Small Town Lawyers and the Future

I’ve been in Europe all week, and my sole access to information has been La Republicca, Corriere and 2 minutes of excruciatingly slow dial-up access. So I haven’t been able to follow Slaw as closely as I should.

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At at the Law Society’s Solo and Small Firm Conference ten days ago, my partner Gavin MacKenzie spoke as the Treasurer about the looming problem of access to legal services outside the big cities.

As he travels to meet with County Law Associations he’s learned in community after community that Ontario’s small town lawyers are an aging breed whose ranks aren’t being replenished by new graduates. The average age is 55 and within a decade fully half expect to leave the practice of law. We face the very real possibility that not merely will legal services be priced beyond the average income but there simply won’t be lawyers to provide those services.

I pause to observe that paralegals may be perfectly positioned to exploit these market failures.

So why aren’t younger lawyers opting for small town practice?

Economics: with margins on conveyancing cut to the bone and with the rise of title insurance, the demise of personal injury litigation, and legal aid being tightly controlled by its government funders, its tough to make a living, even given lower costs of living and business overhead.

Specialization: I sense that its tougher now than it ever was to be a general practitioner, willing to take whatever comes through the door.

Legal education: as the cost of legal education has increased the debt load gets tougher to repay at salaries that may be a fraction of big city firms. The distorting effects of NYC starting salaries are felt far afield. And the law schools haven’t been focussing on small town generalists. Ontario’s Bar Admission Course has been slimmed down too, and must serve the entire body of graduates.

So what’s to be done?

Following on the model of subsidizing new medical graduates to practise medicine in underserved or smaller communities, we may have to fund debt relief for those willing to work as lawyers in similar locations.

All of us involved with the legal profession need to remind ourselves that solos and small firms dominate the numbers of the profession and that the world of Bay Street represents a small and atypical minority that can appear so dominant that it distorts perceptions.

Technology may play its part. The Law Society’s Solo and Small Firm Conference attracted 250 lawyers hungry to learn about practice management, marketing and how technology can help. We need to take the show on the road though. Richard Susskind has long theorized about the potential for consumer oriented intelligent systems to package legal advice to meet a vast latent market for legal services. We’ve seen more of this kind of innovation in Britain though Richard Granat and others in the SE have been doing some pioneering work.

Legal information has been subject to price increases that have far outstripped inflation for a generation. Equipping a basic law library for a general practitioner remains expensive. Web access to statutes and regulations helps as does CanLII. But we haven’t seen the sort of cheaper alternatives like Loislaw or onelexis.com in smaller markets like Canada. Indeed the acquistion of QL and the evolution of Thomson West’s offerings has only increased rates to the point where it becomes more difficult for solos and smaller firms to justify the expense.

The model of sponsoring basic legal information that the Chambre des Notaires pioneered in L’Inforoute Notariale might have more traction given collaborative tools like wikis.

We need more hard thinking before shifts in demographics get translated into a new problem of access to legal services.

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Comments

  1. higher costs for legal services in remote communities partially reflect actual costs of providing services there. Are we sure we want to be subsidizing people who live in these places by making it cheaper for them to hire lawyers? after all, if someone voluntarily chooses to live in the middle of nowhere to gain certain advantages (cheaper real estate, better air quality, etc.) then maybe they should also bear the costs which come with that.

    isn’t it better to subsidize access to legal services based on the client’s income, not on the client’s place of residence?

  2. Here’s an additional factor in the small-center bar’s contraction: competition for legal talent. Large-center practice is operating at unprecedented levels of profitability these days; even if small-center practices were still reasonably feasible, large-center practices are now so lucrative that it’s hard for any but the most diehard devotees of small-town life to pass up the opportunities in urban Canada.

    The law societies of British Columbia and Ontario have produced reports on this subject, and both identify it as a serious matter for the profession. I’m not entirely sure that it is, for a couple of reasons.

