Law’s Reverse Musical Chair Challenge
Despite recent years of decades-low law school application levels, law school seats are still heavily over-subscribed. Similarly, for those who graduate (which, to be honest, is nearly every single admitted student that manages to pay tuition), the opportunities to be called and to practice as a lawyer is case of too many grads and too few jobs. Yet when it comes to supporting the legal needs of the public, lawyers aren’t even close to filling the chairs that exist, much less the new ones added each day. Worse, we’re increasingly less interested in doing so.
Estimates and sources vary, but we routinely hear numbers in the range of 70-85% when people discuss the prevalence of legal or justiciable issues that could be but aren’t addressed by a lawyer. That’s a lot of empty chairs!!!
Our lives aren’t getting any less complicated, and the need for guidance on legal matters will not only remain significant but will surely grow. So if the same or even an increasing number of “chairs” are being added, who will step up to fill them?
With the exception of a closing thought at the end, I’ll refrain in this post from getting into the protectionist regulatory environments through which lawyers limit the opportunity for others to step in and serve the public need and the public interest. Instead, I’ll focus on the trends showing that fewer lawyers are seeking careers where we serve the public directly.
17% decline in total number of solo practitioners and 10% decline among total number of licensees working in Ontario law firms
In the 2013 Annual Report of the Law Society of Upper Canada we learn that 9,072 lawyer licensees declared their primary business activity as operating their one-person law firm. In the 2015 report that number was down dramatically to 7,577.
Those same reports tell us that in 2013, there were 26,731 lawyers and licensed paralegals working in Ontario law firms. In 2015 we saw a surprising drop down to 23,938 licensees.
These numbers are all the more shocking considering that during this two-year period, Ontario admitted 4,200 new lawyers and 2,500 new paralegals. Even accounting for offsetting departures from both streams of the Ontario legal profession, the province still saw a net increase of 3,000 lawyers and 1,700 paralegals to the rolls of the Law Society.
When we note further that the population of Ontario increased by 241,000 people during this same period, it’s hard to avoid concluding that the chairs of legal need keep appearing, but our fellow licensees are not rushing to fill them.
Barely half of Ontario’s lawyers are even insured to serve the public.
The law in Ontario provides that any lawyer who practices law must have malpractice insurance, yet there are many categories for which the lawyer is exempt from the obligation. These include categories for non-practicing lawyers as well as for lawyers whose practice is strictly limited to serving their employer – be it corporate, government, or other. LawPRO, the malpractice insurer for Ontario lawyers, reports that it provided Errors and Omissions insurance to 25,500 lawyers in 2015. Relative to the 49,040 Ontario lawyers on the rolls, that means just 52% of us are choosing to keep the door open to serving the public.
In terms of “full-time-equivalent” lawyers,serving the public, the number is certainly below 50% since within the insured cohort, a little over 7% are insured for part-time practice only. “Part-time” lawyers declare that they intend to allocate less than 20 hours a week to the practice of law. How many of those, like me, practice for well below the 20 hour limit is unknown.
Now, Ontario isn’t necessarily representative of the rest of Canada – or of the United States or any other jurisdiction struggling with access to justice challenges and an underserved population. But neither is Quebec, where we learn from the Barreau du Quebec that at the end of 2014, only 39.8% of lawyers are in private practice. Representative or not, it is remarkable that across Canada’s two largest provinces – which account for nearly 75% of the Canadian legal profession – the majority of lawyers do not serve the public directly.
When we see more and more people wanting to be lawyers, and most of them are choosing careers where they do not serve the public directly, it this the tipping point we needed to invite others into law’s game of reverse musical chairs? If not, what other signs could we possibly be waiting for to definitively conclude that the public’s need for legal assistance will not be addressed by lawyers alone?
Part of the issue (if not the predominant one) is that in order for lawyers to serve the public, the public must recognize the value and need for lawyers as a mechanism towards serving the overall good.
Without this recognition expressed through tax dollars spent, lawyers cannot act unless they do so on a pro bono basis. While laudable and encouraged, this is not sustainable as a matter of career commitment. As such, lawyers must look to other occupations that employ and support them.
My experience comes from the criminal law context where this is quite common. In this area of law, there is never a shortage of lawyers willing to act on behalf of individuals; however, the under funding of Legal Aid makes it nearly impossible for a lawyer (particularly recent calls) to survive. With proper funding, there is little doubt we would see a sharp increase in those acting for the public.
