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Self-Represented Litigants’ Tax Money Provides More Funding for Legal Aid Ontario

Rejoicing over Legal Aid Ontario‘s (LAO’s) recent increased funding from the Government of Ontario, should be tempered by the listed “points of conscience” that follow this next paragraph.

The Government of Ontario’s 2014 budget increased Legal Aid Ontario’s financial eligibility funding of legal services by $95.7 million over the next three years. This commitment was expanded in the April 2015 budget announcement. These recent articles celebrate LAO’s increased funding:

(1) “Expanding access to legal aid for Ontarians, by Nye Thomas, Legal Aid Ontario Blog, June 5, 2015, at: http://blog.legalaid.on.ca/2015/06/05/expanding-access-to-legal-aid-for-ontarians/

(2) “Expanding LAO’s services: the road ahead,” by Nye Thomas, Legal Aid Ontario Blog, June 18, 2015; at: http://blog.legalaid.on.ca/2015/06/18/expanding-laos-services-the-road-ahead/

(3) “Legal Aid Ontario to expand financial and legal eligibility”, mailing list email from LAO, June 8, 2015.

(4) “Welcoming Legal Aid Ontario’s New Funding – and Asking Some Important Questions” by The National Self-Represented Litigants Project blog, June 16, 2015, at: http://representingyourselfcanada.com/2015/06/16/welcoming-legal-aid-ontarios-new-funding-and-asking-some-important-questions/.

1. There’s this contradiction: the taxpayer who pays for LAO’s increased funding, but cannot have an affordable lawyer, but earns too much to qualify for a legal aid certificate for free or supplemented legal services, pays for the justice system whereat all lawyers earn a very good living, directly or indirectly, in comparison with the average income of taxpayers. The Ontario Government ignores the lack of affordable legal advice services for the majority of the population, but improves LAO’s funding so as to improve legal services for a comparatively very small section of the population. It tolerates law societies’ failure to deal with the unaffordable legal services problem (“the problem”), e.g., in Ontario, the Law Society of Upper Canada’s (LSUC’s) failure to perform its duties as defined by s. 4.2 of the Law Society Act to: (1) maintain and advance the cause of justice and the rule of law; (2) facilitate access to justice for the people of Ontario; (3) protect the public interest; and, (4) act in a timely, open and efficient manner. Ask self-represented litigants what they think of such choices for spending their tax money, and what they think of the legal profession.

2. Projects such as the National Self-Represented Litigants Project (the NSRLP) would have no purpose if the problem did not exist. That is true of the ever-increasing number of alternatives to the affordable, full-retainer lawyer, such as, clinics of various types, programs for targeted (unbundled) legal services (as distinguished from a full retainer to provide the whole legal service), pro bono charity, paralegal and law student programs, and family mediation services, social justice tribunals, and court procedure simplification projects, and other alternatives such as arbitration and mediation for alternative dispute resolution, and big law firms’ promotion of ABSs (“alternative business structures”) for lawyers and law firms, so that the commercial investors, who will be their clients, can own and enfranchise strings of smaller law firms and pay the never-ending fees to those bigger law firms to help them do so.

Those very second-best alternatives collectively tell taxpayers that they are going to have to accept them, in place of affordable legal advice services that are sufficiently affordable such that they can be provided by a lawyer who will do all of the legal work necessary to obtaining the best that the rule of law can provide. As a required consequence of neglecting the problem, Canada’s law societies should have to declare, very publicly to taxpayers, that the majority of them can no longer expect to have that, but nevertheless, they must continue to finance the justice system where lawyers earn a good living, and to continue to finance the free legal services that Legal Aid provides. Of course they won’t; therefore there needs to be public discussion as to replacing law societies because they are an out-of-date and no longer capable method of regulating the provision of legal services by lawyers.

