The Power of Perspectives

The Canadian Bar Association

Yves Faguy

Legal marketplace

The billable hour is effectively dead

By Yves Faguy January 23, 2017 23 January 2017

The billable hour is effectively dead


The 2017 edition of the annual Georgetown/Thomson Reuters Report on the State of the Legal Market is out.  Almost a decade following the global financial crisis of 2007-2008, the report describes a lost decade of sorts marked by stagnating demand for law firm services, decline in productivity for many lawyers – measured as a reduction of 144 billable hours per year per lawyer, and client pushback against rate increases:

In considering realization rates, it must be noted that comparing collection realization to standard rates undoubtedly produces a somewhat skewed result, since in most firms standard rates have long since ceased to have any real significance for most clients. Like “rack rates” in hotels, standard rates in law firms have effectively become nominal rates that are arbitrarily set and are almost never paid by any significant client. Accordingly, it is perhaps more meaningful to look at the decline in realization over the past decade as measured against worked rates, or the rates actually negotiated with clients.

The report points to evidence that firms have managed to keep their expenses under control but warns of declining realization rates and calls into question the ability of firms to rely much longer on rate increases no matter how modest they may be:

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Criminal Law

Strip-searching of women in Canada: Wrongs and rights

By Yves Faguy January 5, 2017 5 January 2017


In the latest issue of The Canadian Bar Review, Michelle Psutka and Elizabeth Sheehy of the faculty of law at Ottawa University remind us that, in its 2001 R. v. Golden ruling, the Supreme Court of Canada recognized that strip-searches of women, particularly by male police officers, are “inherently humiliating and degrading’ and therefore should not be a routine practice. And yet, the authors write, illegal strip-searching of women “remains a persistent problem in Canada.” They offer some reasons why our legal system has failed to end the practice, and propose some solutions. CBA National sat down with Michelle Psutka to discuss their findings:


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Legal marketplace

Third-party litigation funding enters a new chapter

By Yves Faguy December 22, 2016 22 December 2016

Last week, Burford Capital, the world’s largest litigation finance company the world, Ltd., bought its main rival Gerchen Keller Capital for $US 160 million. The tie-up is being hailed as  a sign that the litigation funding industry is maturing in the U.S (it is far more established in other jurisdictions, namely Australia and the UK).

Alison Frankel reported on the reasoning behind the tie-up:

The two companies operate via different business models - and the combined Burford plans to continue to use them both. Burford's management owns 13 percent of its publicly traded equity, so its principals make money alongside investors when the firm's investments pay off.

Gerchen Keller, by contrast, is structured like a hedge fund. It has raised more than $1 billion in a handful of closed-end investment vehicles, mostly from large institutional investors such as university endowments and public pension funds, including Michigan and Texas municipal employee funds.

Gerchen Keller earns a stream of income from the 1-to-2 percent management fees it charges for deciding how to invest the money it has raised. It may also bring in performance fees of 15 to 50 percent if its investment decisions pay off. Gerchen's funds have not been in operation long enough to have kicked off performance fees, which will belong in the future to the combined entity.

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Legal marketplace

Looking to 2017: Jordan Furlong on the state of the legal marketplace

By Yves Faguy December 21, 2016 21 December 2016

Looking to 2017: Jordan Furlong on the state of the legal marketplace


As we close out the year, it’s time to take a look at where the legal market is at, and where it might be going. I caught up with legal market analyst and principal of, Jordan Furlong, for what is becoming an annual year-end tradition, where we discuss key developments in the legal industry.

CBA National: Where do you see the legal market going in 2017?

Jordan Furlong: There are probably two parallel tracks of change. Within the legal profession, law firms and the legal community, my sense is that we will continue to see a slow but steady evolution of service provision. I’m not seeing any imminent sign of major change or extraordinary innovation. For the most part the profession’s leadership — law societies, courts and judges, attorneys general, and of course bar associations such as the CBA — generally seem to be positioning themselves in favour of cautious, careful progress towards a number of broadly stated goals. That seems to be consistent with what we’ve seen in the past few years.

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Corporate taxes

Apple's legal challenge to EU's Irish tax decision

By Yves Faguy December 20, 2016 20 December 2016


Apple and the Irish government are challenging the European Commission’s August ruling, published yesterday, ordering Ireland to recoup undue tax breaks to the tune of $13 billion euros. The Commission found that the Irish government had selectively conferred an advantage on the iPhone maker – a measure, it says, that carries the risk of distorting competition and affecting trade between EU member states.

Under the terms of the Treaty on the Functioning of the European Union, the measure amounts to state aid, which is forbidden under the common market’s rules.

Apple has responded by charging that the EU has “retroactively changed the rules, disregarding decades of Irish tax law, U.S. tax law as well as global consensus on tax policy." The Irish government is making the case that tax matters are for each member state to decide.

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