From what I have come to see over the years, the priority for lawyers in planning their careers is hierarchical to the extent they seek: 1) Compensation that provides for a quality of life that is acceptable (that is not necessarily excessive), 2) Job or financial security, and 3) Satisfaction in their work (which is often at its highest in “public good” areas of law).
As such, without the public, through the government, providing the means for lawyers to survive and move past 1) above, they simply cannot afford or take the risks to fulfill the loftier hopes we have for lawyers in acting on behalf of public interest. In short, working for the public directly requires the public to directly want us to be there for them. Sadly, it is often only in times of crises that people come to terms with how important that ideal is. Until the public comes to see that importance in a similar way its important to have hospitals when we get hurt, lawyers are forced (not choosing) to use their skills for employers and initiatives that recognize that value through adequate compensation.
I say all of this without casting blame on the public but on the importance of all our collective organizations (LSUC, OBA, CBA, NFLSC, etc.) to constantly lobby governments and advertise to the public on why their money is well spent on justice – an end result that is best delivered through lawyers.
The numbers tell an interesting story about the misalignment between supply and demand in subsegments of the legal industry.
The problem has to do with lawyers not being able to make enough money working in the underserved markets. But the answer isn’t more public funding.
The problem is the direct result of law societies’ and its members’ failure to make the reforms necessary to encourage innovation in the delivery of legal services – specifically allowing outside capital and persons to participate in the delivery of legal services. Lawyers don’t have the time, money, scale, or business or IT expertise to do this on their own.
Until we stop thinking our profession is unique and special, and accept that legal services is a business just like any other, we will not see any meaningful change. If you have any doubt about the elitism of lawyers and how this impedes progress, just look to any discussion about the “Walmartization” of law.
The reforms we need should have happened 20 years ago. While we continue to debate, the public and new members of our profession continue to be left behind. What are we waiting for?
Lawyers (and the courts) are heavy artillery. They are too much for most legal issues. Established firms control most of the remaining market because fresh graduates are short on the main quality clients seek: trust. That or they don’t have the marketing skills to communicate trust to clients.
Traditionally, law schools ran a pipe to law firms to solve this problem. This pipe is broken now for many reasons. Law firms’ hold on the market is also weakening because of their big overhead and low adaptability. New trusted structures will arise to funnel work to lawyers. It does not mean law firms or lawyers will die. But market will find a balance.
The “public” doesn’t have a voice and our governments are more inclined to serve privileged interests than the public interest.
I have directly approached my elected members of parliament and the provincial legislature about access to justice issues. They aren’t interested and I’m not sure to what extent they even understand the issues. I am tempted in some cases to call them “functional illiterates” when it comes to understanding the law and our legal systems.
We cannot hope to see the growing scale and complexity of our laws matched by money drawn out of the public purse.
If I were attending law school, I too would be looking at government and other large corporate entities to provide me with the reward of a comfortable and relatively lucrative employment.
Blame law societies for the unaffordable legal services problem because: (1) everything they do in regard to the problem is aimed at helping the public get used to living with the problem, such as promoting “alternative legal services,” but nothing is done to try to solve the problem; and, (2) law societies do not sponsor the innovations necessary to make legal services affordable again.
If they were affordable, lawyers would be overwhelmed with work. It is a human-caused problem capable of a law society-caused solution.
The creation of CanLII and the mobility agreement are impressive accomplishments that show that they can solve the problem if they want to.
Instead, benchers put their personal needs to serve their practices first, and their duty to the public to make legal services adequately available, second. That is unacceptable—e.g., a breach of Ontario’s Law Society Act, s. 4.2. And, in might be “a breach of trust by a public officer”—s. 122 of the Criminal Code. Benchers come within the wide definition of a “public officer” provided by, R. v. Boulanger 2006 SCC 32.
Lawyers should be intensely pressuring their law societies to begin to learn how to solve the problem. Otherwise, go on continuing to be their law society’s willing victims.
We don’t need commercial investors owning law firms—the “ABS solution.” That is not a solution. The investors presenting such “alternative business structures,” want to capture the legal services market that is the easy stuff–the routine legal services. Their purpose is not to solve the problem—they are not in the social welfare business of solving such problems. They will force out professionalism and the fiduciary duty, in favour of commercialism and the profit duty.
The profession can do all that ABS investors can do for the practice of law, by itself. But that requires strong law society leadership instead of the “populist” style that is so deeply entrenched in law society history and culture—an early 19th century management structure in a 21st century world. Management by part-time amateurs cannot cope, and so, the problem is inevitable. So, change the structure of law society management, or abolish them.