3. Those second-best alternative legal services are employing an increasing number of lawyers and law society benchers. So, the growth of those alternatives means that it is not in the interest of an increasing number of lawyers and benchers to solve the problem. This “alternatives” approach to the problem is becoming permanent, which serves well the usual simplistic approach taken to the work of benchers. They don’t have to endure the trial-and-error work, time, and stress necessary to achieving the know-how innovation that can make legal services affordable. But the taxpayer has no “say” in this evolutionary process, but must pay for it in double endurance: by way of a reduced quality of legal services, and by way of continuing to pay for the justice system.

4. Canada’s law societies ignore the problem because it is contrary to the self-interest of benchers to try to solve the problem, e.g., the extra time needed for that necessary trial-and-error innovation towards a solution would conflict with the needs of benchers’ clients and institutional employers. They don’t risk their time and tolerance becoming “spread too thin.” And a failed innovation might be expensive, and hurt one’s reputation, and make one unpopular, which is not the way to get re-elected as a bencher, or become a judge, or get some other government appointment on a law society recommendation, or demonstrably embellish one’s career as a successful, popular lawyer giving back to the profession the benefit of one’s experience. In other words, the management structure of law societies has been obsolete for as many decades as the unaffordable legal services problem has existed.

5. If that taxpayer asks lawyers, “why haven’t you demanded that your law society, along with all of Canada’s law societies acting together, seriously attempt to solve the problem of unaffordable legal advice services?” What will your answer be? Ask the Treasurers and Presidents of our law societies why are there no such programs that attack the problem, and why is there no public declaration by any of them that, “this problem is our problem, and it is our duty in law to solve it”? Nevertheless they repeat, “we take the ‘access to justice’ problem very seriously.” Then why has it continued to grow worse for decades—worse in its victimizing the population, the courts, the legal profession itself, and legal aid funding?

6. For example, LSUC ignores the problem and its duties as set out in s. 4.2 of the (Ontario) Law Society Act, while “fast-tracking” the Alternative Business Structures issue (ABS issue) to the quick creation of: (1) an ABS Committee (2) a (biased) ABS Discussion Paper written by the Committee; (3) the online publication of the responses thus obtained; (4) the online publication of a summary of those responses–all done by the work of those self-interested benchers who have campaigned hard to have ABSs made legal; and (5) a proposed vote in 2016 to determine the law society’s position as to making ABSs legal. But, should those self-interested benchers be allowed to vote, in spite of that conflict of interest? They might answer in self-defence of self-interest, “but we are doing only what benchers have always done,” which would corroborate the abundant evidence that law society management is obsolete.

For a summary of the responses to the ABS Discussion Paper, see the “Alternative Business Structures Working Group Report” at Tab 8.2 of the Report to Convocation, (pdf) February 26, 2015, of LSUC’s Professional Regulation Committee. For my analysis, see: “What a Law Society Should Be—A Response to the Law Society of Upper Canada’s Alternative Business Structures Discussion Paper of September 24, 2014” (pdf).

7. Is there an analogy to a political lobbyist’s seeking a change in the law for his/her client, by providing: (1) campaign funds to the politicians in power; and, (2) very good paying executive jobs when those politicians retire? There is no counterpart to the Canada Elections Act, Part 18, to prevent such practices within the legal profession. Benchers can be “rain makers,” helping their law firms act as lobbyists for their clients, who are the investors who want to own law firms. So those benchers have to enlist law society support to ask the Ontario Government to change the law that says that non-lawyers cannot provide legal services (Law Society Act, ss. 26.1(1) and 26.1(5)). When that amendment to allow investors to own law firms is achieved, there will be big and long-continuing fees paid by those investors as they buy-up and enfranchise hundreds of strings of law firms, i.e., big fish eating-up little fish, starved for clients and confident viability, and as a result, little negotiating power. That is what the ABS Discussion Paper says that they have done in other jurisdictions (at pages 9 and 13). And senior partners could become investors themselves in related companies, or become executives of investor-controlled companies. That’s a well-trodden path; see p. 312 of Christopher Moore’s book, The Law Society of Upper Canada and Ontario’ Lawyers, 1797-1997 (University of Toronto Press, 1997).

