The Law Society of Upper Canada’s (LSUC’s) “alternative business structures” proposal (the ABS proposal in its Discussion Paper)[i] will bring about a critically important and worrying change to the practice of law in Canada. Therefore all of Canada’s lawyers should consider the following three categories of factors when questioning candidates for all Bencher elections, particularly the April 30, 2015, Bencher election in Ontario:
A. Such proposals are particularly vulnerable to a questionable initiation process and subsequent use because:
- They are not subject to the established methods of prevention and discipline, i.e., by: (a) legislation; (b) the regulator (the law society is not going to prosecute and punish itself or Convocation); (c) by the insurer, e.g., LAWPRO’s terms of insurance, compensation, and recovery; (d) by law suit by a client, private person, or other lawyer or official; nor by (e) discrete internal settlement (a “payoff” by a law firm to get an injured or scandalized client to keep its mouth shut).
- They can be of substantial benefit only to those law firms whose clients can still afford legal advice services. Benchers of such law firms can use their positions to promote personal interests as “rainmakers” for their firms.”[ii]
- The problem of “unaffordable legal services” (“the problem”) should be solved first, before favouring by way of ABS’s, those people who can still afford legal services. The very long existence of the problem, proves that the public has insufficient impact upon the formation of law society policy and practice. If the law societies had been sufficiently responsive to public need, the problem would not exist.[iii]
- ABS proposals might be given the appearance of being necessary because LSUC has nothing else to point to as a response to “the problem,” particularly so in response to the need to forestall government intervention.[iv]
- Of concern therefore, is the fact that the ABS Discussion Paper released on September 24th, as a LSUC publication, is a promotional text as to its ABS proposals, rather than being a neutral text, providing a “balanced presentation” of opposing views and factors.[v]
- The appearance of such proposal is that of a solution to all parts of the problem, when in fact it can have no effect upon the cost of legal advice services.
B. The “one-way entrenched and potentially damaging nature” of such proposals, in that:
- Allowing them is a “one-way process”—because of the numerous investment and other business relationships that ABS’s permit and promote, they will be very difficult to untangle and remove if they prove to be a mistake or no longer desired.
- As long as they are beneficial to law firms sufficiently represented by Benchers, there will be no effective movement to change them.
- They prevent other ways of coping with “the problem” because they will be seen as “occupying the field” with a “sufficient degree of reform,” and be incompatible with the many irreversible investment and other business relationships they will create.[vi]
- As the ABS’s propose,[vii] clients who can still afford legal services of all types, will expect to be able to receive related non-legal services with their legal services. (But those who cannot afford legal advice services will not be able to expect either.)
- They have no capacity for making legal advice services again affordable, which is the major part of “the problem.” It is not the need to automate routine legal services as is proposed.[viii]
- LSUC’s Bencher election on April 30, 2015, will be a lost opportunity to hold this proposal “to account” and prevent its entrenchment, if the candidates are not required to respond adequately to its dangers and weaknesses and thus show an adequately provocative awareness that the membership “is watching and vigilant.”[ix]
- Note: LSUC has requested comments to its ABS Discussion Paper by December 31st. LSUC’s Bencher election is April 30th. If the ABS proposals are voted on by the Benchers in Convocation before the election, there will not be an opportunity to question them on their positions on those proposals.
For people who cannot afford legal advice services, the substitute programs the law societies are now providing or supporting might, by reason of “long usage,” become permanent. None is said to be only temporary. They are inadequate because they don’t attack the “unaffordable legal services problem” head-on so as to again make all legal services affordable. The purpose of a law society is not to support substitutes in place of legal services provided by lawyers. Without more effective alternatives, such programs will become permanent. ABS’s will serve only those clients who can still afford legal advice services. The rest will have to accept the following programs as being all that can be provided. Such substitute programs are of these three categories:[x]
– court procedure simplification projects[xi];
– call-in services that provide some suggestions and explanations (but the caller is warned that no fiduciary relationship between lawyer and client is thereby established;
– websites that supply suggestions, descriptions, and explanations;
2. Cutting costs by cutting competence, i.e., using people of lesser training and competence than a lawyer
– student and paralegal programs;
– unbundling, i.e., the client does more so that the lawyer does less and costs less;
3. Pro bono programs (commendable charity)
– charity in exchange for the taxpayers’ money that funds the justice system, including the free legal services provided by legal aid organizations, but the majority of taxpayers cannot afford lawyer services for themselves;
– the amount of pro bono services that could be provided is very small in comparison to the need of the majority that cannot afford legal services;
– pro bono cannot service long and difficult cases involving many proceedings, meetings, and the drafting of many documents, i.e., they require too much unpaid for time and too much time away from servicing paying clients. But such cases are generated by all income levels of society.
These are operative programs. They are described in the Federation of Law Societies of Canada’s 2012 published text, Inventory of Access to Legal Services Initiatives of the Law Societies of Canada.[xii] Its first paragraph 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. And the Discussion Paper also cites such “gaps” (at p. 6):
The Law Society is considering the ABS model in light of several factors, including apparent gaps in the provision of legal services, the increasing globalization of the legal profession, and advances in technology and developments abroad, that significantly affect how legal services can be delivered.
But then using a sharply contrasting strategy, the Discussion Paper sets a scene of urgency and tragic drama by citing the high percentages of people needing legal advice services, some of whom are going to court without lawyers, even though its ABS proposal can’t do anything to help them because legal advice cannot be automated. Court cases need legal advice services from lawyers, because there are no “routine legal services judges” whose work can be automated. The cited percentages are (at p. 13):
(1) “In Canada and elsewhere, in family law, most litigants do not use lawyers – recent studies show 70% are unrepresented”;
(2) a 2009 federal government text states that, “legal advice is sought for less than 15% of justiciable problems in Canada”;
(3) the same study states that, “42.2% of respondents who experienced a personal injury problem consulted an unregulated source of assistance. [i.e., a non-lawyer] Employment (35.8%) and housing (33.7%) were the next highest areas in which respondents resorted to non-legal sources of assistance.”
