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A2J: Preventing the Abolition of Law Societies by Curing Their Management Structure Defects

1. The Defects of the Management Structure of Law Societies

Law societies in Canada have ignored the unaffordable legal services problem (“the problem”), because of the obsolescence of their management structure. Its major defects are:

(1) management by part-time amateurs (benchers), whose work is mostly charity–“amateurs” because they don’t have the expertise necessary for solving difficult problems such as the unaffordability of legal services (and they don’t try to get it);

(2) an unwillingness to attack the causes of difficult problems such as the unaffordability of legal services because their main duties are to their clients and institutional employers, who are their sources of income;

(3) a refusal to innovate because benchers have not reached the point whereat the fear of the consequences of not changing is greater than the fear of the consequences of changing (e.g., the fear of the consequences of a failed innovation);

(4) the lack of accountability to the democratic process, i.e., benchers’ main duty is to the public, to make legal services adequately available, but they are elected by lawyers, and accountability to an elected government has not been effective, and in fact is not operative;

(5) the absence of a process for developing continuing expertise for solving such problems, such as a civil service provides to an elected government;

(6) the necessary but unknown qualities of time and trial-and-error effort to solve such problems, conflict with fulfilling the incentives for becoming a bencher, e.g., becoming a judge or obtaining other government appoints, or formally establishing the fact of one’s success and popularity, and giving back to the profession the benefit of one’s years of experience, and being re-elected as a bencher;

(7) a conflict of interest between the law society’s duty to regulate the legal profession so as to make legal services adequately available, and its duty to represent the interests of lawyers, i.e., law societies’ regulatory powers conflict with their representative powers, and being elected by their lawyer-members, benchers deal with the problems and complaints of those who elect them;

(8) the absence of public pressure, i.e., insufficient opportunity and ability of the public to affect the making of law society policy and practice, and, lay benchers are not the professional experts needed to adequately provide for such public in-put and represent the public interest, as they may have been in the 19th century;

(9) the absence of adequate government surveillance as to: (1) the use by law societies of the monopoly over the provision of legal services granted by law, such as the use of that monopoly as a shield against unfavourable economic circumstances; and, (2) surveillance of the performance of duties imposed upon law societies by law, e.g., s. 4.2 of Ontario’s Law Society Act. And so, LSUC’s management of Legal Aid was not what it should have been for the 30 years that it was its manager, from Wednesday, March 29, 1967 to 1998; and,

(10) the absence of pressure from lawyer-members upon their law societies to deal with such problems, due to a lack of knowledge of the causes, and the corresponding failure of law societies to so inform themselves and inform their membership. That lack of understanding was very evident in the campaign literature distributed for LSUC’s bencher election held, April 30, 2015.

The definition of the problem provided by the in-depth analytical literature is: “the majority of the population cannot obtain legal services at a reasonable cost.” The cause: law society conflict of interest and refusal to innovate.

All of the competitive manufacturing of goods and services long ago moved to a support services method of production. For example, the “parts industry” is a huge and sophisticated support service for the automobile manufacturers. And the medical services infrastructure is composed entirely of interdependent support services. Each is highly specialized, and each produces a high volume of its particular specialized service. As a result, no doctor’s office provides all treatments and remedies for all patients, as does each law office for each client.

As a result, the centralized legal research unit LAO LAW, at Legal Aid Ontario (LAO), is a true support service, but CanLII is not. By 1988, LAO LAW was producing legal opinions at a rate of more than 5,000 per year for legal aid lawyers (lawyers in private practice who do legal aid cases). It did that far more efficiently and at lower cost than those lawyers could do for themselves. LAO LAW developed its large market because it helped lawyers make money, and reduced the money LAO paid out for legal research hours claimed. Lawyers were not required to use the service.

Therefore, the failure of law societies to take action against a problem the size and duration of unaffordable legal services, justifies government intervention under the federal government’s “trade and commerce” power of s. 91 of The Constitution Act, 1867. And s. 4.2 of Ontario’s Law Society Act must be accepted as including a duty to maintain the affordability of legal services—a duty that should be given constitutional status based upon a Charter of Rights s. 15 equality rights argument that recognizes, “legal services at reasonable cost” as a constitutional right, based 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. And Charter arguments need lawyers.

