Deferred Discomfort and the Problem of Justice Reform
Canadians do not have access to justice. Access to justice is of foundational importance to Canadian society; access to justice is essential to the social and economic wellbeing of civil society. The civil justice system is too complex, too slow and too expensive. It is too often incapable of producing just outcomes that are proportional to the problems brought to it or reflective of the needs of the people it is meant to serve. The system is in crisis. The reforms to date are inadequate; change of a fundamental nature is required. An overhaul of the current system is required.
These propositions, all drawn from recently published reports on access to justice, have been advanced so often and restated by so many academics, researchers and leaders of the bench and bar that they have become truisms of justice in the twenty-first century. The breadth of their scope and significance of their implications has, however, has overshadowed two collateral observations: that none of the federal, provincial or territorial governments have thus far committed the magnitude of resources necessary to adequately support the effort needed to achieve fundamental change; and, that insufficient impetus has thus far emerged from the bench and bar to compel such a commitment.
The present situation is, with the greatest respect, staggering. We have at hand a crisis on a national scale, affecting a system that costs governments billions of dollars a year to maintain, and yet we as a society are unwilling to allocate the few millions of dollars that are necessary to tackle the problem as aggressively as it requires. To be sure, there are individuals and groups engaged in justice reform across the country, however the groups are poorly funded, poorly supported and reluctant to engage in a foundation-up reimagining of the justice system, and the individuals are on the verge of burnout as they struggle to carry projects off the sides of their desks. Why are justice reform initiatives not better resourced?
There are, I suggest, three main causes of our apparent reluctance to meaningfully address access to justice and the present crisis within the system.
Firstly, lawyers are largely invulnerable to the sort of traditional capitalist forces that impel change. Although the effects of the 2008 economic downturn were felt sharply by the corporate lawyers of Bay and Howe Streets, most civil litigators barely noticed the recession. Those of us who charge by the hour continued to charge by the hour and experienced none of the competitive market conditions that would have encouraged a reduction in our rates or a reevaluation of our billing models; indeed the legal fees surveys published by Canadian Lawyer show that our rates have continued to increase, often at a pace beyond that of inflation. With no shortage of clients willing to pay our rates, what possible motivation could there be apart from altruism to adopt the alternative service structures known to promote access to justice, such as flat-rate and limited-scope retainers, or work on a barter basis? Behaviour, after all, follows incentives.
Of course it deserves to be mentioned that lawyers are not actually engaged in a traditional capitalist market: we enjoy a statutory monopoly over most legal services and our potential competition is artificially suppressed. This arrangement is, in essence, a social compact in which the quid pro quo for exclusive rights is the provision of reasonably sufficient services such that society’s reasonable legal needs are reasonably met. I suspect that the consequence of failing to hold up our end of the bargain will be deregulation and the introduction of much more affordable competitors, whether we greet such measures with grace and magnanimity or not.
Secondly, although most judges and lawyers would agree that the efficiencies of the civil justice system have deteriorated over the past ten years as the number of cases and litigants without counsel have skyrocketed while budgets and the rate of new judicial appointments have stagnated or declined, few would likely say that the system has become intolerable. Our judges are at or reaching their maximum capacity; the continued decline of the system is not going to have much more of an impact on their workload despite its impact on their job satisfaction. Most lawyers are continuing to make a very good living and are turning away new clients. Apart from the aggravation of increasing delays in the time required to take a matter to hearing or trial, we are little inconvenienced by the deterioration of the system.
Although the decline of the justice system is causing some degree of discomfort for the two critical groups with the greatest power to promote change, it has not yet become so uncomfortable that the Bastille is in danger of being stormed. (On top of this, the senior lawyers who are the most influential among the bar are doing quite well under the current system, are least inconvenienced by the status quo and are, as a result, are singularly without motivation to pursue change.) As so often happens, the people who bear the brunt of the problem – court staff, legal aid agencies, front-line advocates and justice-serving agencies, never mind the actual users of the system – are the least empowered to effect change.
However, it seems to me that change is about to be thrust upon us whether we rise to meet the challenge or choose to sit on our hands. The flood of litigants without counsel shows no sign of abatement and the research tells us that such litigants are more likely to adopt unreasonable positions and as a consequence are less likely to resolve a dispute other than by trial. These litigants have difficulty with the rules of court, the rules of evidence, the legislation governing their dispute and court processes; they need longer trials and are more likely to require multiple adjournments to properly present their case. If the system is choked now, it is going to become absolutely impassable if current trends persist unaltered, much to our own inconvenience and that of our clients.