(4) “In 2009, the Ontario Civil Legal Needs Project found that one-third of low- and middle-income Ontarians did not seek legal assistance for what they regarded as legal problems”; and,
(5) “A recent study of 259 self-represented litigants in family and civil law matters in Ontario, British Columbia and Alberta reported that the most consistently cited reason for self-representation was the inability to afford to retain, or continue to retain, a lawyer.” [endnotes omitted]
Such ABS proposals can do nothing to make such services more affordable. See my Slaw article of October 10, 2014, Legal Advice Services Cannot Be Automated by Alternative Business Structures. The automating of services advocated by ABS proposals is for routine legal services, not legal advice services.
Therefore the disciplining and outcomes of all upcoming Bencher elections is very important to all lawyers in Canada, and to the provision of legal services.
[i] See this statement on LSUC’s website: “The Law Society released Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper on September 24, 2014, to seek input from lawyers, paralegals, stakeholders and the public about Alternative Business Structures (ABS).” Comments and requests to attend meetings may be sent to, email@example.com, by December 31, 2014. These ABS proposals have three parts: (1) law firms can be invested in (owned—up to 49% or 100%) by non-lawyer people and entities; (2) legal services be enabled to be provided with related non-legal services; and, (3) routine legal services be automated by software applications. See the discussion in my recent Slaw article, “The More that Law Society Committees Change, the More Things Stay the Same.” [date of publication & hyperlink to be added]
[ii] Would such be a breach of trust? Section 122 of the Criminal Code establishes the offence of, “breach of trust by public officer.” Benchers would come within the relevant definition of “official” in s. 118. See the broad definition given the offence by the Supreme Court of Canada in, R. v. Boulanger,  S.C.J. No. 32,  2 S.C.R. 49, 210 C.C.C. (3d) 1.
[iii] That appears to be contrary to s. 4.2 of the Ontario Law Society Act, because it requires LSUC, in carrying out its functions, duties and powers under the Act, to have regard to a duty to: (1) maintain and advance the cause of justice and the rule of law; (2) act so as to facilitate access to justice for the people of Ontario; (3) protect the public interest; and, (4) act in a timely, open and efficient manner.
[iv] As to such need, the, Report of the Treasurer’s Advisory Group on Access to Justice Working Group at pages 4-5 (being pages 235-236 of LSUC’s Report to Convocation of January 23, 2014), states in paragraph 6: “This report from the Treasurer’s Advisory Group on Access to Justice (TAG) Working Group proposes a framework for change which would see the Law Society lead and innovate on these important issues, rather than have change imposed upon it.” And paragraph 9 states: “Despite significant individual and organizational efforts, including those of the Law Societies, the ‘crisis’ only seems to be growing, highlighted perhaps most starkly by the numbers of self-represented litigants appearing in courts across the country. As a result, the attention being focussed on the need to address the obvious and growing imperative to provide more effective and meaningful access to justice in the last few years has been unprecedented.”
[v] Supra note 1.
[vi] For an example of an alternate reform, see my solution for “the unaffordable legal services problem” by way of enabling CanLII to provide the legal opinion and other support services long provided by the LAO LAW division of Legal Aid Ontario: CanLII as the Solution to the Unaffordable Legal Services Problem, posted on Slaw, Oct. 24, 2013. A longer, more in-depth version is available for free .pdf download from the SSRN: “Access to Justice – Canada’s Unaffordable Legal Services – CanLII as the Necessary Support Service.”
[vii] Supra note 1.
[viii] Supra note 1.
[x] The Federation of Law Societies of Canada’s (FLSC’s) “Inventory of Initiatives” text, published in 2012, is an example of the promotion and employment of such programs. The FLSC text is entitled, Inventory of Access to Legal Services Initiatives of the Law Societies of Canada. A .pdf copy can be accessed online: <http://www.flsc.ca/en/access-to-legal-services/>. 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’[s] law societies.” Its solution to the problem is stated to be (p. 1, para. 3): “This inventory outlines the activities that law societies across the country have underway or are contemplating to improve access to legal services for the Canadian public. The inventory is organized into the following categories: (1) Self-help services; (2) Public legal education and information; (3) Advice from non-lawyers; (4) Summary advice, brief services and referrals; (5) Assessing legal needs-Economic initiatives; (6) Unbundled legal services/limited scope retainers; (7) Prepaid legal insurance plans; (8) Legal Aid; (9) Reduced fees (Pro Bono and Low Bono); (10) Alternative billing models; (11) Supply side issues (small and sole practitioners, rural and remote areas, cultural and linguistic issues).”
[xi] See these reports, dated May 2012, of the Action Committee on Access to Justice in Civil and Family Matters: Report of the Access to Legal Services Working Group; and, Report of the Court Processes Simplification Working Group. Available online: <http://www.cfcj-fcjc.org/collaborations>. The Action Committee is part of the Canadian Forum on Civil Justice at York University in Toronto, where it is affiliated with the Osgoode Hall Law School and the York Centre for Public Policy and Law. See the Canadian Forum on Civil Justice website; online at: <www.cfcj-fcjc.org/?q=about>. But treating the problem of self-represented litigants and clogged courts by simplifying court processes and procedures is to lower the quality of justice available. To allow such programs to become permanent is to entrench “two-tier justice.” Are our law societies saying, “that’s the way it’s got to be whether it’s constitutional or not”?
[xii] Supra note 10.