2.0 A National Institute to Compensate for the Defects

To compensate for or cure such defects of management structure, the Federation of Law Societies of Canada should sponsor the creation of a national institute, serving all law societies in Canada. Its purpose would be to develop more cost-efficient methods of providing every legal service, and provide solutions for particularly damaging and difficult problems such as, unaffordable legal services.

But if law societies ignore such advice, intentionally leaving the present problems in place, government intervention would be justified. A democracy should not have to tolerate an unaffordable legal services problem that afflicts the majority of the population. People cannot deal with their legal problems without the help of lawyers because, the law is now too voluminous, complex, often based upon technology that must be understood, and requiring one to cope with the large volumes of electronic records made possible by the great automating power of electronic records technology (being the very technology that has created the prohibitively high cost of electronic discovery proceedings). As a result, if legal advice services were affordable, lawyers would be overwhelmed with work, the profession expanding, and law schools asked to expand their enrollments, instead of the opposites being true.

3. A Support Services Solution

Such government intervention could result in the national institute being given powers for devising and putting in place support services such as LAO LAW. That would have an affect comparable to the recommendations of the Clementi Report of 2004, by Sir David Clementi in the U.K. He reviewed the provision of legal services in England and Wales, concluding that law societies have a regulatory power that conflicts with their representative powers, as to representing the interests of lawyers. He recommended that the power to regulate the legal profession so as to make legal services adequately available, be given to a separate, independent agency. Such an agency would be accountable to the political process, to which law societies in Canada are not because of a lack of government surveillance as to how law societies justify their use of their monopoly over the provision of legal services.

An institute of permanently employed experts could recommend and establish national support services for those parts of the work that law firms cannot do sufficiently cost-efficiently to generate a profit. In contrast, law offices use the case law, statutes and regulations materials provided by CanLII in a “handcraftsmen’s” method of production, without the aid of specialized support services. Cottage industries bear that same limitation. As a result, the unaffordable legal services problem is inevitable.

4. Alternative Legal Services—Cutting Costs by Cutting Competence

The law societies’ response is to support a number of alternatives to the affordable, fully retained lawyer, such alternatives being, among others: 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, for short cases only; paralegal and law student programs; family mediation services; social justice tribunals; court procedure simplification projects; a national self-represented litigants project (the NSRLP); and, arbitration and mediation for alternative dispute resolution. Such programs implement a strategy of “cutting costs by cutting competence,” and have no capacity to make legal services affordable again.

As these alternatives employ an increasing number of lawyers, the fewer will be the lawyers in whose interest it is to solve the problem. As a result, these alternative programs will gradually become permanent i.e., the law societies’ complete answer to the unaffordable legal services problem.

See also: (1) “Access to Justice: A Critique of the Federation of Law Societies of Canada’s Inventory of Access to Legal Services Initiatives of the Law Societies of Canada” (pdf; posted on the SSRN on, May 21, 2014); and, (2) “Self-Represented Litigants’ Tax Money Provides More Funding for Legal Aid Ontario,” (posted on Slaw, on July 31, 2015).

5. Leaving Out the Public and the “Public Interest” from this Evolution in Legal Services Delivery

But such evolution in the provision of legal services leaves out:

(1) an accountability to the democratic process by benchers for the use of their powers and the performance of their duties as created by law;

(2) the population’s views and desires as to this evolution in the use of the legal profession’s monopoly over the provision of legal services to impose a “cutting costs by cutting competence” limitation upon people’s ability to access justice;

(3) the population’s consent to the use of that monopoly for the economic purpose of shielding the legal profession from having to change its method of delivering services so as to be compatible with the economic ability of the population to afford the profession’s legal services; and,

(4) the taxpayers who finance the justice system whereat the legal profession, including benchers, earn an income that is considerably better than the average income of taxpayers, but the majority of those taxpayers cannot have a lawyer who can provide legal advice services at reasonable cost.

6. The Unaffordable Legal Services Problem was Inevitable:

Our law societies don’t develop real solutions for such problems. But in 1978-79, the Ontario Government applied the necessary pressure to LSUC’s Legal Aid Committee, to reduce the “unaffordable” amounts it was allowing to be paid out by Legal Aid for legal research hours billed by lawyers. As a result, LAO LAW happened. It is the legal profession’s best legal research unit.

