CanLII as the Solution to the Unaffordable Legal Services Problem

 1. The solution for making legal services again available at reasonable cost is to enable CanLII[1] to be the necessary national support service. This requires CanLII be able to provide the support services that are provided by the LAO LAW division of Legal Aid Ontario (LAO) to Ontario lawyers in private practice who do legal aid cases. LAO LAW is a centralized legal research service.[2] As its first Director of Research, beginning in July 1979, I developed its technology of centralized legal research, which involves specialization as an on-going process in regard to: (1) its research lawyers; (2) the legal opinions, memoranda, and other materials made available to legal aid lawyers; and, (3) its centralized database of all office work-product, and database management procedures. As a result, LAO LAW now has a 34-year history of success, development, and popularity that has saved LAO millions of dollars.[3] Its support services can be provided to all traditional areas of the practice of law, and the development of its support services is an on-going process. But LAO LAW provides such services only to Ontario’s legal aid lawyers, and only in those areas of law in regard to which LAO issues legal aid certificates for legal services—as listed on LAO LAW’s website, along with the several different support services provided in each area of law, which are: “criminal law, family law, immigration and refugee law, Aboriginal legal issues, mental health law, correctional law, other resources, and online mentoring—the generosity of lawyers to fellow lawyers.” Those limitations prevent LAO LAW from being the necessary national support service for solving the problem.

2. CanLII is a national support service, available to all lawyers, judges, and residents of Canada. It makes available, decisions of courts and tribunals, and legislation and amendments. These limited materials, even though provided nationally and to everyone, cannot provide a solution to the problem.

3. The “cost of legal services” problem solved by LAO LAW for LAO, is a smaller version of, but exactly the same problem as, the majority of the population cannot obtain legal services at reasonable cost.

4. However, the maximization of cost-savings is obtained by having such a support service provide full legal opinions, rather than merely enabling lawyers to download memoranda and other materials from an online catalogue. Both are at present provided by LAO LAW. However, I concentrated on providing full legal opinions for each file-specific fact-pattern submitted by enquiring lawyers, so as to maximize the cost-saving to LAO. That way, the support service and the lawyer in private practice do what each is best at doing. Each lawyer spends less time on each file, and therefore bills LAO less, but is free to service more clients per unit time.[4] Similarly, car manufacturers and their “special parts companies” do what each is best at doing. In this way, profits are maximized. The larger the scale, the larger the profits. The larger the support service, the greater the cost-saving because size determines the degree of specialization possible. Also, not all costs of production vary upward with the scale of production. Many are fixed costs. Bigger is better.

5. As I argued in my Slaw article last August, the law societies continue to attempt to ignore, and as a result preserve the cause of the problem. Instead, they strive to treat its major symptom—unaffordable legal services. The cause is the present method of delivering legal services, and not the lack of the right improvements to that method.

6. The above solution would establish CanLII as a comprehensive support service in place of the present “handcraftsman’s method” of legal services delivery, whereby the same lawyer or group of lawyers perform all stages of the work necessary to delivering the legal service to the client. An example of the law societies’ preservation of the present handcraftsman’s method is set out in the Federation of Law Societies’ (the FLSC’s) published text, Inventory of Access to Legal Services Initiatives of the Law Societies of Canada (Sept. 2012).[5] It presents three types of solutions: (1) various kinds of self-help, including the “unbundling” of legal services—the client does more, as a result the lawyer does less; (2) help by way of a greater use of law students, paralegals, and volunteer workers; and, (3) greater use of pro bono and low bono legal services (free and low paid legal services provided by lawyers). The first two involve cutting costs by cutting competence (using people less competent than lawyers). Their results are the opposite of the support-services method: (1) competence is greatly reduced; (2) only a very limited cost-saving is produced; (3) response time is increased; and, (4) the probability of making an error that hurts the client is greatly increased. The third type of solution recommended is commendable charity, but like all gifts, is uncertain as to its volume, availability, and timing. No survey has been done as to the volume of such work needed to make even a dent in the problem, and the volume of legal labour that could definitely be assured of being provided. Also, lawyers are not going to do pro or low bono those long cases that spend a year or two in courts, involve may interlocutory proceedings and meetings, and the drafting of many documents for those proceedings and meetings. Those cases involve too much expensive time away from paying clients. But they are generated by all income levels of society.