Thirdly and perhaps most importantly, although the future state of the justice system is eminently foreseeable, the precise date when the crisis will reach a point of climax and become intolerable remains indeterminate. It seems to me a function of human nature that whenever a grave problem impends and we have the choice of either
- undertaking painful, costly measures in the present in the hope of avoiding or mitigating disaster in the future, or
- deferring the discomfort of acting until the point of climax is upon us, and the pain and cost required to mitigate is ever so much greater,
we choose inaction over action. We are most certainly taking the second route with respect to the justice system, just as we are with climate change; we are trading our present, tolerable discomfort against the exponentially worse discomfort we are almost certainly going to suffer at an unknown date in the future.
Regardless of why so few resources have been allocated to the twin tasks of reform and reinvention, or of why the status quo carries so much inertia among those with the power to promote change, we are headed toward a watershed moment. We can continue to rearrange the deck chairs and proceed as if tinkering around the edges will resolve the crisis, or we can take the ship into drydock and take it back to the keel. The fact of the matter is that there is no shortage of good ideas and we likely have the answers necessary to address the access to justice crisis, or at least enough of them to make the critical difference. What we need are the resources and the will required to pilot, evaluate and implement them.
To get back to drydock, two things are necessary: the unflinching commitment toward fundamental change of the bench and bar, expressed through the chief judges and justices and the executives of the law societies and bar associations, and the commitment of government, expressed through a far more appropriate allocation of resources and funding. Without both, I fear that the momentum toward change encouraged by the work of the Action Committee on Access to Civil and Family Justice and the CBA’s Access to Justice Committee will be lost and the status quo will prevail until change is rudely forced upon us.
John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.
J.P. – I’m going to pick on you again – not so much as to give you a bad time, but to maybe expand the conversation.
The A2J issue is felt most accuately in Family and Criminal Law – but most appraisals.
While there are some broad suggestions of lawyers needing to check their privilege (to borrow a phrase) or reconsider the billable hour as it relates to their so-called “statutory monopoly” – what is the statistical reality?
Do family and criminal lawyers make more money now – relative to other professions like nurses and teachers, etc., compared to 20 years ago?
This, obviously, is a question of before-tax net income – which doesn’t suggest “fees” have increased – but most lawyers contend with much more expensive insurance, law society dues, staffing costs, I.T. costs., etc..
If, in fact, family and criminal lawyers are making bundles of money (I would suggest, in fact, they aren’t) then it may be reasonable to question the statotory monopoly – but if they aren’t – then references to the “responsibility” of lawyers is, perhaps, misplaced.
Candidly – I’m not sure of the answer – we have had some polls in our profession in very non-scientific manner – but I haven’t come across anything that appears to approach empirical study or data – if you have something at your disposal, J.P., I would be very interested. If not, well, it might be fodder for further discussion :)
Rob, please pick away. I appreciate your input.
I’m not aware of any work that’s been done specifically looking at lawyers’ billing practices, net incomes and so forth. Canadian Lawyer has been publishing some fairly comprehensive rate surveys over the past several years which are worth a look, and I seem to recall some surveys about associate salaries, but I haven’t seen anything that asks about the take-home pay of sole practitioners and partners. This issue would be work a look, and I’ve been talking with Lonny Balbi about the possibility of doing some sort of evaluation of the cost of doing business for family law lawyers (overhead, professional fees, assistant salaries, rent and so forth) to establish a solid business case for unbundled services and flat-rate work.
What I wrote about the relationship between a relative absence of competition and lawyers’ rates was based on my experience, which is limited to Victoria, the lower mainland of British Columbia and what I am learning about the family law bars of Calgary and Alberta. In Vancouver, which is where my practice was located, most family law lawyers were turning away paying clients simply because there were too busy, and in Calgary and Edmonton I am told that there is actually a shortage of family law counsel. You’re right that this observation, even if accurate, isn’t universally applicable to all lawyers. It may not apply to those with rural practices. Certainly making a living as a criminal law lawyer taking legal aid work is very difficult, and conveyancers have been driven to almost rock-bottom rates.
As for the loss of our monopoly, we are seeing significant encroachment on traditional lawyer work in Alberta, and the law society here seems to regard the expansion of non-lawyer legal services as a satisfactory means of addressing access to justice. (In actuality, it is. If people can’t afford lawyers, they should be able to get legal assistance somewhere.) The Law Society of British Columbia, on the other hand, takes a much harder line on the sort of work that constitutes legal services. I think that deregulation is on the horizon.