Like every elected government, they need an agency that provides the “civil service function” of permanent, constantly developing expertise, that is duty-bound to be continuously vigilant as to public need. Create one such agency to serve all of Canada’s law societies. It is a national problem and all such difficult problems will be national problems.
Our law societies are like a worn out aristocracy that has outlived its worth and is trying to make amends for the great damage it is causing to society, the justice system, and to the profession, by handing out charity in the form of alternative legal services. Of course such services should be made available, but they shouldn’t be the law societies’ total answer to the problem. Like providing palliative care instead of trying to cure the disease.
And such law society neglect has increased the probability of wrongful convictions.
Law societies are inviting their own abolition. The power of the social media, the news media, the pressure groups, and political parties in opposition, provide the great power of communication that can very quickly create demands that law societies be replaced with agencies that are more responsive to the democratic process. Such accountability exists only in law, but not in fact.
Get rid of them, or change their management structure. Otherwise, go on suffering, and tell your families that you much prefer being a willing victim of law society intentional neglect of lawful duty.
See: Ken Chasse (pdfs.)
(1) “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem.” (SSRN, September, 2015).
At: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2647948
(2) “A2J: ‘Let Them Eat Cake,’ So, Let Them Use Alternative Legal Services” (Slaw, November 26, 2015).
At: http://www.slaw.ca/2015/11/26/a2j-let-them-eat-cake-so-let-them-use-alternative-legal-services/
(3) “No Votes in Justice Means More Wrongful Convictions,” (SSRN, June 10, 2016);
At: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2790625.
— Ken Chasse, member, LSUC & LSBC.
Those are some great numbers, Colin, but the messages that can be taken from them range much further than you have speculated, in my opinion. I won’t supply an essay, but will just observe that lawyer practice, the judiciary, and the law itself march something in lock-step. Sometimes it is not the actual line of data you’re looking at that tells you what you need to know, but its equivalent; its shadow, in the next silo over.
What is happening in the places where laws are made? What kinds of laws are being made? What kind of litigation does such law foster? That will be where the lawyers are going.
This is fascinating. Does the LSUC data indicate what licensees are doing more of now, if they are not working in law firms? I.e are they dropping out of law entirely, or is it more about moving in-house etc?
Noel:
LawPro has published useful information comparing the makeup of licensed lawyers over the last 20 years based on whether they are insured.
In 1995, 19,976 were engaged in private practice and 2,474 had exempt status. In 2014, 24,968 were engaged in private practice and 17,756 had exempt status.
By my calculation, the number of lawyers in private practice is closely correlated with population growth in Ontario. In other words, the number of private practice lawyers per capita is pretty constant.
The lawyers with exempt status i.e. exempt from the requirement for insurance) are mostly in employed by government or business as employed lawyers. While some may not need to be licensed, it seems obvious that most are doing legal work otherwise there would be no need to maintain licensing.
The overall picture is clear which is essential stability in the number of private practice lawyers with substantial increase in the numbers serving government and business in-house.
While there is likely some decrease in the number of private practice lawyers serving government and business from private practice since 2008, I doubt that is material to the broader picture.
Setting aside the matter of relative public access to private practice lawyers over different time periods (and the related question of whether that degree is enough, too much or just right to meet public need), the inescapable conclusion from Malcolm’s introduction to the conversation of the growth in the number of exempt lawyers in Ontario is that we should reexamine our notion of what a “typical” legal career looks like. If growth of in-house/govt/etc lawyers outstrips growth in private practice lawyers three-to-one, on which side of the line do we find the typical career?
in 2012 I took my law firm to a completely software, paperless and internet driven production process. Our “overhead” is now less than 40% of revenues. Still, it is difficult to make a decent income without seemingly countless hours of file work AND administration work. What this discussion points out is that the THINKING of lawyers, Law Societies, and Court Administrators is, for the most part, divorced from the economics of the practice of law as a business and consequently the affordability of needed legal services by the average Canadian.
Despite the television advertising, there is no “EASY BUTTON” in legal matters. Complicated problems take time and hard work to solve, regardless of their framework. The real tragedy is the failure to appreciate the very real and significant role an independent and viable bar plays in maintaining the finger in the dike to save our very thin veneer of freedom and democracy from the daily excesses of bureaucracies of every sort.