The cynical phrase, “Let Them Eat Cake,” is more appropriately attributed to Marie-Thérèse, the wife of Louis XIV, 100 years before Marie Antoinette, the wife of Louis XVI of France, about whom such royal indifference to starving peasants pleading, “bread, bread,” is alleged most frequently. If they were begging for bread, they certainly didn’t have cake. So to prevent a law society from appearing to be equally indifferent to the suffering of people who cannot afford lawyers, how should law society benchers explain their intense promotion of alternative legal services, and the resulting cynical phrase: “let them use alternative legal services”?
I’ve written several articles having the theme that instead of offering the residents of Canada alternative legal services, its law societies should be trying to solve the unaffordable legal services problem, i.e., that the majority of the population cannot obtain legal services at reasonable cost. For a detailed presentation and analysis of the alternative legal services provided by Canada’s law societies, see: “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.”
By advocating the use of alternative legal services a law society declares to that majority: “Never again will you have an affordable lawyer who will do all the work needed to deal with your legal problems. But, we have the following alternative legal services.” Such “alternatives” are based upon a strategy of “cutting costs by cutting competence.” They are, for example,
- targeted (unbundled) legal services (as distinguished from a full retainer to provide all of the legal services necessary to deal with clients’ legal problems);
- clinics of various types;
- paralegal and law student programs;
- family mediation services;
- social justice tribunals;
- arbitration and mediation for alternative dispute resolution;
- public legal education and information;
- advice from non-lawyers;
And other support services, for example:
- summary advice and referrals;
- public legal education and information
- assessing legal needs (surveys);
- prepaid legal insurance plans;
- self-help and legal information services;
- court procedure simplification projects;
- The National Self-Represented Litigants Project
- pro bono and low bono (reduced fees instead of pro bono’s no fees);
These programs provide some improvement in access to justice and legal information, but far from enough to provide a solution to the unaffordable legal services problem. Therefore they should not be used as a replacement for lawyers’ providing fully competent and ethically provided full-retainer legal services at reasonable cost. They should not be allowed to become the law societies’ permanent and only answer to the unaffordable legal services problem. It is contrary to the duty and purpose of law societies that alternative legal services be used as a reason for not attempting to find a solution to the problem, i.e., “let them ‘eat’ alternative legal services instead.”
And all of them should not be referred to, as the above cited, “Inventory of Law Societies’ Initiatives” text does, as being, “legal services.” Some of them involve providing legal information and “self-help”; not legal services.
Such a declaration by a law society of “alternatives” to affordable legal advice services, is a confession of failure—a confession of an inability to serve its purpose in law, i.e., to regulate the legal profession so as to make legal services adequately available: e.g., s. 4.2 of the Ontario Law Society Act. So, replace them if they cannot fulfill their purpose.
Such alternative legal services mean a shifting of decision-making from judicial to administrative services. Judicial decision-making provides five advantages not adequately provided by administrative agencies: (1) a clear and exact burden of proof; (2) an opportunity to rigorously test the evidence for accuracy, integrity, and persuasiveness; (3) a thorough debate as to the correct interpretation and application of the law for the issues and evidence involved; (4) a decision by a truly impartial and competent adjudicator; and, (5) the right to a jury trial, in situations allowed by law. When an “administrative” approach replaces a judicial approach to decision-making, the counterparts to the first four are much compromised by the limitations, weaknesses, conventions, biases, and institutional cultures of the administrative agency.
But unfortunately and nevertheless, a “cutting costs by cutting competence” strategy is being used to cope with the unaffordable legal services problem. Because no effort is being made by law societies to provide the leadership to replace the obsolete method by which legal services are provided, that “shifting” away from the judicial to the administrative will increase. For that majority that cannot afford legal services, particularly lawyers’ legal advice services, the courts will become much less important. The trial courts will be used only by rich litigants and for criminal trials. In the public mind, being a trial judge will be associated with only those purposes—to provide the rich with expert adjudication and protection.
To the contrary, the independence of the legal profession from government intervention is essential not only to the independence of the judiciary, but also to respect for the judiciary. But current law society performance invites government intervention, and makes public respect for the justice system more difficult to maintain.
And this transition from “the judicial to the administrative” is happening without participation by the public and without public approval. There is a “democratic disconnect” in that law societies’ duty is to the public, but benchers are elected by the members of their law societies. Members’ complaints receive benchers’ attention and that public duty is very inadequately dealt with, if not ignored. And governments are not holding law societies accountable for their use of the legal profession’s monopoly over the provision of legal services. And “lay benchers” are not the experts or “voice of the people” needed. This is the 21st century, not the 19th century. And law societies don’t have a government-type civil service to provide the necessary continuing expertise for solving such problems as unaffordable legal services. Which leaves nothing within law societies’ resources to attack the problem but benchers. But they are part-time amateurs in that they don’t have the necessary expertise, nor do they try to obtain it. It is not a legal problem. It needs an expertise that lawyers and law societies don’t have.
To provide the necessary continuing and evolving expertise, a permanent, national institute should be created, available to all of Canada’s law societies. It would be funded by enabling CanLII to provide legal opinions at cost, as explained in, “A2J: Preventing the Abolition of Law Societies by Curing Their Management Structure Defects,” (Slaw, September 25, 2015).
As a result of not dealing with the problem, the way the work is done so as to provide legal services is obsolete. There has been no innovation to move from the present “handcraftsman’s” method, used by cottage industries, to a support services method of production. Wherever in the production of goods and services there has been the necessary pressure to make it happen—such as the competition of the commercial marketplace—that transition has occurred. And there are also other forms of that necessary pressure. For example, no doctor’s office provides all treatments and remedies the way a lawyer’s office does for all clients. All parts of the medical infrastructure of services are highly specialized, interdependent support services. In contrast, the law firm is a producer without comparable support services. Therefore the unaffordable legal services problem is inevitable.
It cannot be solved because law firms don’t have the necessary high degree of specialization and scaled-up volume of production that support services provide, e.g., the huge “parts industry” that provides very sophisticated support services to the automobile manufacturers. Therefore the cost-efficiency of all law firms can never be made sufficient to solve the problem. No matter how much it is improved, a bicycle cannot be made to have the speed, capacity, and cost-efficiency of a motor vehicle, nor a motor vehicle with wings be made to serve as an airplane.
All that has been written about the problem is based upon the assumption that the solution lies in bringing about the right improvements to the present method of providing legal services. The cause of the problem is not the lack of the right improvements, but rather the method itself. It hasn’t ever changed. Doctors used to work separately and individually like lawyers still do now. But since then, there has been constant pressure to force constant innovation in the methods of delivering medical services. There has been no comparable pressure on the legal profession, therefore there has been no comparable innovation. And worse, there has been no innovation in the management structure of law societies, and as a result, no leadership to bring about the necessary innovation in the production of legal services.
So it is that the third most important professional service provided to the public (after medical and educational services) is managed by part-time amateurs, just as it was when Canada’s law societies were created. If they had had strong leadership instead of leadership dedicated to maintaining its popularity with their lawyer-members, the legal health of Canadian communities would be considered to be as important to their wellbeing as their medical health, and their lawyers as important to them as their doctors. Instead, in the present circumstance wherein the majority of the population cannot obtain affordable legal advice services provided by lawyers, an attitude and performance that says, “let them use alternative legal services,” is an invitation to a brutal revolution—a revolution that will bring about the amputation, if not the complete elimination, of law society powers, purpose, and prestige.
To provide a more in-depth analysis, I’ve written these articles (pdf downloads from the SSRN):
(2) “Access to Justice — Unaffordable Legal Services’ Concepts and Solutions” (35 pages);