In any event, the main thrust of my article was not intended to dwell on lawyers’ fees and practices but on the fact, and I think it is a fact, that we have not yet committed sufficient resources to seriously address the sort of reform that needs to occur. I think that lawyers’ relative comfort is one of the factors underpinning this failure, but it’s not the only factor. I also think that we need to do a great deal more than we are to encourage appropriate government resourcing of justice reform initiatives.
In the record to date of a case now before the BC Supreme Court we (an associate and I – neither of us lawyers) have some very compelling evidence of just how hard a line the Law Society of British Columbia takes regarding the alleged exclusive right of its members to provide legal services. My associate is named as the petitioner and the LSBC as the respondent. I have been acting throughout as the petitioner’s lay advocate, which I maintain is permitted by the statute through the section 1 definition of the “practice of law” (as I have sought and am receiving no “fee, gain or reward”).
In response to this petition the LSBC has made a series of reckless moves, including seeking a finding of “special costs” against both of us and an order “sealing” the record of this matter. They certainly won’t be awarded special costs. In fact that tactic will be the grounds we’ll cite for an award of special costs against the LSBC.
Perhaps the Law Society of Alberta would have chosen a less reckless approach to dealing with this challenge.
I practiced Family Law in a rural law firm. I also had other practice areas that subsidized my work in Family Law. This was because most of my clients could not afford to pay my usual hourly fee. They paid what they could and I accepted what they could provide. The law firm I was associated with now has seen costs of operation rise substantially. It is very difficult to “make a living” from this area of practice. City practices often have richer clients. However, today the “middle class” often choose to proceed without counsel because of the cost. I am associated with a court that provides conciliation services at no cost to the parties. There is judicial settlement conferencing. There is a very informative Family Law Website. Assistance is provided to help clients properly complete court required forms but… we do not have enough people to assist and these services are only available in metropolitan areas. There are those who suggest the problem is not money but I ask what kind of system can be provided without “people to assist” lawyers or others. I would very much like to read about ideas for the radical reform suggested in this article. Tell me what a new system build from the ground up will look like. Unfortunately, as is so often the case, it calls for reform without any concrete suggestions about what those reforms should be particularly if those who are helpers – lawyers, paralegal persons, etc. cannot make a living providing the services contemplated by the reforms. What research is there to suggest paralegal persons can make a living wage in Family or Criminal Law even if impediments to their practice were removed. Government is unlikely to expand legal aid. If there is a belief that a living can be made providing that assistance if only the “system” was more competitive my response would be – only in very limited circumstances. The market is not always able, if it ever was, to provide essential services to those in need at an affordable cost.
With respect to paralegals and other paraprofessionals, the paralegals I am familiar with are all attached to law firms and practice with or under the direction of a lawyer. (In British Columbia, for example, the Law Society has allowed paralegals to provide a specific range of legal services, including advice and representation in court, under the supervision of a lawyer.) I’m also aware of independent service providers who are making a living for themselves doing divorces and providing resolution services; Fairway Divorce is a good example of the latter and Untietheknot.ca is a good example of the former. In Alberta, non-lawyer “court agents” defend people in traffic court matters and summary conviction offences and seem to be successful at it.
This being said, I am not suggesting that the use of paralegals and independent legal service providers is necessarily good for those involved in family law disputes. However, it seems to me that permitting non-lawyers to provide less expensive legal services is an obvious go-to solution for governments; if lawyers are unaffordable, why not open the doors to those who are?
As to a rebuilt justice system, I can suggest a few things that may or may not be reasonable or even mutually compatible…
1. Establish a triage system in which a judge, master or senior member of the bar conferences with someone seeking to initiate a legal proceeding, provides advice about the range of likely outcomes and an assessment of the dispute resolution process most likely to assist the party. Cases of demonstrable urgency would be shunted to court, though perhaps only to address the emergent problem, others would be directed to legal education services, assisted negotiation, mediation, collaborative processes and the like, with trial remaining in the event the matter simply cannot be settled. Embed in this system counselling services, parenting support programs, parenting after separation courses, social workers and accountants. Ensure that matters that are streamed to court are case managed and heard by a single judge, working hand in glove with the attached social services, and undergo mandatory mediation before trial.
