Column

Access to Justice and Market Failure

Lemonish Lawyers? [1]

The problem of access to justice is likely the result of a number of causes. Unnecessary complexity in substantive and procedural law is likely part of the problem. Our adversarial court-based administration of justice is problematic both where powerful actors have disputes with ordinary people and where family disputes require resolution. Ease of access to information through the internet may be both part of the solution and part of the problem.

Market regulation and access to justice

Our approach to legal services regulation plays a role as well. Limiting who can provide legal services restricts how legal services are provided and protects licensed lawyers and paralegals [2] from new forms of competition. Some problems cannot be economically addressed by spending the time of legal experts at costly hourly rates yet innovative new ways of providing legal services are prohibited.

Limiting legal service provision to licensed lawyers has always seemed to me to provide a logical explanation for the puzzling gap between legal services supply and demand. While there are substantial unmet legal needs, lawyers simply can’t survive if they drop their rates to the level that cost-effectively addresses most ordinary legal needs. Ordinary people won’t spend more to solve a problem than the problem is worth. Allowing new ways of obtaining legal services logically addresses this gap. Said another way, the market for legal services is constrained by limiting the supply side thereby causing unmet demand.

I make these points (none of which are new) as context for the balance of this column which suggests that there may other market failures present in the legal services market that impair access to justice. On this view, new ways of understanding and addressing problems of access to justice appear.

Information asymmetry and market failure

In the 1960s, economic theory evolved from its earlier focus “on figuring out the conditions that would allow markets to work perfectly” to a new focus on “what would happen when these conditions fail” [3]. One of the requirements for perfect markets is perfect information. Perfect market models assume that buyers and sellers are perfectly informed and accordingly can effectively see the value to them (“utility” to an economist) of goods and services that are bought and sold.

Of course, it is absurd to think that market participants are perfectly informed. Virtually inevitably, potential sellers know more about their wares than do potential buyers. George Akerlof was awarded the Nobel Prize in economics in 2001 for his research addressing the problems that arise in markets where sellers have material information that buyers do not (i.e. “asymmetric information”).

Akerlof’s research led to publication of his 1970 paper The Market for Lemons: Quality Uncertainty and the Market Mechanism [4]. As an example of a market with asymmetric information, Akerlof examined the used car market. Unlike the new car market where most all cars of a particular type have the same qualities, there are “lemons” and “peaches” in the used car market. Sellers know whether their cars are lemons. Most buyers have no ability to assess the quality of a used car. There is asymmetric information on a fundamental question on which value depends.

If “lemons” are worth $2,000 and “peaches” are worth $10,000, what happens in a market in which buyers can’t tell the difference? The answer is smart buyers won’t pay more than about $2,000 for any used car, buyers who only want a “peach” won’t buy at all and owners of “peaches” won’t be able to sell them for a reasonable price. Asymmetric information similarly can cause a downward quality spiral where producers see no point in providing “peach” quality service because purchasers can’t tell the difference and so will only pay “lemon” prices[5].

This problem of asymmetric information is part of the reason that cars depreciate so much when first purchased and driven off the lot and is part of the reason that “used car salesman” is a term of derision.

The labour market provides another example of market failure based on asymmetric information. Why is it that it is easier to find a job if you have a job and why does it get harder to find a job the longer that one is unemployed? The answer is that prospective employers don’t know whether the prospective employee is a lemon or a peach and rely on limited and often inaccurate information to avoid employing a lemon. Where an employer can’t effectively judge the quality of a prospective employee, employers assume that the currently employed are of higher quality than the unemployed and that the recently unemployed are of higher quality than the longer term unemployed.

But if asymmetric information leads to market failure, how did eBay come to be such a success? Buyers and sellers deal with each other virtually and at a distance. Information asymmetry is a particular problem where buyers and sellers don’t know each other and buyers can’t inspect the products being sold.

The answer appears to be that eBay took great care to provide market signals on which potential buyers could rely. One of eBay’s solutions is the establishment of an “Expert Community” where thousands of eBay members post advice on how to avoid buying a “lemon” or otherwise being taken advantage of. eBay encourages and organizes ratings of buyers and sellers so that confidence is enhanced by information from other market participants and so that taking advantage is deterred. As well, eBay has established one of the largest dispute resolution systems in the world. eBay has effectively reduced information asymmetry and has provided remedies that allow transactions to proceed despite a degree of information asymmetry.