7. Therefore, even though the cause of the problem has been the unwillingness of Canada’s law societies to innovate and instead preserve the existing system, because they are the sponsors of CanLII, the solution can be their solution.[6]

8. The law societies do not give sufficient importance to the interactions among: (1) the problem and its consequences—the thousands of people whose lives have been damaged for lack of affordable legal services provided by competent lawyers; (2) the power of the internet, the social media, and the news media together, to make those consequences into a public and political issue so quickly that there will not be time for the law societies to publish a persuasive response, and which issue will compel government intervention by way of programs on the way to socialized law; (3) the fact that self-regulation of the legal profession has been lost by the law societies in several jurisdictions of the common law world and the U.S;[7] and, (4) the fact that the consequences of the unavailability of legal services at reasonable cost will motivate the many non-lawyer legal service providers to offer legal services that should be provided by lawyers, to people desperate for a lawyer’s services that they cannot afford.[8] In the market place of cost and convenience, lawyers will lose. The legal profession will shrink and the law societies’ monopoly over the provision of legal services will shrink with it. People are willing to reduce somewhat their quality requirements in exchange for better cost and convenience. That is why the fast food industry flourishes.

9. Therefore, it would be a serious mistake if the law societies were to continue to act and write publically as though the cause of the problem of unaffordable legal services is not the present method of delivering those services.

10. I have been told that my solution to the problem has received a favourable response from CanLII’s Board of Directors.

11. This article is but an outline of the solution. Much more detail and analysis with supporting authorities needs to be published, which I shall do.


[1] CanLII is the Canadian Legal Information Institute. CanLII’s website states: “CanLII is a non-profit organization managed by the Federation of Law Societies of Canada (the FLSC). CanLII’s goal is to make Canadian law accessible for free on the Internet. This website provides access to court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions.”

[2] See LAO LAW’s website.

[3] In 2001, a survey of Legal Aid lawyers indicated, “a high level of satisfaction with the services provided”: Report on the Findings of the Legal Aid Ontario Research Facility Survey, November 2001, being a report prepared for the Evaluation Manager of Legal Aid Ontario, at pages 4 and 36. At that time, LAO LAW was called The Research Facility, as it was when it began in 1979, at which time LAO was the Ontario Legal Aid Plan.

[4] We would have provided lawyers with specific memoranda had they asked for them, but they all wanted legal opinions. A catalogue of specific-issue standard memoranda was developed, and kept-up-to date by having each researcher maintain the memoranda in his/her area of specialization. That greatly reduced our response time while maintaining high quality work. That was absolutely essential for maintaining the popularity of the service, which in turn was essential because there was no rule requiring lawyers to use it. After several years of development there were 400 standard memoranda in criminal law alone. Now there are close to 1,000, as well as hundreds of draft pleadings and other materials.

[5] Click on the highlighted word “inventory,” in the last line at this site, which states: “The Federation’s Standing Committee on Access to Legal Services has produced an inventory of access to legal services initiatives of Canada’ law societies.”

[6] The law societies’ umbrella organization, the Federation of Law Societies of Canada (the FLSC) is the actual creator and sponsor of CanLII.

[7] See for example: (1) Richard F. Devlin, Porter Heffernan, “The End(s) of Self-Regulation” (2008), 45:5 Alberta Law Review 169; (2) Noel Semple, “Access to Justice through Regulatory Reform” (a paper prepared for the National Family Law Program, July 16, 2012; electronic copy available online at: <http://ssrn.com/abstract=2101831>. Dr. Semple is a postdoctoral research fellow, Centre for the Legal Profession, University of Toronto Faculty of law. At p. 3 he states: “Although comprehensive and reliable data about the cost of Canadian legal services is not available, the information that is available makes it clear that prices are high enough to deter many potential clients. According to the Canadian Lawyer 2012 survey of hourly rates, the average for a Canadian lawyer with 10 years’ experience was $340 per hour. The average legal fee for a contested divorce was $15,570. Given that the median income for a single Canadian is less than $30,000 per year, the potential for these legal fees to deter Canadians is obvious.” [quoting from, Robert Todd, “The Going Rate” Canadian Lawyer (June, 2012) 32 at 34 and 37]; (3) Paul D. Paton, “Between a Rock and a Hard Place: The Future of Self-Regulation—Canada between the United States and English/Australian Experience,” 2008 Journal of the Professional Lawyer 87; (4) Noel Semple, “Core Values: Professionalism and Independence Theories in Lawyer Regulation,” Slaw blog for July 18, 2013.

[8] Therefore see the, Interim Report to Benchers of the Law Society of British Columbia of the Legal Services Providers Task Force (July 12, 2013). It deals with these issues: (1) should there be a regulator of other legal services providers; and, (2) should the law society be that regulator? However, this being but an interim report, the Task Force’s final answers are not provided.

Comments

  1. Thank you for posting your thoughtful article. Lawyers and their clients would be well served by implementing such a system.

  2. CanLII was grateful to receive an advance copy of Mr. Chasse’s paper this summer.

    While some favourable comments were made around the table, the Board has not adopted any official position on the proposals put forward by Mr. Chasse.

    Like all other recommendations it receives from across the public and professional spectrum, CanLII will consider it against existing and planned priorities as well as against what is achievable within the scope of resources that may be available to it over the coming years.

    Colin Lachance
    CanLII