2. Reduce the complexity of the rules of court, the Divorce Act and the relevant provincial legislation. Provide rules of court specific to family law matters that allow a level of process that is commensurate to the complexity and importance of the problem. Streamline and simplify the applicable legislation, and rewrite them in plain language so that they are comprehensible to someone who has finished grade ten. Reduce the number of circumstances allowing for judicial discretion to provide greater certainty of outcome and minimize the opportunity for conflict based on uncertainty. Codify, simplify and reform the rules of evidence to reduce or adapt counterintuitive principles, like the rule in Browne v Dunn, and principles that are hopelessly antiquated, such as the best evidence rule.
3. Require that all experts be jointly retained and provided with agreed statements of facts and agreed questions to address. Require all experts to acknowledge that their fealty is to the court and that they are not the expert of either party. Extend a limited immunity to parenting assessors to partially shield them from complaints to their governing bodies. Establish a uniform framework for parenting assessments that is both empirical and founded on current research.
4. Enforce rigid case management as to disclosure, examinations for discovery, experts, chambers applications, other pre-trial matters and trials. Adopt an inquisitorial court process allowing the presiding judge to probe into the matters at issue, determine and direct the conduct of proceedings, including the witnesses who will be required and the manner in which their evidence will be given, and to ask questions of each witness before the parties are permitted their examinations; allow the court to set limits on the length of parties’ examinations and their scope. Appoint amici curiae to facilitate the conduct of hearings and provide evaluative legal advice to the parties.
5. Reframe family law disputes as adversarial contests between spouses and parents to problem-solving, cooperate exercises aimed at restructuring separated families so as to adapt the finances, parenting responsibilities and other resources each family enjoyed while intact into its new separated form. Presume that family law disputes will not be litigated. Incorporate the services of counsellors, child experts and financial experts into state-funded non-adversarial processes as required by the circumstances of each family.
6. Reform the rules about conflicts of interest to allow mediators and collaborative professionals to give advice, apply for divorces and obtain consent orders with a minimum of added process, to allow lawyers to provide ad hoc advice to litigants without counsel, to facilitate limited scope retainers, and to encourage evaluative mediation and collaborative processes. Require legal aid services to fund mediators in non urgent cases before litigation services are provided. Divert provincial taxes on legal fees to funding legal aid.
I’m sure that some or all of these ideas are cockeyed and impossible, however I also suspect that very few of them are genuinely novel.
Unfortunately most of us do not know about what each jurisdiction has done to “improve” the family law process. It is extremely rare in Nova Scotia for Family Law cases to have an expert who is a party witness. Most are appointed by the court to provide information to the court. Our rules give judges authority to require this. The General bench is also moving in this direction. The court is working on implementing a triage system although some semblance of that has existed for some time. Case management by a judge and the requirement that one judge keeps the file has been in existence since the unified courts were created. The court considers itself a “problem solving court” not a “fault finding court”. Judges do not encourage adversarial practices. The rules are more complex than many would like and there are efforts to rewrite and simplify those rules but legislation such as the child support guidelines do complicate that process. Consent orders can be easily filed in our system and collaborative practice lawyers regularly make applications to have these filed. We have procedures for “desk top” Divorces. I suspect our mediators and collaborative practice lawyers do give potential ranges of outcome to those they serve and do suggest which of those may likely apply if the matter proceeded to trial. Yes, I know, associations governing those practices may forbid this as “advice” but my understanding is clients request this service and often the “practice rules” are ignored. I agree the associations should amend their rules but whose responsibility is it to advocate for that change? My main point in describing what is happening here is that none of these initiatives appear to have lessened the “crisis”. More and more people are seek assistance of the “system” to solve what they cannot and fewer persons are available to help them. I have been told, by colleagues in Ontario, that there have been cut backs in court services and there are judicial vacancies that prevent best practices in Family Law such as case conferences, one family one judge etc. Therefore I repeat my concern that without live people to help the “justice system” will continue to be in crisis. I agree all these initiatives should be instituted across the country but I am not confident they will provide the relief many believe will result. Thank you for raising this topic – it is of concern to us all.
Along with the lawyer-centric barriers mentioned in the original post as reasons why access to justice is not progressing as it should, one might also mention the apparent lack of general public interest in the topic, and the resulting lack of political will to do much about it that would involve spending more money. There are certainly initiatives taken in the government departments responsible for courts and civil and criminal procedures, and joint task forces including the bench and bar, but until there is public pressure to put some money into it, there will not be much money.
And other forms of action will drag too. Ontario has had about 30 vacancies in the Superior Court since before last summer, as Beryl mentions, but the federal government is not filling them. Does anyone outside the court/legal system care? Not that the Prime Minister or Minister of Justice notice, obviously. No votes in filling vacancies and having to pay the people appointed.
