I’ve posted this article on the SSRN: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions,” for download (pdf). It provides a solution to the unaffordable legal services problem in Canada (“the problem”), so as to: (1) maintain law society management structures as they are; (2) fulfilling their duties in law to make legal services adequately available; and thus, (3) law societies can avoid being abolished. What is needed is to convert the way the work is done to provide legal services from a handcraftman’s method to a support services method. There are parts of the work done for all legal services that can be more cost-efficiently done, and equally competently done by a highly specialized support service, particularly so legal research.
No doctor’s office provides all treatments and remedies for all patients the way a lawyer’s office does for all clients. The whole of the medical services infrastructure is made up of highly specialized, high volume, mutually interdependent support services. There are no “generalists.” Even the family doctor is a type of specialist. The innovation to bring about the highest degree of competence and the greatest economies of scale never stops. In the legal profession it never started because the pressure necessary for such innovation has never started.
In law firms, the degree of specialization of all factors of production and volume of legal services produced are insufficient to make legal services affordable to middle income and poorer people—particularly so legal advice services. They are the source of the problem; not routine legal services. Such people are the majority of the population that cannot afford legal services. They pay for the justice system where lawyers work to earn, on average, a much better income than they do.
The unaffordable legal services problem is not a legal problem. Law society benchers do not have the expertise necessary to solve the problem. Needed is a permanent civil service-type institute of continuously developing expertise with which to advise all law societies in Canada as to the many ways that costs can be cut so as to make legal services affordable while competence is maintained. Government cabinet ministers, like benchers, are amateurs too in regard to their problems of management. But they have a civil service to advise them; benchers don’t. Without such an advisory institute, dedicated to constant surveillance of, and response to public need, problems such as unaffordable legal services will never be solved. And they will continue to inflict major damage and misery upon society until law societies are replaced with agencies that are more responsive to public need and the democratic process.
But it is a human-caused problem capable of a law society-caused solution. CanLII and the national mobility agreement are impressive accomplishments that show that they can do it. CanLII can finance such an advisory institute to advise all law societies as to the many ways that costs can be cut so as to make legal services affordable while competence is maintained.
CanLII could provide to a national market at cost (plus a profit to finance the advisory institute), the legal opinion and related legal research services that LAO LAW at Legal Aid Ontario provides to lawyers in private practice who do legal aid cases. (But I’m referring to LAO LAW as I created it and not as it is now.)[i] Its legal research service would be staffed by career legal research lawyers using the technology of centralized legal research, first developed at LAO LAW. It provides a far higher degree of competence and economies of scale than that of any law firm. It has 37 years of experience, success, and popularity. It is a proven technology with no competitors. And neither would CanLII have competitors.
Every factor of production is highly specialized and re-use of previously created work-product is maximized so as to maximize the economies of scale that large-scale production volumes produce. The support services method provides the highest degree of competence with the greatest cost efficiency. Therefore it is used everywhere except in the legal profession, and in the creation of great works of art, whereat affordability has little relevance. Therefore the profession lacks the competence to provide legal advice affordably to the majority of the population.
In addition to legal research, there are many other specialized support services that can be provided with such expert advice, including the automation of routine legal services at a lower cost than can the investor-owners of law firms (the ABS alternative), and advising on marketing strategies and methods of maximizing income and client services and satisfaction. That is what law societies lack—the expertise to deal with problems as serious as unaffordable legal services. They are not legal problems. That is one of the reasons why law societies and access to justice committees fail. They are made up of nothing but lawyers.
The benchers—the lawyer-managers of Canada’s law societies—fail to bring about the innovations that will enable law societies to fulfill their purpose and perform their duties as imposed by law. They don’t try to solve the problem, but merely promote those programs and services that will help the population learn to live with the problem—like providing palliative care instead of trying to cure the disease.
That is a declaration that the majority of the people in Canada who cannot afford legal services had better get used to dealing with their legal problems without lawyers. And it is a confession of an inability to deal with the problem, and an acceptance of the present cost of legal services as a fact that will not be changed, i.e., services by lawyers having a fiduciary duty to do all of the work arising from a client’s problems, and do it affordably, are gone.
People want “their own lawyer” and not “alternative legal services.” Such services are based upon a strategy of “cutting costs by cutting competence”—the competence of the person who provides the service. But the successful strategy is the opposite—increase competence by higher degrees of specialization, and volume of production, so as maximize the economies of scale that maintain a product or service as affordable. Their faulty choice of strategy means that Canada’s law societies have no answer to these accusations of the angry taxpayer and self-represented litigant:
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 “alternative legal services” 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 sincere and honest, 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. Would you send your close relatives to “alternative legal services”? Of course not; that’s not good enough for them, but it’s good enough for us—yes us, the majority of the population who cannot afford legal services. Why should I give my respect and tax money to your justice system?
Without an advisory institute to advise and carry out benchers’ choices, it is not possible to be both a good bencher and a good lawyer. Because of that conflict, benchers do the easy things such as promoting alternative legal services, but not the hard things such as carrying out the difficult trial-and-error work necessary to solving the problem but will leave them short of time to serve their clients and employers.
Innovation is happening. But it is the innovation of: (1) alternative legal services that cut costs by cutting the competence of the people who deliver the legal services; (2) the commercialization and industrial production of legal services (such as, LegalX, LegalZoom, LegalZoom (Canada), Axiom, and, Neota Logic); and, (3) of ownership of law firms by investors referred to as, “alternative business structures.” It is innovation that will speed the reduction of the per capita number of lawyers in the private practice of law; see: Colin Lachance, “Law’s Reverse Musical Chair Challenge” (Slaw, June 16, 2016). Because of a lack of law society leadership, lawyers have priced themselves beyond the majority of the population. The resulting vacuum is being filled in ways that work against lawyers.
Law society efforts and access to justice committees have been in effect for several years now, but the victims of unaffordable legal services continue to grow in size and number. The coming problems, like the present problem, will require types of expertise that lawyers’ committees and law society convocations do not have. That is why they fail. The most serious problems will be national, requiring all law societies to work together if there are to be solutions. There has been no such national effort to solve the national unaffordable legal services problem, and no progress towards a solution.
The consequences of not learning how to solve the problem are very destructive consequences to: (1) the population; (2) the courts and the justice system; and, (3) the legal profession. The continuing growth of that destruction, combined with the great power of communication provided by the social media, the news media, the pressure groups, and opposition political parties, will not allow matters to remain as they are. Governments will have to intervene. But law societies have no answer—no program whose purpose is to solve the problem.
Because of the increasing volume and complexity of laws, people cannot deal with their legal problems by themselves. If legal services were affordable, no law firm would be short of clients. Instead, providing nothing more than alternative legal services is to ignore that volume and complexity by responding with methods of comparative incompetence and simplicity. The law and the population’s need for help to use it effectively are moving in one direction, but those who manage our law societies are moving in opposite direction. If law societies won’t accept that their duty in law to make legal services adequately available, includes making them affordable and provided by a client’s “own lawyer,” the abolition of law societies best follows.
Read the article first, before commenting. It contains many references to the reports, case law, and other materials on these subjects. A blog article has to be short. For such complex problems, it cannot provide adequate persuasiveness for what is written above.
[i] I’m referring to what the technology of centralized legal research is capable of producing as I devised it during my years at LAO LAW (1979-1988). By 1988, my staff was producing legal opinions at the rate of 5,000 per year for lawyers in private practice who did legal aid cases. LAO LAW is a somewhat different organization now.