But it exists in its most poorly resourced part—a social welfare agency providing “poverty law” services. And it has since suffered several cuts in its government funding, and therefore so has LAO LAW. It continues as a true support service but it has had to shift from emphasizing its production of complete legal opinions, to the free downloading of highly specialized memoranda of law, factums, and other materials.

7. Legal Research is not the only Support Service, and only Routine Legal Services Can be Automated

The support services method of production is not limited to legal research products. It can establish support services, and determine where specialized practices of law should be created. And it can continuously monitor developments in other countries. In regard to the changing needs of the public, law society management is passive and not proactive. It doesn’t react until problems are serious, and even then, it is free to choose not to react at all.

Such an institute could provide a single bargaining agency on behalf of all lawyers in Canada, by which to obtain the automation of routine legal services, and not have to endure ownership by a commercial investor to get it, as proposed by the ABS investors. The former provides lawyers with the strongest of bargaining positions; the latter, the weakest. The ABS strategy is to own and enfranchise law firms, without the creation of support services. Such investors are “another mouth to feed,” without the ability to solve the unaffordable legal advice services problem. Commercial investors are in the business of making money, and not in the business of satisfying the, “in the public interest” and social welfare obligations imposed by legislation such as s. 4.2 of Ontario’s Law Society Act. The practice of law is not a business, and business is not the only agency that can make law firms as cost-efficient as they should be and legal services as affordable as the population deserves. Otherwise, the profit duty owed to commercial investors will replace the fiduciary duty owed to clients.

8. Alternative Legal Services and the Angry Taxpayer

Conservative institutions do not change until the fear of the consequences of not changing is greater than the fear of the consequences of changing. Our law societies do not yet fear the consequences of not changing, even though they have no answer for the angry taxpayer who demands to know, via the social media, and news media:

Why can’t I have an affordable lawyer of my own? I pay for the justice system where you lawyers earn a very good living compared to me. But I must use the second best solutions of clinics, and pro bono and targeted legal services, and various forms of self-help. You say you take this “access to justice” problem very seriously. I don’t believe that. If you were serious and ethical, you would be trying to solve the problem. You can’t show me anything that you have done about trying to solve the problem. I can’t have an affordable lawyer of my own because you use your monopoly over legal services to serve yourselves, but not the needs of the public for legal services. Why should I give my respect and tax money to your justice system?

9. CanLII as a True Support Service as a Major Part of the Solution

Beginning in July 1979, LAO LAW avoided using the profession’s handcraftsman’s method of providing legal research services, while CanLII in its present form serves to perpetuate the handcraftsman’s method. But CanLII has the developed national market of lawyers and judges, and LAO LAW has 36 years of know-how and success with which to provide that market with the services necessary for making legal advice services affordable. So, join these advantages. Because of its much greater size and market, CanLII could obtain greater benefits from specialization, scaling-up, and the principles of database management dedicated to maximizing the re-use of finished work-product, than LAO LAW can. “Bigger is better.”

In addition to its client-specific legal opinion services, LAO LAW makes available hundreds of general and specific memoranda, draft factums, and other materials that can be downloaded. Such is the innovative power of a competitive support service. In August, 2013, I sent a detailed paper explaining all of that to CanLII’s Board of Directors, and also to many of LSUC’s benchers; see: “Access to Justice—Canada’s Unaffordable Legal Services—CanLII as the Necessary Support Service” (pdf). That produced nothing.

10. Funding such an Institute

The funding for such an institute would come from the revenue earned by CanLII. It would have a national market of all lawyers—a market without competitors, and a judges’ division as well, feeding off the same ever-growing database of finished work-product. Maximizing the re-use of finished work-product is a key principle of creating the high cost-efficiency of a centralized legal research support service like LAO LAW, accompanied by highly specialized legal materials used, and specialized principles of database management. And there are many university and other institutes connected with and studying the justice system with whom to form agreements, including matters of funding.

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).

The more that people cannot enforce the rule of law for themselves and their families, the less reason there is to obey the law. In other words, corruption begets corruption. So, value the legal health of a community as being as important as its physical and mental health. Then, automation will never replace lawyers. But if a lawyer’s advice remains unaffordable for the majority of the population, we may just do away with ourselves. So, we need better leadership than our law societies provide.

The longer version of this article is posted on SSRN.

Comments

  1. I wonder if we might count on the opportunism of some political party to
    make an election promise to increase Legal Services funding, conditional on some undertaking by the regulatory bodies to effect real change of this kind.

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