will be drawn based on firm size.

Gottlieb made the same assertion in Convocation, and was corrected. The entire premise of his argument that the practice management review program targets sole practitioners is false.

So is his claim that having a practice management review or a spot audit is comparable to having a painful medical procedure. The law society conducts 1,000 spot audits a year. All the lawyers who have been audited are surveyed. Ninety-three per cent have found the process constructive. (Most of the remaining seven per cent already had excellent records and financial practices and were not in need of advice.) Ninety-eight per cent found the audit report useful and 100 per cent found the auditor's conduct professional and helpful.

The practice review program is new, so we don't have comparable customer satisfaction data yet. But it is likely that a similar proportion of the lawyers whose practice management standards are reviewed will welcome constructive recommendations they receive to improve their practices.

That has been the experience of other self-governing professional organizations who have adopted comparable programs. The College of Physicians and Surgeons of Ontario calls its well-established and successful equivalent a "peer assessment program," while the Institute of Chartered Accountants of Ontario and the Barreau de Qu?bec call their programs "practice inspections." By whatever name, the goal of such programs is to enhance the quality of practitioners' services to clients by providing constructive feedback. Not to inflict pain on sole practitioners.

Both law society discipline and LawPRO statistics show that the early years of private practice pose a risk for the development of practice difficulties. Beginning the practice management review program with a focus on members who have been called to the bar for the formative one to eight years and who are in private practice is a risk-based approach that is justified both by data and common sense.

This approach allows the law society to step in and help correct behaviours when new practitioners are potentially vulnerable and bad habits can develop. By offering recommendations and guidance to new practitioners at this stage we can prevent deficiencies from becoming more serious regulatory issues. We may even be able to help marginal practitioners to flourish.

Since the spot audit program began to use similar selection criteria its statistics have demonstrated that the failure rate of new firms has dropped considerably.

One of the most important initiatives of this Convocation has been to help sole practitioners and small firm lawyers to survive and thrive. We struck a task force to recommend ways in which as a profession we can preserve and strengthen the practices of the 94 per cent of Ontario law firms that consist of five lawyers or fewer. These sole practitioners and small firms provide the vast majority of legal services to individuals in search of access to justice.

We struck, and funded, a working group to implement the task force's recommendations. The task force -- and Convocation -- recognized that continuing access to legal services is dependent not only on current members in sole practice or small firms maintaining viable practices, but on additional lawyers also choosing that practice model.

The task force's first recommendation was that a unit within the law society's professional development and competence department "focus on active assistance through practice management advisory services, continued development of supportive tools and communication of available practice resources." That is precisely what the practice management review program is designed to achieve, for all Ontario lawyers in private practice.

Not surprisingly, all the members of the sole practitioner and small firm task force who were present in Convocation in June, except for Gary Gottlieb, voted to adopt the practice management review program. Gottlieb, in fact, was the only practising lawyer who voted against the motion.

If we can help instill sound and effective practice management standards in lawyers in their early years of practice, prevent complaints and liability claims, and demonstrate our determination to ensure high standards of quality and competence all at the same time, why wouldn't we do it?

The notion that Convocation is dominated by large firms is popular in some quarters, but is inaccurate. Only 11 of the 40 elected benchers practise in firms of more than 10 lawyers. The implication that the 40 benchers who voted to support the practice management review program did so because of hostility toward sole practitioners is preposterous.

Gavin MacKenzie is the treasurer and a bencher of the Law Society, a partner in Heenan Blaikie LLP, and the author of Lawyers and Ethics: Professional Responsibility and Discipline.

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