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(Excerpt: pp. 1-3)
There are five propositions that Canada’s law societies must accept if their statements as to what they refer to as their “concern about the access to justice problem” are to have credibility:
1. The precise statement of the nature and extent of the problem of unaffordable legal services is: “the majority of the population cannot obtain legal services at reasonable cost.”
2. The duty to make affordable legal services available to the population arises from the law that requires the law societies to regulate the legal profession and the monopoly it has over the provision of legal services. For example, in the province of Ontario, that duty of the Law Society of Upper Canada is made express and precise by the statutory duties created by the Law Society Act, s. 4.2 of which states:
4.2 In carrying out its functions, duties and powers under this Act, the Society shall have
regard to the following principles:
(1). The Society has a duty to maintain and advance the cause of justice and the rule of law.
(2). The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
(3). The Society has a duty to protect the public interest.
(4). The Society has a duty to act in a timely, open and efficient manner.
(5). Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.
2006, c. 21, Sched. C, s.7.
3. Therefore, if the problem of unaffordable legal services exists, it is the law societies’ fault that it exists. If the law societies had been sufficiently responsive to the population’s need for legal services, the problem would not exist.
4. Therefore, it is the exclusive duty of the law societies to solve the problem of unaffordable legal services.
5. If the law societies cannot make legal services available to the population, they have no purpose. Therefore a different management structure has to be put in place that can regulate the legal profession so as to make affordable legal services available.
Note that s. 4.2 of Ontario’s Law Society Act provides no exceptions to the Law Society’s duties in regard to: (1) the rule of law; (2) access to justice; and, (3) acting in a timely, open and efficient manner. It cannot be said, as the Law Society of Upper Canada’s history of failing to act would imply, that the unaffordable legal services problem is an exception to such duties. And dare Canada’s other law societies reject such duties because their law society legislation is less explicit as to their duties?
But as though to deny such duties, Canada’s law societies have allowed the problem to develop over decades without doing anything. That is because they do not accept the principle that the duty to solve the problem arises from their duty in law to regulate the legal profession. For example, there is a webpage within the Law Society of Upper Canada’s website entitled, “Your Legal Bill – Too High?” It begins: “The Law Society does not set fees for legal services and cannot reduce a lawyer’s or paralegal’s bill that you think is too high.” And it concludes, “If you have a complaint about your lawyer or paralegal that does not involve the amount of the bill, see the Law Society’s page on Complaining about a lawyer or paralegal.” Nowhere does either webpage say, “however, these are the proactive steps that we are taking to make legal services affordable,” followed by a list of such “steps” in proof of being sufficiently proactive. There are no such “proactive steps.” But if it is argued that in fact they do exist, then why for decades has the problem continued to grow worse?
If it is not the law societies’ duty to solve the problem, it is nobody’s duty. It cannot be government’s duty to deal with unaffordable legal services because such government intervention into lawyers’ fees would violate the principle of the independence of the legal profession from government intervention. If it is nobody’s duty, then that majority of the population that cannot afford legal services must accept as a perpetual reality, that they must deal with their legal problems without the help of lawyers. That is the conclusion one must draw from the Federation of Law Societies of Canada’s 2012 published text, Inventory of Access to Legal Services Initiatives of the Law Societies of Canada. Those “initiatives,” are existing, operative programs. They are of three types: (1) self-help programs; (2) “cutting costs by cutting competence” programs, by way of greater use of, students, paralegals, and “unbundled” legal services, wherein the client does more with the intended result that the cost will be lower because the lawyer does less; and, (3) pro bono charity, which, albeit commendable, is too small to have any significant impact upon the volume of legal services needed. Nor will it service those long and difficult cases that spend a year or two in the courts, requiring multiple proceedings, meetings, and the drafting of many documents; they being cases generated by all income levels of society. Accordingly, the first paragraph of this “Inventory of Initiatives” text defines the problem as being merely, “gaps in access to legal services.” The fact that the majority of the population cannot obtain legal services at reasonable cost is hardly a “gap” in the availability of legal services. It appears that the definition of the problem has been crafted to suit these operative programs, rather than an accurate definition of the problem used to determine the programs needed. If the answer to be accepted is that this “Initiatives” text was not intended to deal with the unaffordable legal services problem, then what published law society text describing operative programs does? There is none.
No democracy need accept the proposition that it must do without affordable legal services because the unaffordability of legal services is inevitable, and like the weather and uncontrollable economic forces, it cannot be changed. Nor accept that we are no longer a constitutional democracy. That majority needs a lawyer in order to make effective use of the Constitution, particularly so the Canadian Charter of Rights and Freedoms. For that reason the legal profession has traditionally been referred to as, “the gatekeepers of the constitution.” Now unaffordable legal services have cast us as the obstructers of the constitution. This situation violates the duties imposed upon the Law Society of Upper Canada by s.4.2 of Ontario’s Law Society Act, to maintain and advance the cause of justice and the rule of law, and to act so as to facilitate access to justice for the people of Ontario.
Meanwhile, these four types of damage caused by the problem are getting worse: (1) to the population in that there are many thousands of people whose lives have been damaged for lack of legal services; (2) to the courts in that they are being clogged, as judges have warned, by high percentages of self-represented litigants, because their cases move much more slowly than those that have lawyers; (3) to the legal profession in that it is shrinking and is predicted to have a very negative future of contracting and of law firms failing; and, (4) to legal aid organizations because it is politically very unwise for governments to fund them better with taxpayers’ money, to enable them to provide free legal services to more poor people, while the majority of the taxpayers cannot obtain legal services for themselves at reasonable cost. The problem must be causing more damage in one day than have all of the incompetent and unethically practising lawyers in the whole history of Canada. But the law societies have failed to be proactive about unaffordable legal services, but they are in regard to the much less serious problem of incompetent and unethical lawyers. Conclusion: the law societies do not accept the proposition that the law imposes upon them a duty to do all that it is possible for them to do, to bring about affordable legal services.