If the discussion does not get beyond the insiders in the system and the frustrated litigants, it is not going to get as far as it appears to need to get.
According to the Corrections Canada website the public have made their opinions clear at least in terms of criminal justice: “The focus group study also found that attitudes toward the criminal justice system as a whole were much more negative than positive. Participants expressed perceptions of failure of the system at an operational level (“too many offenders get off altogether” or “they’re back on the street in no time”) and suggested problems in terms of unfair or inconsistent justice (“the rich and powerful get off” and “money will fix anything”).
Other negative perceptions revolved around complaints about the system’s overemphasis on the rights of offenders (“criminals get more justice than victims”), the inability of prisons to serve as deterrents (“some prisons are like a country club”), and the inefficiency of the courts (“archaic”, “not enough courts and judges to deal with the number of offenders”).” According to the website the Focus survey cited was done in 1988. I guess the public is silently exasperated at this point. Is there any wonder voters are disengaged.
Just in case you guys are interested, Rob and John-Paul, when I wrote about A2J I looked at Stats Can data on lawyers’ incomes and could see no evidence that they had increased in any material way over time relative to other professionals. Whatever the A2J barriers, they are not from inflation in lawyers’ incomes. The paper is here, although to see my data you will need to get the published version from the Alberta Law Review: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1466206
Also, just to quibble John-Paul, lawyers are licensed, but they are not an economic monopoly. There is no reason to see the supply as constrained sufficiently to be unresponsive to market forces, any more than is the case for other licensed service providers like electricians and plumbers.
Perhaps you could share with us what you mean by “economic monopoly”. I’ve experienced consistently with lawyers a problem I cannot imagine happening with any other profession / trade. No lawyer will work with me because the essence of the cases I’ve pursued are such that the legal profession is either a defendant / respondent or allied with a defendant / respondent party. E.G. my attempted lawsuit in which I named the Attorney General; and the action currently underway in which the Law Society is the respondent.
The comparisons of the legal profession to other professions are pointless. What other profession works in an arena that is totally adversarial?
Chris and Alice, I actually talked about a statutory monopoly, not an economic monopoly. What I meant by that, Chris, is that the legislation in each province restricts the practice of law to lawyers licensed by the province’s law society. Of course each province defines the “practice of law” in slightly different terms, which results in a patchwork effect from province to province.
As far as the relationship between lawyers’ economic circumstances and access to justice are concerned, the studies conducted by Canadian Lawyer demonstrate that lawyers’ fees tend to increase year by year (in my experience, most lawyers in private practice raise their hourly rate every year or two to keep pace with their peers), although with inflation and the changing costs of doing business I can imagine that the increase in lawyers’ rates might not result in a linear increase in their taxable incomes.
My suggestion that the rates charged by lawyers may be unaffected by traditional competitive market forces is based on my observation that in certain areas of the law, especially family law, demand significantly exceeds supply and the effect of competition is therefore correspondingly reduced. If 10,000 homeowners need plumbing services each week and there are only 100 plumbers in town, those plumbers can pretty much charge what they like and the individual homeowner’s choices are limited to either paying their exorbitant rates or attempting to fix it themselves; it’s much the same with respect to legal services. This, I suggest, is another reason for the dramatic rise in the numbers of litigants without counsel… more than half of the self-representing litigants in Julie Macfarlane’s study once had a privately-paid lawyer that they ceased to be able to pay.
With respect, Chris B, an alternative explanation is that no lawyer thinks your suit has any merit at all, so won’t waste his/her time and your money on it. There’s usually someone to sue a lawyer in the right case, just as one can eventually find a doctor willing to testify as to the competence of another doctor – maybe not the first one you ask, but they’re out there.
First, thank you John Paul for your original post, which had a refreshing honesty and frankness about it. Your argument that we continue to underestimate the problem of access to justice in Canada, and that we need to make a far greater commitment of resources (as well as creativity and determination) to the challenges is a perspective that we share at the NSRLP.
Second, I would like to respond to some of the comments that followed in this important discussion.
(1) Of course lawyers have an effective monopoly. Witness the (largely ineffectual) measures being taken to exclude others from any effective role in assisting litigants, and the amount of time and effort consumed by devising of strategies to this end by most (not all, there are some honorable exceptions) regulatory bodies, instead of figuring out ways to responsibly increase assistance to those who cannot afford a lawyer. The argument that this is solely in order to protect the public feels increasingly disingenuous, and it is time for us to admit this.