8. Law society management is management by part-time amateurs, whose work is mostly charity. It is 19th century management in a 21st century world. For many years it has not made legal services adequately available, nor has it tried to do so. To try is to take on the long hours and risks of trial-and-error innovation, which time might conflict with the needs of clients and institutional employers, and law office administrative duties. Therefore don’t try. If it’s not broken, don’t fix it. But “it” is never broken until someone with the necessary power insists that it is broken. Governments don’t exercise the power of oversight of law societies that they should—“there’s no votes in justice,” meaning the justice system. Therefore it is never broken. And therefore “it” is never fixed.

As a result, law society management has no purpose. Therefore abolish it. Otherwise, go on suffering a poor economic future for the practice of law—at a time when people have never needed lawyers more. If legal advice services were affordable, lawyers would be overwhelmed with work, and asking law schools to expand their enrollments instead of contracting them. The profession should be expanding instead of contracting. Blame law society management, or go on willingly and quietly suffering your very poor economic future as a lawyer. But that excludes those lawyers who have clients wealthier than the middle class, which means lawyers with highly specialized professional clients, and those in the big law firms.

Instead of complete abolition, a substantial partial variety is what the Clementi Report in 2004 advocated for England and Wales, i.e., give law society regulatory powers to a separate and independent agency, because they conflict with law society representative powers—powers concerning the interests of the lawyers of those law societies. Benchers’ duties are to the public, but they are elected by lawyers. That’s a “democratic disconnect.” Therefore, the third most important professional service provided to the population, legal services, lacks effective accountability by those who regulate the legal profession. As a result, public duties are ignored, such as those imposed by s. 4.2 of the Law Society Act (Ontario). Instead, lawyers’ short-term interests are served.

The recent Ontario bencher election campaign literature reflected that bias. Almost all of it listed the “access to justice” problem, but with no plan, or strategy, except to ask government for better funding for Legal Aid. It shows a lack of understanding of the cause of the problem. Law society neglect of the problem, while that majority of taxpayers who can’t afford legal advice services becomes a bigger majority, is making increased funding for legal aid increasingly politically unwise. As a result of that ignorance of the economics of the problem, lawyers don’t demand that their law societies take steps to solve it.

9. A democracy does not have to tolerate such poor performance from its law societies. When that majority that cannot afford legal services becomes large enough, very quickly the social media and the news media, and the pressure groups, will make the problem a major public issue, and shortly thereafter, a major political issue. The result will be: (1) a Canadian Clementi Report solution; or, (2) the legalization of non-lawyer provided legal services—every commercial and institutional organization will be able to employ lawyers to provide legal services to their clients and customers so as to occupy the market that the legal profession has priced itself beyond; or, (3) a government-sponsored program using a recommendation from the report of University of Toronto Law Professor Michael Trebilcock, Report of the Legal Aid Review 2008, to convert Legal Aid Ontario’s (LAO’s) more than 70 legal clinics to provide legal services at cost to the middle class, along with promoting the purchase of legal services insurance like we buy home and auto insurance. As stated by Prof. Trebilcock (p. 77): “… both LAO and the Government of Ontario, through the Ministry of the Attorney General, need to accord a high priority to rendering the legal aid system more salient to middle-class citizens of Ontario (where, after all, most of the taxable capacity of the province resides).”

And, with sufficient specialization among those LAO offices, acting as mutually interdependent support services, along with LAO LAW’s sophisticated and unmatched centralized legal research support services, they could provide legal services much more cost-efficiently than can any law firm. That’s a “support services” method of production, which all competitive producers of goods and services use, because of its great flexible capacity for increased cost-efficiency which enables improved products and services without having to increase their price. That’s why there’s such a large “parts industry” support service for the automobile manufacturers. Instead, the legal profession still uses the obsolete “handicraftsmen’s” method, which has very limited capacity to innovate greater cost-efficiency, and therefore has no capacity to maintain the quality of legal advice services while having to cope rapidly increasing volumes of law, their complexity, and electronic records, without increasing their price.

