How do we as a society decide who is responsible to pay for access to justice initiatives and to what extent? Who sets those priorities and through what lens are those priorities ordered?
Does the fiscal responsibility lie solely with government? Is it the job of government to ensure that all those seeking to access and enforce their legal rights are able to do so, whether through legal aid programs or advocacy services? Many in the legal profession seem to think so. An argument I’ve frequently heard typically goes something like this: We don’t ask doctors and dentists to work for free or fund healthcare, so why should lawyers be expected to do so? Rather, governments have responsibility for administration of justice and therefore should pay for it, ideally through funding more robust legal aid programs.
And in fact, governments do pay for justice services, through courts, prosecutions, corrections, administrative tribunals, legal aid programs and public legal education services.
But saying that this is solely a government responsibility really means that we’re all paying for it. Governments pay for all of these justice services through taxation and user fees so we all contribute to some extent while those who use the systems pay a little bit more.
In addition, as was made evident by recent research from the Canadian Forum on Civil Justice, there are significant “knock on” costs to various systems when legal problems remain unresolved, including costs to health care, Employment Insurance and other social benefit programs. In other words, a lack of access to justice ends up costing taxpayers even more.
But what about the legal profession itself? Don’t we have additional responsibilities in this arena? I don’t buy the argument that this isn’t our responsibility although I do agree it’s not ours alone. Lawyers are the first to benefit from a system in which meaningful and accessible legal services are available to all who desire them and have traditionally been well-paid to deliver those very services.
Of course, there are some lawyers who offer their legal skills pro bono whether to individual clients or through established programs. They do so at some significant expense to themselves and their firms, forgoing billable time to serve those unable to afford the purchase of that billable time. Placing additional burden on those who volunteer is probably not fair.
As you’ll have noted, I have a lot of questions and very few answers. What is clear to me is that if the legal profession won’t commit significant resources, whether through volunteer hours or financial contributions or both, to close the growing gaps in access to justice, we won’t see those gaps diminishing any time soon. Governments are asking why the legal profession isn’t stepping up. The legal profession is quick to point out that governments aren’t meeting their obligations.
It’s a bit of chicken and egg kind of question. Or maybe just a game of chicken. Regardless, the only winners are those who continue to reap the benefit of hourly billings and that’s a declining number too as fewer and fewer are able to afford to pay those bills. Meanwhile, the social and personal costs continue to rise for society as a whole and especially, for those caught in the middle who can’t get the help they need.