CBA Access to Justice Report Is More Pie-in-the-Sky

Last week I visited the newly created Corktown Common. For those readers familiar with Toronto, it’s a new urban park that sits on the west bank of the Don River, just south of King Street – on lands that 25 years ago, were considered to be irredeemable industrial wasteland. Plans to revitalize the site as the Atiritari housing project never got off the ground for a variety of reasons – cost of environmental remediation being one, and lack of a burning platform another. It’s human nature not to do anything unless we absolutely have to. So it was only when Toronto won the right to host the 2015 Pan-Am Games that work was commenced to redevelop these lands. The site (who’s name went from the “West Don Lands” to the “Canary District”) will be the location of the Pan-Am athletes’ village. Redevelopment had to get done in time for the Games. Likewise, Pearson Airport, which does not have any direct rail link to downtown Toronto, will finally receive one – in order to accommodate Games patrons.

None of these things would have happened without a pressing need and a firm deadline.

So too with the CBA’s new report on Access to Justice. This report, like all good CBA reports, will soon gather dust on the shelf. There are no Pan-Am Games to force an opening of government purses, no pressing need (despite all the polemics in the report) to create change by a specific date – so the report, and the ideas in it, will die.

In ten years time, the cycle will repeat itself. Another generation of CBA executive leaders will pick up the torch and again rail against the horrible lack of access to justice in Canada. Another report will be prepared – and then ignored.

Let’s be very clear and pragmatic about this issue. There appears to be very little political capital to be gained from pouring money into access to justice projects. No votes to be won. No majorities to be gained or sustained.

Much of the CBA Report calls for more resources to be put into legal aid, into new court systems, into new centres of excellence and on and on and on.

Interesting ideas, all of them. But what the report fails to answer is the fundamental question: who is going to pay for this? Every government in this country will tell you, “there isn’t any money,” so I’m troubled that the report assumes unlimited funding is available. I’m equally troubled that the writers have ignored the economic realities in which we live.

I would have preferred the report to advise what can be done now. Today. Not what should be done by 2030 when nearly half the current membership of the Canadian Bar has retired.

I would have preferred a report that outlined what can be done within current budgets.

How do we re-jig the current system and practices without spending more money?

How do we amend our regulations to allow lawyers and courts to deliver more creatively and efficiently? What if oral submissions to court were the exception rather than the rule? And what if oral appearances were done at precise set times via skype or telephone? What if scheduling was done over the phone or internet, rather than in person.

I had hoped for at least a few paragraphs discussing how a change in rules would allow lawyers to deliver services with greater creativity.

However, there is a sense in the report that the current rule regime is perfectly OK. It’s just everything else that needs to change.

For example, the report states that lawyers in “people-centred law practices” should work with integrated teams in a shared practice setting with non-legal service providers. This is good news, except the report ignores the current rule that prohibits such practice (at least in a way that is attractive to any non-legal service provider). How could this be over-looked?

Why didn’t the writers take the bold step of saying that the CBA position on MDPs is wrong and that CBA’s failure to push for viable MDPs at the end of the last century has only increased the access to justice problem in this country?

Most bizarrely, no mention is made of alternative business structures as used in the UK or Australia – structures that would allow for imaginative combinations that would truly allow for greater access to justice. Afterall, the raison d’etre of the legislation allowing alternative business structures in the UK was to provide better access to justice all within a budget that is manageable to government.

However, my most pressing concern is that the writers ignored the most basic tenet of access to justice:

Law was not created to provide a livelihood for lawyers, paralegals, court staff, masters or judges.

This tenet is a variation of Richard Susskind’s similar comment in The End of Lawyers – it should be the starting point of every solution to access to justice in this country.

And if access to justice calls for less lawyers, less court staff and less judges – then so be it.

I have always been concerned that the CBA’s stated mandate,”[to be] the essential ally and advocate of all members of the legal profession; … the voice for all members of the profession and its primary purpose is to serve its members”, conflicts with creating solutions that impact the livelihood of lawyers. The writers of this report have not proved me wrong.