Of assistance to such government and private intervention would be a Canadian Charter of Rights and Freedoms argument, recognizing “legal services at reasonable cost” as a constitutional right. Based inter alia, upon the concept that being middle class, or of “middle income,” and unable to obtain legal services at reasonable cost, is a state of one’s condition that is “immutable, or changeable only at unacceptable cost to personal identity,” and to one’s ability to invoke constitutional rights and freedoms, and the rule of law. Such a right would provide a legal platform from which law society neglect of the problem and its failure to perform its duties under s. 4.2 of Ontario’s Law Society Act could be attacked. See my paper, “Access to Justice—The Unavailability of Legal Services at Reasonable Cost and the Canadian Charter of Rights and Freedoms” (a pdf file of 66 pages, on the SSRN (the Social Science Research Network)).

Whichever of those three alternatives is used, law societies will lose, power, prestige, and purpose because law society management as it is now, cannot make legal services affordable, mainly so because it doesn’t want to try. For example, I recommended (in a paper of some 65 pages) to several benchers and to the Federation of Law Societies of Canada (the FLSC), the sponsor of CanLII, that CanLII be scaled-up to provide the legal opinion service at cost to every lawyer in Canada, that LAO LAW provides free to Ontario’s lawyers willing to service legal aid cases. That was rejected without analysis and with indifference.

To remove a large part of the weakness of law society management structure, a national institute has to be created by the FLSC that provides continuing expert advice to all of Canada’s law societies as to how to deal with problems like the unaffordable legal advice services problem. Such institute would provide the continuing expertise that the present management structure lacks, and would compensate greatly for the avoidance of difficult problems by benchers. To solve funding shortages, partnerships with all of the institutes and divisions of universities that study the justice system, could be established. For example, Ryerson University in Toronto has a related institute, headed by a former Ontario Attorney General, Chris Bentley, who is the Executive Director of the Law Practice Program & Legal Innovation Zone, that seeks to establish projects that aid the justice system. Funding is no excuse, unless benchers want it to be.

Otherwise, Osgoode Hall, LSUC’s headquarters in downtown Toronto, is destined to become a beautiful museum, exemplifying early nineteenth century architecture. LSUC moved into it in 1832. From a more contemporary site, the new Law Society of Ontario will make 21st century legal services adequately available and affordable, or be replaced by the democratic process. The “democratic disconnect” will have been removed.

Only then should the taxpayer approve of better funding for Legal Aid Ontario. And as the unaffordable legal services problem grows smaller, the NSRLP should willingly evolve to provide the legal profession’s counterpart to the family doctor’s sorting and triage service for the medical profession’s sophisticated infrastructure of mutually interdependent support services—the NSRLP staff explaining how troubles contain legal problems, that very often are not apparent to the average person, and then finding the right lawyer and legal service for every person asking for its help. It can do so nationally and better than can any law society lawyer-referral service. But now, the NSRLP is a second-best solution, albeit very commendable. But it should strive to become a first-best solution. Otherwise, it feeds itself from the consequences of law society neglect of the unaffordable legal services problem, with its power, prestige and national scope based upon the continued existence of that problem.

The problem of unaffordable legal advice services is inevitable only if lawyers want it to be inevitable, and only as long as governments and public opinion allow it to remain. Thereafter, the inevitable loss of law society power, prestige, and purpose will become very noticeable, and permanent, and deserved.

I what lawyers to again be as respected in their communities as are their doctors. But the volumes of self-represented litigants and population majorities without affordable legal advice services prevent that. So, is one being too cynical to say, “we should all only live so long that such respect should happen again.”?

For more detail on all of the above, see the “access to justice” articles listed on, My SSRN author’s page (for free access pdf downloads).

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