The End of the Monopoly Over the Provision of Legal Services and Prosecutions for the “Unauthorized Practice of Law”, Part 2 of 2
[Part 1, last week, questioned the propriety of law societies’ exclusive control of their monopoly over the provision of legal services, and their prosecution of offences of “the unauthorized practice of law,” given the many reports documenting the fact that the majority of the population cannot afford legal services at reasonable cost, particularly so for litigation. It set out five reasons 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. The list of reasons continues here.]
(6) The existence of the legal profession’s monopoly over the provision of legal services removes the incentive to bring about the innovation necessary to make legal services available at reasonable cost. Therefore the necessary intensified application of electronic technology to the provision of legal services will not happen within the present system for providing legal services.
(7) In contrast to law society managed legal services, the necessary innovation has occurred within the Legal Aid field, even though it is inadequately funded. For example, the LAOLAW division of Legal Aid Ontario (LAO) has the best centralized legal research unit in Canada. It provides centralized legal research and document drafting and related services to lawyers in private practice who do legal aid cases. It has existed for 33 years and has saved LAO millions of dollars. It is therefore a proven, successful technology that provides the model by which such services could be made available at cost, to all lawyers for all of their clients and cases. Legal research and the drafting of documents are the bases of almost all legal services. Therefore a more sophisticated and intense application of electronic technology in their performance, as at LAOLAW, would substantially lower the cost of all related legal services. Such development of necessary technology is being ignored. LAOLAW began on July 3, 1979, when I became its first Director of Research (then called the Research Facility within the Ontario Legal Aid Plan, operated by the LSUC, and financed by provincial and federal government money). After a few years of developing its database, and its unique technology of centralized legal research, and critically important reputation for high quality legal research, it was providing specifically written memoranda of law in answer to nearly 5,000 individual client file requests per year from Ontario lawyers for their Legal Aid cases. It was more than paying for itself in reduced billings for legal research. So I asked senior management to be allowed to provide comparable legal services for lawyers’ non-Legal Aid cases as well. Such expansion would not only have earned a substantial profit, but also would have improved the servicing of Legal Aid cases because of the expansion of the database in size, diversity, sophistication, cost-efficiency, and the resulting acceleration of response time. The answer was “no,” permission was refused. As one of the LSUC’s Legal Aid Committee benchers said to me, “Although a large minority of the benchers would like the Law Society to give up the management of Legal Aid because it’s like a lightning rod for attracting public criticism, the majority fears that the government may turn it into a program of socialized law.” Servicing non-Legal Aid cases was seen to be a step in that direction, even though it could have significantly aided Legal Aid’s desperate financial situation in regard to its costs of management. The Legal Aid Services Act, 1998, S.O. 1998, c. 26, ended LSUC’s ownership and operation of the Ontario Legal Aid Plan, and in its place established Legal Aid Ontario (LAO), as a corporation without share capital, “independent from, but accountable to the Government of Ontario,” as set out in the Act (s. 3(4)). LAO’s first object, as declared by s. 4(a) of the Act is, “to establish and administer a cost-effective and efficient system for providing high quality legal aid services to low-income individuals in Ontario.”
(8) The fact that such innovation has occurred in the very unlikely, unfavorable, and under-resourced field of Legal Aid, rather than within a big law firm having the best, brightest, and best paid lawyers, and provisioned by the best resourced clients, proves that the legal profession will never willingly bring about the innovation necessary to making legal services available at reasonable cost to the majority of the population.
(9) Why have the many government-sponsored, law society-, and law school-sponsored reports that have analyzed this problem of the unavailability of legal services at reasonable cost not analyzed innovations like LAOLAW in depth? The answer is that such reports are written by legally trained people who are not trained in information systems and their technology. The problem is one of information creation, management, and marketing. The recommendations in these many reports go no further than to perfect the existing system, when in fact a new system is needed for the provision of legal services. Comparably, the perfecting of horse-drawn systems of transportation could never provide the capacity and cost-efficiency of motor vehicle-dependent systems of transportation. The problem and its solution are of that nature, i.e., short term pain in order to achieve the necessary long term gain of a fundamentally different system of service delivery. But are the career motivations of benchers of Canadian law societies compatible with the unpopularity that inflicting such inconvenience on lawyers in private practice would bring them? Every candidate during the LSUC bencher election of the spring of 2011 cited this problem as a serious one in their campaign materials sent to the membership. And almost every candidate cited it as the most serious problem facing the LSUC. But now, the problem has no presence on LSUC’s website. Its Access to Justice Committee should be prominently displayed, inviting comments and questions in regard to this most serious of law society problems. And where are the results of the Law Society’s efforts to control the cost of legal services stated and displayed for the public?
