The Canadian legal profession is currently engaged in a much-needed debate about the future of legal services in general and whether to allow the use of so-called alternative business structures (ABSs) more particularly. Thankfully, the issue of access to justice is figuring prominently in the general debate, as evidenced by the recently released CBA Legal Futures report and the ongoing work of the Action Committee on Access to Justice. Beyond that, the potential for ABSs to improve access to justice is being put forward as a key reason for allowing them, as can be seen in Slaw columns of Malcolm Mercer and in the work of the Law Society of Upper Canada’s Working Group on ABSs that he co-chairs. However, in relation to the ABS debate, it is necessary to ask: access to justice for whom? The answer is: mostly, the middle class – which, in my view, is good, but not quite good enough.
Briefly put, ABSs involve either non-lawyer ownership of entities providing legal services, or provision of non-legal services along with legal services, or both. ABSs are currently allowed in some comparable common law jurisdictions, namely, Australia and the UK, but are not (yet) allowed in the United States. The potential for ABSs to improve access to justice lies in the likelihood that the new forms of financing and management expertise that they can attract will spur efficiencies and innovations in the design and delivery of legal services (and ‘products’). ABS entities such as Slater & Gordon (in Australia) and The Cooperative Legal Services and Quality Solicitors (in the UK) are cited as the exemplars of the newly affordable, and otherwise better accessible (non-intimidating, technologically-adapted), legal services that are possible in Canada. Indeed, some new entrants into the Canadian legal services market, such as Axess Law, seem already to be learning from and applying the business techniques of ABSs.
An important point needs to be noted though about the potentially new and improved legal services that ABSs can be expected to offer – they don’t and won’t come for free. To the extent that ABSs can improve access to justice, they will only do so for those who can afford to pay for legal services. Hopefully, in an ABS-world, many people will find themselves newly able to take advantage of legal services, but still, payment will be required – and it is in this sense that ABS-led access to justice is about, mostly, the middle class. For people living on low income, ABSs may have little to offer, both because lack of money will still be a barrier and because there is more to taking advantage of legal services than just money (a point recognized by the CBA’s Envisioning Equal Justice project and report).
But does it necessarily have to be that way? Perhaps not. Perhaps it is possible to identify and apply regulatory tools or programs to ABSs in such a way as to harness any accessibility-improving changes they produce in the user-pays private market for the benefit of those who would still lack the means to pay. Unfortunately, however, this possibility is not presently part of the ABS debate. The LSUC ABS Working Group itself has recognized [at para. 118 of its February report] that “it would be wrong to suggest that ABSs are a panacea” for access to justice, but does not yet seem inclined to go further. More promisingly, the CBA has suggested [at p. 36 of its report] that governments might consider financially partnering with it, and private industry, in a legal services innovation incubator fund and that governments could then put their share of resulting innovations to use in publicly provided legal services programs. But there is much more territory that could be explored, for instance: redistributive licensing fees for ABS (and other) legal services entities; vouchers for ABS legal services ‘products’; and, compulsory licensing of ABS technological innovations. Numerous other regulatory tools and programs might be mentioned – some already available to provincial self-regulators, others probably requiring legislative collaboration or empowerment – and all would come with advantages and disadvantages that would need to be identified and assessed. Exploring this added territory should, in my view, be part of the debate on allowing ABSs. To conclude, I offer three reasons for that view.
First, as a matter of normative priority, where regulatory change is sought to be justified by potential for improvements in access to justice, it is arguable that it is the needs of the more disadvantaged and impoverished (people living on low income) that ought to be given priority consideration. More moderately, it might at least be argued that their needs ought to be given no less consideration. Second, and now as a matter of practical policy-making reality, at a time when governments seem unwilling to devote more attention or expenditure to public provision of legal services for people living on low income, exploring ways to harness private sector innovations may be the most realistic avenue for improving access to justice for that segment of the population. Relatedly, the reality may also be that it will be too late to try to harness private sector innovations after the ABS horse has been allowed to leave the regulatory barn. Third, and bringing together normative and pragmatic angles, not only has the Canadian legal profession in general, and many of the provincial self-regulatory organizations more particularly, opened up a policy-making space for considering how to reformulate the future of legal services to improve access to justice, but also, the provincial self-regulators all have an implicit and, sometimes, as in the case of Ontario, an explicit duty to facilitate access to justice in their regulatory activities. In my view, that duty ought to be understood to at least require that the debate on ABSs and access to justice include consideration of possible means for ensuring that the new and improved services ABSs are expected to develop will benefit not just the middle class, but people living on low income as well.