(2) Lawyers fees are the primary barrier to legal representation and hence (depending on your definition) on access to justice. Whether or not lawyers are “doing better or worse than other professions” is really not the point. The point is that most Canadians cannot afford to pay $350 an hour to purchase a one size fits all ”lawyer-in-charge” retainer arrangement, and fewer and fewer believe that this represents real value for money. Some lawyers may feel this is unfair, that lawyers deserve to be trusted by “non-lawyers” to direct them, that they deserve to be paid a $350 an hour etc – but this is the reality of public opinion, and getting mad about that reality is not helping any of us here.
(3) The Canadian public increasingly does care – a lot – about access to justice. This issue affects growing numbers of people. As we often see when a social issue reaches a tipping point, very large numbers of Canadians are either directly affected, or know someone else who has been. I find it frankly bizarre how many times the assertion is made (with no evident empirical basis) that the public is not really bothered about A2J. If so, they are talking to different members of the public than we are – or perhaps, to no members of the public at all?
(4) Finally, it is well known and well documented that lawyers are reluctant to engage in suits against other lawyers, or to engage in legal action to challenge their economic monopoly. Putting down someone who points out this problem by saying that they obviously “have no case” makes the legal profession look mean and rude, buying into the stereotype so many members of the public unfortunately hold of us, and it ignores the real problem.
Good response, Julie. Just two little comments on the parts directed to mine: (i) if the public cares so much, why aren’t the politicians who depend on the public for votes getting the message, at least about the resources? Efforts are being made generally in the system to get more for less, but when was the last time you heard any politician campaign on a civil justice issue of any kind, let alone on a promise to put more money into it? (ii) I did not say that Chris B ‘obviously’ had no case. I said it was a possible explanation for his difficulty in finding a lawyer to take it. One sees enough cases of professional negligence in the law reports to think that someone must be willing to represent clients against other lawyers.
Great discussion – and thank you to Julie for weighing in, problem is, candidly, we aren’t having these direct “emperor has no clothes” discussions inside A2J formal efforts as far as I have seen.
No one wants to point to a lawyer, a judge, an Attorney General, a Law Society, or a self-represented litigant and say “you’re part of the problem”. We have coy discussions about “rebuilding” without any willingness to say anything that might offend any of the actors.
At the core, IMHO, the lack of political will and public pressure to make change happen. In this regard we’re all complicit. We’re happy to spend (waste) millions of dollars to get “tough on crime” but don’t want to engage change that might actually reduce crime and dysfunction before it occurs.
It is about money and political will – understandably , perhaps, the conversation politically is dominated by crime, terrorism, health care, education – but little if any commitment to true reform.
Julie, there is a difference between a monopoly created by a licensing system and a monopoly that disrupts the functioning of market forces. Functioning markets will have five qualities: an absence of monopoly; informational symmetry; low barriers to exit/entry; no externalities; product homogeneity.
Now interestingly, the legal services market lacks almost all of these qualities. But the one it *doesn’t* lack is the absence of monopoly. There is no player – or even a small group of players – in the legal services market with sufficient control to set prices. Prices can be expected, absent other problems, to reflect supply and demand.
There are other problems of course, and the market does not in fact operate particularly well. However, the relevance of lawyers not earning disproportionately more than other professionals is that it does suggest that lawyers are not extracting rents from their profession with any notable success. Despite your reference to $350/fees, lawyers *as a profession* do not earn incomes that are especially remarkable given their education and qualifications. On average they earn considerably less than doctors, e.g.
Access to justice needs a solution. That solution is likely to come from one of two places: from changes to the market for legal services that allow access to be available or from government action to create it. Or, perhaps, from a mix of both. But if we want to look at the market for legal services as a solution (or barrier) we need to understand what that market is and the forces it creates. The licensing system under which lawyers operate is not what creates $350/hour fees. And, of course, $350/hour fees are not at all reflective of what most lawyers earn as take-home pay.
It is possible that those complaining about ‘monopoly’ are actually complaining about ‘barriers to entry’ – both because it’s hard to get into law school and long and hard to get out of it, and because it’s hard to provide similar or competitive services without doing so.
Barriers to entry tend to result in supply not increasing to meet demand, resulting in a downward pressure on prices. The original post suggested that many lawyers are plenty busy at their current fee level, so are not inclined to reduce it. And those fees are clearly a barrier to many people who might otherwise wish to retain lawyers, whether the lawyers are properly or excessively compensated at those levels.