    First, that belief presumes that a shortage or absence of lawyers in small centers results in reduced access to justice in those locations. Lawyers have long believed that only they can really provide legal services competently, even as the alternative legal services market (primarily paralegals, as Simon points out, but also including title insurers and do-it-yourself will CDs) continues to flourish every year. It would hardly behoove the LSUC, for instance, to maintain that lawyers are a sine qua non for access to justice when the LSUC itself has battled successfully to gain the right to regulate paralegals. Before we decide that only lawyers’ services pass the threshold of providing access to justice, maybe we ought to let someone else try. If lawyers really want to ensure the best possible world for access to justice, they should help throw open the legal-services marketplace to as many competitors as the market will allow, and let clients sort the wheat from the chaff. Perhaps needless to say, I don’t think that’s going to happen.

    Secondly, it’s not clear to me that law societies ought to be responsible for ensuring what amounts to a lawyer in every community, like a chicken in every pot. Law societies are statutorily charged with governing the profession in the public interest – hatching, matching and dispatching lawyers, to paraphrase the TV show. The law societies are not, I don’t think, mandated to ensure access to justice; certainly, they have neither the funding nor the authority with which to accomplish that. If the marketplace is pulling lawyers away from smaller centers and towards the cities – which is happening in the general population, as yesterday’s census results confirm – then I don’t see why lawyers’ governing bodies should attempt to maintain what amounts to an artificial geographical distribution of lawyers that belongs to a different demographic generation.

    I’m doubtful in any event that the debt-relief option for lawyers relocating to smaller centers is the answer. Skyrocketing tuition fees are a relatively recent phenomenon, but small-center Canada has been failing to recruit new lawyers for much longer, as the average age of its current lawyers (55) attests. It also assumes that new lawyers will choose Red Deer over Calgary or Smiths Falls over Toronto primarily if their student loans will be paid off more quickly, and I’m not sure there’s evidence to support that. I don’t think these sorts of incentives have worked very well with doctors, for instance.

    What this whole thing really presages is a discussion of who is a lawyer, and why. For all the organized bar’s contempt for paralegals, your average solo in Wawa, Glace Bay or Trail has a lot more in common with the local paralegal than he or she does with a pharmaceutical patent lawyer in Ottawa, a tax litigator in Vancouver, or an oil-and-gas dealmaker in Halifax. The general term “lawyer” now encompasses such a wide diversity of professionals that it doesn’t really make sense to categorize them under one term.

    In future, I think we’ll see the legal services marketplace continue to break down along price points and risk factors. Already, as Simon has pointed out, the type of legal work most commonly found in small towns simply doesn’t pay enough to justify law society fees, professional insurance and practice overhead (or at least, to supply the type of income most lawyers still consider commensurate with their professional standing). Real estate alone is pretty much done as a lawyers’ staple; only title insurers and banks have the volume and risk coverage to properly manage it anymore.

    So long as it costs a lot of money to obtain and maintain a lawyers’ licence, the type of legal work that can justify the cost of a lawyer will continue to shrink – in no small part because, as Simon mentioned, technological advances will continue to reduce the cost of many services lawyers have traditionally been able to offer exclusively. The urban-rural breakdown of lawyer distribution is as much symptomatic of this change in the legal marketplace as it is of any other associated demographic trend.

  3. Noel, it seems that you are not familiar with the economics of Canada. Canada, much like Germany, is a breakbasket economy. Nearly all of our resources come from the north in the form of mining and forestry. Major secondary resources such as wheat also come from vast rural zones. The cities are full of service industries, many of which can be traced back to these natural resources. For instance, if you look at what is actually being traded on Bay St., you’ll notice it is not coming from downtown Toronto. Our cities could hardly exist were it not for people who “choose to live in the middle of nowhere.” Therefore it has long been a concern of our government to ensure that people continue to be able to live in work in these areas as otherwise our economy would collapse. Australia experiences a similar problem trying to keep people living and working in the outback instead of moving to the cities. We need to ensure that people have access to medical and legal services wherever they may choose to live both for the sake of our economy and for the sake of personal choice and freedom of lifestyle.