(10) Another of the objects of LAO, stated in s. 4(d) of the Legal Aid Services Act, 1998, is, “to monitor and supervise legal aid services provided by clinics and other entities funded by the Corporation.” This is a continuation of the “clinic funding” function of legal aid that has existed in Ontario for several decades. LAO funds 80 community legal clinics, which are independent, non-profit organizations.
(See LAO’s clinic “Fact Sheet”.)
They could be expanded in purpose and number to provide the infrastructure whereby legal services are provided to the public, so as to lower the cost of all legal services, and also thus making legal expense insurance more attractive and viable. As a result, the necessary infrastructure of legal research and related support services, and operating legal offices, and management know-how and experience, by which the government could share management of the monopoly over the provision of legal services with law societies, already exists.
(11) To preserve the present system by which legal services are delivered by the legal profession requires that its monopoly over the provision of legal services be defined in terms of the needs of lawyers in providing such services, in the way that lawyers would define such needs, rather than in terms of the needs of the population in obtaining those services, in the way that the majority of population would define their needs. Specifically, the definition of “at reasonable cost” should be based upon the needs of the population, and not the needs of lawyers. The law is that of the residents of Canada, and is not a commodity for lawyers to sell as we see fit. The selling of legal services cannot be allowed to block access to the law in situations wherein the assistance of a lawyer is necessary in order to avail oneself of the rule of law and constitutional rights and freedoms.
(12) In other words, the fact that this problem as to the “unavailability of legal services at reasonable cost” has been a serious one for decades, and is getting worse, puts the monopoly that lawyers have over the provision of legal services in need of a shared partnership with government-supported Legal Aid organizations, and legal expense insurance programs, that will: (1) bring legal services to the middle-income and poorer people at reasonable cost; and, (2) make the constitution of Canada an honest document. These two changes will never happen as long as law societies have exclusive control of their monopoly over the provision of legal services.
The constitution of Canada is at present a lie in regard to the availability of the rule of law and constitutional rights and freedoms for the majority of the population. Therefore, change it, or change the funding of the legal services it requires to make it an honest document. Until then, prosecutions for the unauthorized practice of law against non-lawyers who provide legal advice to others who cannot obtain legal services at reasonable cost, should either be successfully defended or stayed, as argued above, or conducted by Crown counsel.
The above arguments are based upon the constitutional law doctrine of “structural argumentation” (see: Robin M. Elliott, “References, Structural Argumentation and the Organizing Principles of Canada’s Constitution” (2000), 80 Canadian Bar Review 67, and decisions such as the, Reference Re Manitoba Language Rights,  1 S.C.R. 721,  S.C.J. No. 36, the, Reference Re Secession of Québec,  S.C.J. No. 4,  2 SCR 217, and the, Reference re Remuneration of Judges,  S.C.J. No. 75,  3 S.C.R. 3, to argue that the need for access to the rule of law, and to constitutional rights and freedoms, dictate that law societies in Canada cannot enforce a monopoly over the provision of legal services that enables their members to charge fees of whatever size they see fit. Access to the rule of law and to constitutional rights and freedoms should be enforced so as to prevent lawyers from preventing the majority of the population in Canada from accessing legal services from lawyers at reasonable cost. More specifically, because law societies have failed to regulate the cost of legal services, government is justified in putting in place a new delivery system for legal services. The monopoly over the provision of legal services requires not only competent and ethically provided legal services, it also requires that all services within the scope of that monopoly be provided at reasonable cost. For law societies to prosecute instances of “the unauthorized practice of law” so as to maintain a régime of legal services available to the majority of the population only at unreasonable cost, is to maintain a monopoly over the provision of legal services beyond that granted by law. That is a contradiction of the principle that, “access to justice is a basic right,” which is the principle stated in the first line of the Introduction of, Middle Income Access to Justice, by Professors Michael Trebilcock, Anthony Duggan, and Lorne Sossin (University of Toronto Press, 2012).