The long-standing monopoly on delivery of legal services is eroding across Canada. The current of consumer demand is steady and strong, seeking out a broader range of legal services and information, driven largely by cost, supply issues and technological change.
There is evidence of this erosion all around us, both within and without the bounds of the formal legal profession. Paralegals, notaries and agents provide specified legal services across the country, assisting with real estate transactions, wills, traffic offences and more. Courts are recognizing the needs of the self-representing litigant by providing self-help centres and creating online resources. Administrative tribunals hear from advocates and advisors, as often as or sometimes more frequently than legal counsel. Consumers turn first to the internet for their legal information needs. Law students are providing pro bono services in cross-sectoral teams with social work and criminal justice students in Winnipeg’s Legal Help Centre.
Although (or perhaps because) the monopoly is wearing away at the edges, lawyers and their governing bodies continue to cling tightly to this pillar of the legal system as we know it.
But it is the critical issues related to access to justice that will ultimately, I expect, have the greatest impact on the legal marketplace, as consumers relentlessly search for more affordable and more satisfactory alternatives.
In the face of increasing demand for affordable and meaningful access to legal services, the profession continues to struggle with how to respond. Committees are struck, research is undertaken and consultations take place; meanwhile, legal aid programs stumble along with limited resources, pro bono programs are swamped and the legal needs of many Canadians remain unmet.
There is a way to bridge the widening gap between those who can access traditional legal services and those who cannot, and that is through collaboration. This is just the approach advocated by Lynn Burns of Pro Bono Law Ontario in the July 22 Law Times article Pro bono advocates call for more co-ordination to address access to justice:
Instead of doubting the role of pro bono, Burns says governments and the legal profession should focus on creating a more seamless co-ordination between pro bono services and other ways of addressing access to justice.
“We’re all sort of working in silos now,” Burns says of the various legal service providers.
If the first step is to bring the legal services providers together (which I wrote about here) and work collaboratively, what comes next? I suggest that we must look at collaboration through a much wider-angled lens, including those within and those outside the bounds of the traditional legal profession.
Richard Susskind calls this liberalization of legal services. In his recently published article, Tomorrow’s Lawyers (based on the book of the same title), he outlines the process and progress made towards liberalization of the legal profession in England and Wales and notes that:
Crucially, even where there is not liberalization, we are witnessing what I regard as a liberation from the limitations of narrow thinking about the way in which legal services can and should be delivered. No one can know where this might lead. But we can be sure that major change is upon us.
The idea of liberation from the limitations of narrow thinking is appealing and entirely consistent with Burns’ comments about the need to shift from working in silos to seamless coordination and collaboration. We need to look at the issues related to access to justice from a wide range of perspectives, and work collaboratively to develop solutions.
When we open the doors to our silos and cross traditional professional and sectoral lines, change is bound to happen. In Innovation Needs a Lingua Franca, Whitney Johnson writes about lessons learned through a cross-cultural assignment and notes that:
Innovation happens when we cultivate diversity and cross-disciplinary collaboration, when we play in the in-between. If you've learned a new language or lived in a foreign country for a time, you have likely experienced these kind of mind-opening lessons. This can, at times, feel very unpleasant, just as immersing myself in a new language and culture required a big move out of my normal way of living and thinking. But it's this willingness to live in the unknown for a while that opens a space for truly new ideas. As you are attempting to collaborate, if it feels foreign and outside of your comfort zone, you just might be on the right track.
Multiple sectors are already involved in the delivery of legal services, whether directly or peripherally – financial services, IT, counselling and therapeutic services and more. If we were to draw on their collective wisdom to tackle the issues of access to justice with a multi-disciplinary approach, not only would we enhance the discussion, but we would also broaden the range of potential solutions to issues identified. While it may be a little awkward at first as we navigate the "in-between" the end result would surely be worth the effort.
Whether through narrowing the definition of legal services or expanding the exceptions that permit those who are not lawyers to provide specified legal services, the legal marketplace needs to be opened more broadly if the legal needs of most Canadians are to be met. Susskind predicts that:
…when liberalization [in England and Wales] leads directly to the development of new legal services that more fully meet the growing ‘more for less’ challenge of clients, this will have an international ripple effect.
I think he is right about this and that those very ripples are already beginning to wear away at the pillar of monopoly here in Canada.