It is interesting that provinces other than Ontario do not seem to have any pressure from independent paralegals to provide competitive services in some areas.
Two questions come to mind fro mthe following quote: “It is interesting that provinces other than Ontario do not seem to have any pressure from independent paralegals to provide competitive services in some areas.” Are independent paralegals providing competitive services, i.e., are they actually competing with lawyers in some areas in Ontario or are they providing services that had always been relegated to paralegals? What effect are these competitive services provided by independent paralegals having on a2j?
Before paralegals were brought into regulation by the Law Society in 2007, they were absolutely competing with lawyers in many areas. The argument for regulating them was that they were doing things that could affect people’s lives drastically but had no guarantee of any education, any insurance or any oversight, thus any remedy for incompetence except a civil lawsuit.
They still compete with lawyers in areas allowed to them. A good deal of the most public work is done where lawyers probably don’t find it economical to practise, as in traffic court and small claims court.
The main area not allowed to paralegals is family law, and that exclusion is controversial for some. The issue debated is whether there are sufficiently straightforward family disputes that someone without a deep background can handle them (say in doing a mediation and an agreement arising out of it, or just a ‘simple’ separation agreement), or whether one needs the deep background of a lawyer to recognize when nasty issues can arise though the parties may not know about them. Someone inexpert in family law can really mess up what is already a pretty unhappy situation.
Lots of law firms have paralegals, law clerks, conveyancers and so on, and no doubt they help reduce total fees by being less expensive than the lawyers who employ them on files – but it’s the independents who provide services that otherwise would be done without any help.
There was a five-year study of the regulation of paralegals a couple of years ago that thought the system was working fairly well. However, Ontario still has access to justice issues …
Excellent blog J.P. and very interesting and thought provoking responses from all of you. As always Julie M. you have your stethoscope right on the pulse…thank you for listening to everyone and for your honest and professional input. Julies opinions are well-founded and balanced.
I have experience as a SRL and many years experiences dealing with local lawyers in my real estate and farming business as well as having retained some of the top lawyers in Ontario for appeals work in Family Law and now LawPro (Ontario) matters etc.
1. Personally I do NOT believe any longer that the system can fix itself for the benefit of we the people. 2. Also I do not believe that politicians are capable OR willing of fixing the real problems. 3. Judicial mistakes and biases are becoming more and more frequent and blatant. 4. I also do not believe that more taxpayers dollars should go into something that is already so dysfunctional. Can it be fixed?
To further complicate matters, in our democracy the majority, say 51% can subject the other 49% to their will, is this fair, much less just? Where does this leave us constitutionally?
However it all comes down to who is serving who; and why???
The conflicts of interest that exist in politics today AND systems like the legal system are brutally opposed to those whom they claim to serve. Our modern system serves itself and those privileged inside it and NOT we the people. However once the middle class are exposed or become aware to the truth(s) things might change radically. (If the large numbers of the middle class doesn’t become too small first) If the middle class continues to rapidly decrease who will be left to pay the outrageous costs of justice? Please consider what would happen next? As for one who has been used and then brutalized by the system and has NOT received justice yet; I now wholeheartedly tip my hat to people like Chris B! More power to you and may the truth set you free.
Thank You for reading my opinion.
I am not convinced that the present absence on political agendas of an A2J position is evidence that the public doesn’t care about this issue.
Two (and I am sure there are more) interconnected reasons for this spring to mind:
(1) SRLs tell us constantly that they have begun to lobby their local politicians on this issue, but these things take time to evolve – and they may need the support and assistance of the legal profession to press forward the political agenda ( I would love to see THAT relevant line of discussion taken up on SLAW)
(2) Politicians are likely to be reluctant to take on the legal monopoly (back we come to that again!)
There is a lot of denial and defensiveness in many of the comments made on John Paul’s original post. Can I make a plea for us to reorient this discussion on the suggestions and arguments made by John Paul? Or are we forever mired in an “objection your honour” narrative?
John thanks for this response. The Study you’ve provided a link to is certainly very interesting. What caught my attention is the practice helpline and mentoring offered and provided by the Law Society available to both lawyers and paralegals. Curious that an articling requirement hasn’t been imposed on paralegals as well.
” The licensing system under which lawyers operate is not what creates $350/hour fees”.
Yeah, but it is.
