The End of the Monopoly Over the Provision of Legal Services and Prosecutions for the “Unauthorized Practice of Law”, Part 1 of 2

Law societies in Canada should be preparing to share their monopoly over the provision of legal services, i.e., preparing for government regulation. In the interim, should they be allowed to prosecute the offence of “the unauthorized practice of law,” given that such prosecutions now aim to protect a monopoly over the provision of legal services that is greater than that granted them by law?

Until the problem of “the unavailability to the majority of the population of legal services at reasonable cost” is solved, the prosecutors of this offence should be Crown counsel, or at the least such prosecutions should require approval by Crown counsel. Lawyers’ monopoly over the provision of legal services should require either, (1) that they do all the legal work covered by that monopoly and do it at reasonable cost, or else, (2) that they lose exclusive control of that monopoly. The fact that the majority of the population cannot obtain legal services at reasonable cost is evidence that the monopoly is being exceeded. Such conflict of interest may bar such law society prosecutions and prosecutors. And it follows that prosecuting non-lawyers because they give legal advice to people who cannot obtain lawyers at reasonable cost, and cannot afford present unreasonable costs, is to bar the people so advised and aided by those non-lawyers from their constitutional rights under the Canadian Charter of Rights and Freedoms, in particular, s. 7 (fundamental justice), s. 11(d) (fair trial), and s. 15 (equality rights).

Therefore it can be argued that the “unavailability of legal services at reasonable cost” should give rise to these three Charter of Rights defences to charges as to the “unauthorized practice of law,” along with an argument for prohibiting law society prosecutors tainted by such conflict of self-interest (based upon the same reason that bars victims of crime from being the prosecutors of criminal offences, where the Attorney General intervenes; see the Criminal Code s. 2 definition of “prosecutor”).

If any such defences were successful, and such success made widely known, the many non-lawyer professional persons and paralegal workers who now provide “legal information” as a routine part of their work, would be able to give “legal advice” unencumbered by the supervision of lawyers. That would, of course, effectively end the monopoly.

But law societies are expanding the field of professionals they authorize to give legal advice: see the Report of the Access to Legal Services Working Group, May, 2012, of the Action Committee on Access to Justice in Civil and Family Matters. Page 11 of the Report contains this statement:

The activities and initiatives of the [Law Society of Upper Canada] demonstrate how law societies are increasingly recognizing that non-lawyers have a role to play in assisting people with their legal problems.

The Report’s recommendations are aimed at improving access to legal advice and other legal services for people of modest means. The companion report by the same committee, also released in May, 2012, presents recommendations for accessing court services; see the Report of the Court Processes Simplification Working Group; online at the same site.

Although neither statute nor case law clearly articulates that the lawyer’s monopoly over the provision of legal services depends upon the legal profession’s performing all legal services covered by that monopoly at reasonable cost, I argue that such relationship is dictated by constitutional doctrine because:

(1)
At present the constitution is a lie for the majority of the population, i.e., because of the law’s complexity, the rule of law and constitutional rights and freedoms declared by the Canadian Charter of Rights and Freedoms require the assistance of a lawyer, especially for litigation—see: British Columbia (A.G.) v. Christie, [2007] 1 S.C.R. 873, [2007] S.C.J. No. 21, at para. 22. Although the Supreme Court of Canada held in Christie that a “general access to legal services in relation to court and tribunal proceedings dealing with rights and obligations” is not a fundamental aspect of the rule of law (see paras. 23-27), it does not follow that the legal profession can preserve its monopoly over legal services free from government regulation or control of any kind, even when, as now, it has made legal services unavailable at reasonable cost to a large majority of the population.

(2)
Courts are clogged with unrepresented litigants; judges’ having to help such unrepresented litigants contradicts a judge’s appearance of impartiality when one party is represented by counsel and the other is not.

(3)
The unavailability of legal services to a large majority of the population at reasonable cost has been a serious problem for decades and is getting worse, which shows that law societies are not able to solve the problem. Therefore government intervention into the management of the law societies’ monopoly over the provision of legal services is justified. For example, a legal expense insurance (LEI) program, anchored within provincial legal aid organizations is necessary to make the rule of law and constitutional rights and freedoms available to all of society; see this recommendation explained in the article by, Sujit Choudhry, Michael Trebilcock, and James Wilson, “Growing Legal Aid Ontario into the Middle Class: A Proposal for Public Legal Expense Insurance,” in, Middle Income Access to Justice, edited by, Michael Trebilcock, Anthony Duggan, and Lorne Sossin (University of Toronto Press, 2012), at pp. 385-410, and see Michael Trebilcock, Ontario Ministry of the Attorney General, Report of the Legal Aid Review 2008 [the “Trebilcock Report”].

(4)
The prosecution of “the unauthorized practice of law” (e.g., ss. 26.1 and 26.2 of the Law Society Act, R.S.O. 1990, c. L.8) is necessary in order to protect the population against unqualified persons negligently providing inadequate and damaging legal services. But, as argued above, such prosecutions by law societies may be successfully challenged.

(5)
Legal Aid organizations are necessary but cannot be adequately funded by governments while the majority of the population cannot afford legal services, i.e., governments cannot in good conscience compel taxes be used to provide free legal services for the poor, which taxes are paid by people who themselves cannot afford lawyers. Therefore treasurers and presidents of law societies should not make public statements and issue press releases that criticize governments for not funding Legal Aid better (see, e.g., Law Society of Upper Canada press release of Feb. 5, 2007) when in fact it is the membership of those law societies who cause the problem that makes adequately funding Legal Aid organizations impolitic. In the introduction to Middle Income Access to Justice (p. 4) we find this statement:

This volume is the cumulation of a much longer initiative. Over two years ago, one of us (Michael Trebilcock) prepared a review of Ontario’s legal aid system for the Ministry of the Attorney General. One of the findings of this review was an acute lack of access to civil justice for lower and middle income earners in Ontario, manifesting itself particularly in an increasing number of unrepresented litigants. Not only was this a manifestation of injustice in itself, but it also raised major political economy problems in terms of the commitment of middle income earners to supporting a legal aid system of which they were never beneficiaries but only contributors as taxpayers, even while they faced similar denials of access to justice themselves. The attenuated commitment of middle income earners to the civil justice system is reflected in real per capita expenditures on health care and education in Ontario in recent years (both areas in which middle income earners have a significant stake). The point is that significant improvements in the delivery of public services are unlikely without the support of those who principally fund them, and that to gain this support, the improvements must be pitched to a broader constituency than those who are most obviously in need. For these reasons, this book focuses in particular on improving access to justice for middle income groups.

Therefore the LSUC got out of the legal aid business in 1998. But now ironically, it could justifiably be forced back into it by way of a legislated sharing of its monopoly over the provision of legal services with government.

[PART 2, to continue next week, suggests how to share the monopoly over the provision of legal services with government, so as to provide legal services to the majority of the population at reasonable cost.]

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Comments

  1. I think your argument is very compelling from a policy point of view.
    However, after the SCC’s decision in Christie which you cite, I am not optimistic about the use of Charter arguments to bring about reform to legal services regulation in Canada. Potentially more fruitful would be Competition Bureau action. The Bureau made a vague gesture in this direction in 2007, but now seems to have dropped the ball. Perhaps however the CB will take a page from its European brethren, and start taking anticompetitive self-regulation seriously? See e.g.

    Laurel S. Terry, “The European Commission Project Regarding Competition in Professional Services” (2009) 29 Nw. J. Int’l L. & Bus. 1 and the work of UK’s Office of Fair Trading, which played an instrumental role in bringing about legal services regulatory reform.