Some Ground Rules for a Constructive ABS Discussion

• Author: Mitch Kowalski
• Date: January 08, 2015

As is apparent from the OTLA, and the many comments on my previous post, the upcoming Bencher elections in Ontario finally have an issue that has grabbed the attention of lawyers across the province: Alternative Business Structures.

While this issue may drive better voter participation in the April election, it has also greatly divided the profession in this province.

One can already see the huge generational rift among lawyers; those at the twilight of their careers fighting to retain a 19th Century business model, while younger lawyers want to move the profession into the 21st Century so as to better serve their clients and provide a better work environment for themselves.

In deciding this issue we must remember that we’re lawyers; trained to deal with matters with emotional detachment, as well as with honesty, logic and evidence. Indeed, principles of good governance require decisions to be made in such a way.

LSUC needs to create some ground rules for the ABS discussion once it hits Convocation, in order to keep the discussion constructive and, at the very least, to keep the profession from looking like pompous, self-aggrandizing protectionists.

I suggest the following:

1. A bench-mark or metrics for making a decision must be set in advance. OTLA and others have determined that there is “no compelling argument for ABS” – but they do not set out how “compelling” is defined. Simply making a statement that there is “no compelling reason” for ABS without citing the metrics by which “compelling” can be objectively measured is not logical or reasonable, nor is it in the best traditions of the legal profession. Perhaps a suitable, reasonable and logical, metric or benchmark is similar to that used for new drugs in Canada; does the potential value of ABS outweigh the risks...