What keeps the price of legal services high is not a shortage of lawyers, but the reality that people who provide legal services UNDER THE CURRENT LICENSING SYSTEM have high reservation wages. I mean, think about it, the people who become lawyers are generally pretty accomplished people (graduated at or near the top of their class in undergrad, did OK on the LSAT, completed law school, articling, etc.). They don’t have to work as lawyers. If they find that the remuneration associated with running, say, a criminal or family practice isn’t worth the hours, stress, etc., they can get other jobs. Being a lawyer isn’t so much fun that many people would do it for less than they could make in another industry. So an increase in the supply of lawyers won’t result in downward pressure on the price for legal services below the (relatively high) reservation wage of people who could be lawyers, because they can (and will) always go and work in other areas.
This is evident from the US, which has more limited barriers to entry, where a good chunk of every year’s new crop of lawyers ends up working outside of the legal profession (currently something like 45%).
The problem with the current licensing regime is that its intended to protect consumers by ensuring a minimum (but relatively high) level of quality (i.e,. by requiring that people who provide legal services be lawyers who have attended a propert law school, meet various ongoing requirements, etc.). That’s good, and the quality of the people who provide legal services is generally pretty high. But quality has a price. By focussing on the quality aspect of consumer protection, we’ve ignored the affordability aspect. The only way you can increase access (short of having someone else subsidize it) is by being willing to sacrifice the “quality” of legal service.
And there’s no reason we can’t do that, that’s a trade-off people make all the time in other markets. A Volvo may be safer than a Chevy, but the latter is a lot cheaper. We don’t tell people that they have to buy cars that are at least as safe as a Volvo, because that would exclude many people from the car market. More to the point, for most people, the Chevy more than adequately meets their needs – certainly, it’s better than walking. Ditto for law, while being represented by a paralegal in a family or criminal case may not be as good as being represented by a lawyer (and I don’t want to pick a fight with paralegals, their representation may be perfectly adequate), it may well be better than trying to represent yourself.
Now I firmly believe that the LSUC (or other provincial law societies) genuinely believe in the consumer protection role of the current legal licensing regime (i.e., they’re not doing it to keep up fees). But they’re ignoring the fact that the focus on “protecting” the public is also the root cause of the lack of access to justice. Until they’re willing to accept the need for a multi-tiered market for legal services (and let’s not pretend that we don’t already have a multi-tiered market within the current regime), legal services won’t be affordable
I am not sure that the absence of the A2J issue from political agendas is evidence that the public doesn’t care about A2J. Two possible (related) reasons:
(1) SRLs tell us every day that they are lobbying their local politicians – but it takes time for this to evolve. It may also be that they would benefit from the support of the legal profession in lobbying on A2J issues? (I would love to see a constructive SLAW conversation about this)
(2) politicians may be understandably reluctant to take on the legal profession monopoly….(whether or not this is the or a “cause” of the A2J crisis – and we may disagree on this – we seem to keep coming back to this)
I hope that we are now moving on from the defensive tone of some of these comments to a constructive discussion of John Paul’s ideas.
Bob – fair comment. It is not licensing per se, but it may well be the licensing system that we actually have. Because the point on reservation costs is exactly right. That is, though, not just the licensing system. It is also related to other market failures in relation to universities/law schools and so on.
There are as well other issues. Why, e.g., do we keep family law matters in the courts? Back when we were creating the administrative state, labour and employment matters were significantly removed from the courts and put in administrative tribunals – workers’ comp; labour arbitration etc. Why don’t we do the same with family law, which seems to be where so many of the problems arise.
And I’ll say again: I know what people are getting at with the word monopoly. But it’s not the right word to explain the point you are making, and I think you confuse the arguments by using it and miss the kind of important nuances that, e.g., Bob is pointing out re reservation costs and also John re barriers to entry. It may be the cost of being a former utilities lawyer, but terminology like this does matter to setting out policy arguments.
Alice,
I agree that “monopoly” is completely the wrong word to describe the legal market – it’s a highly competitive market with tens of thousands (in Ontario) separate suppliers. In no meaningful sense of the word is there a monopoly.
The problem is that we’ve created a regulatory regime that drives up the cost of legal services (in the same way that mandating safety standards or airbags drive up the cost of cars, in my Volvo example) without balancing (or without properly balancing) the benefits of that regime against its costs.
Thanks for your comment, Julie. I appreciate your attempt to steer the conversation toward governments’ failure to properly fund and prioritize justice reform efforts. I would appreciate any insight about what can practically be done to put justice reform and access to justice on the agenda prior to the federal election I expect will be called for early- to mid-2015.