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Comments

  1. The primary problem regarding access to justice solutions has already been that of political economy. The major one in a means-tested system that has Canada is, of course, who cares? Access to legal aid is reserved only for the very poorest, while the private bar is reserved only for the very richest, leaving the vast majority out in the cold facing not only exclusion from the justice system based on finances, but also based on knowledge given the complexity of the legal system and the inherent difficulties of self-representation.

    CBA is and always will be in an unavoidable conflict of interest when giving its recommendations on access to justice. Why would lawyers advocate to take food off their own table? Human behaviour is what it is, we are not saints. It is better to listen to less vested groups when thinking about reform ideas. The most comprehensive and viable options I still think are outlined in the recent “Middle Income Access to Justice” book, which takes tackles the problem of middle class political apathy for access to justice initiatives head on. While the options they propose are often compromises for most access to justice advocates, there seems to be no other way forward to get to the ‘promised land’.

  2. To borrow from Glenn Reynolds, I’ll believe it’s a crisis when the people saying it’s a crisis start acting like it’s a crisis. The “reaching equal justice” report, whatever else it is, is not a response to a crisis.

  3. Mr. Kowalski’s approach to, and recommendations for solving the problem are wrong.

    The necessary solution is set out in my Slaw blog dated August 9th; “Government Intervention to Solve the ‘Access to Justice’ Problem is Inevitable.” Government intervention appears to be inevitable only because law societies don’t recognize the necessary solution. The unavailability of legal services seriously afflicts the majority of the population, and the resulting volume of unrepresented litigants is clogging the courts. Very soon it will “go viral” as the injured people and their broken families find each other on the internet and the social media, and then the news media will make it a number one political issue. Then governments will find the money or they won’t survive, particularly minority governments as in Ontario.

    All of the published recommended solutions seek to improve the existing system by which legal services are delivered. In fact, the necessary solution requires that the existing system be changed from the “handcraftsman’s” method to the “support services” method of delivering legal services. Handcraftsmen perform or make all parts of the service or product, instead of using specialized support services for the hard parts that don’t produce a profit. Car manufacturers use special-parts companies. Family doctors use highly specialized surgeons and other specialized fields of medical science.

    LAO LAW has been just such a support service for 34 years (since July 1979). It has saved Legal Aid Ontario millions, and it is a very popular service with lawyers who do legal aid cases. It provides several support services in addition to legal research and opinions. Its methods can be made to serve all fields of law. Such service should be made available at cost to all lawyers for all paying clients in Canada. CanLII should be providing such support services. Only government start-up money will be needed, and that can be re-paid as the CanLII service is developed.

    LAO LAW is more cost-efficient at what it does than is any law firm, because of its size and the high degree of specialization of LAO LAW’s staff, database technology, and legal materials created. No law firm in Canada can match it. As to law firms becoming investment properties, and other such “alternative business structures,” that brings the conflict of interest between the profit duty and the fiduciary duty–between serving yourself and serving your client. The only justification for the “law firm as an investment vehicle” is the fact that law societies don’t innovate so as to prevent majority populations from not being able to get legal services at reasonable cost.

    So far the evidence shows that pressures as strong as a competitively driven profit motive are necessary to bring about “legal services at reasonable cost.” But the future doesn’t have to be that way. Kowalski is very wrong to say, “fewer lawyers needed; so be it.” Those lawyers will be replaced by: (1) self-help programs, including unbundling of legal services ; (2) greater use of much less competent people such as law students, paralegals, and untrained volunteers; and, (3) pro & low bono, which, as all charity, is uncertain as to its volume, availability, and timing. And complicated, long cases, having many interlocutory proceedings and documents, require too much expensive time away from paying clients to be done pro or low bono. Therefore, no responsible agency within the justice system can say, “if access to justice calls for less [sic; fewer] lawyers … then so be it.” It doesn’t have to be that way. Gear-up CanLII as I recommend, and the problem will be solved, and law firms won’t have to be submitted to the investment market or to government intervention.

    – Ken Chasse, LSUC & LSBC, from Toronto.

  4. Ken, I’m very interested in your comments about LAO LAW. Is it a database of legal informtion; fully developed secondary sources; research service; all of these or something more? (As a BC lawyer I haven’t run across it before.) And how does it compare to the library of secondary sources that we publish at CLEBC?