On reading about information asymmetry and eBay in the recently released book The Inner Lives of Markets [6], I was struck by the question of information asymmetry in the practice of law. Clients would not need lawyers if they did not require expert assistance. By definition, unsophisticated clients have difficulty assessing the quality of their legal advisors and the quality of the legal assistance provided to them. Indeed, law is described as a “credence good”. Unlike a great (or lousy) dinner, it is difficult for consumers of legal services to assess the impact of legal services even after they have been provided. Also, unlike a used car, there is no sticker price nor even price negotiation prior to sale.

The market for legal services for ordinary people is fairly characterized as a market with asymmetric information as to the quality of the lawyer, the price of the services on offer and what is reasonably achievable as a result of proffered services. Ordinary consumers are at a very decided information disadvantage compared to the lawyers offering their services.

Professional self-regulation as a way of addressing market failure?

Keeping the problem of information asymmetry in mind, professional self-regulation can be thought of in a different way. Lawyers have ethical obligations of candour which require disclosure of information relevant to their retainer and disclosure of errors and omissions. The Law Society provides assurance of competence by requiring legal training and by testing prior to entry to practice. Further assurance of competence is provided by mandatory errors and omissions insurance and, it is thought, by mandatory continuing professional development. The Law Society provides assurance of proper conduct by establishing codes of professional conduct and by disciplining for professional misconduct.

It is interesting in this context to note that the definition of professional misconduct in Ontario is “conduct in a lawyer’s professional capacity that tends to bring discredit upon the legal profession”. It is also interesting how the discipline case law justifies license revocation in cases involving fraudulent or dishonest conduct. As the Divisional Court recently said in Bishop v. Law Society of Upper Canada, 2014 ONSC 5057 at para. 28:

… [There is a] pressing need to send a consistent message that engaging in fraudulent conduct by a lawyer is a matter that will not be tolerated because of its impact on the profession as a whole. As was observed by Sir Thomas Bingham M.R. in Bolton, at p. 519:

The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.

While we ordinarily think of professional self-regulation in terms of protection of clients and the administration of justice, it is quite plausible to see assurance as to candour, competence, quality of service and professional conduct as addressing information asymmetry. It signals to prospective clients that they can retain lawyers without fear that they are retaining a lemon lawyer.

In the same way, applying fiduciary law to the lawyer-client relationship can be seen as providing assurance in the face of information asymmetry and addressing the fact that law is a credence good. With this thought in mind, Justice Binnie’s statement in Strother [7] takes on new meaning:

… Monarch was dealing with professional advisors, not used car salesmen or pawnbrokers whom the public may expect to operate on the basis of “didn’t ask, didn’t tell”, and who collectively suffer a corresponding deficit in trust and confidence. Therein lies one of the differences between a profession and some businesses.

Perhaps the difference between a profession and some businesses is that professions organize their affairs more like eBay (and less like used car salesmen) by reducing information asymmetry by requiring candour and by providing effective remedies where candour is lacking!

To be clear, none of this is problematic. Providing assurances of candour, competence, quality and conduct does protect consumers and does allow clients to more safely retain licensees. But what is a new thought for me is that there is good self-interested reason for professions to provide these assurances because the alternative is reduced demand for professional services because consumers cannot easily differentiate between lemon and peach professionals.

The Access to Justice gap and market failure

As discussed at the outset, it is plausible that the access to justice gap is explicable in part by the choice to limit the provision of legal service to licensees and those directly supervised by licensees. If ordinary people don’t have sufficient information about the quality and cost of prospective lawyers, some will think it better simply to “lump it”, some will access other resources and some represent themselves.

It also plausible that the access to justice gap would be even worse if ordinary people did not have assurance of minimum competence, quality and conduct.

But it would be naïve to think that our minimum professional standards mean that there are no choices to be made between us. We know that is not true and that there are great, good and not-very-good licensed lawyers and paralegals. We know that prospective clients have limited ability to assess who is a good and who is a less good lawyer in general or for a particular problem. Clients have limited ability to assess whether they have received quality or substandard services.

What is interesting is the possibility that the access to justice gap may be, if only in part, explained by market failure arising from continuing information asymmetry despite minimum standards.

Said more simply, being a lemon is a relative thing [8]. While prospective clients have some assurance, prospective clients have limited ability to distinguish between lawyers. As a result, economic theory suggests that rational consumers are forced to assume that no lawyer is better than the minimum standard actually required. While perhaps not lemon standard, this standard is “lemonish”. Where a potential client is not able to sufficiently assess the quality of the professional or of the service provided, the amount that the potential client will be prepared to pay is limited or the potential client may not be willing to retain anyone at all”.

If this analysis is right then the answer may come from eBay. We should be considering how to provide better information and how to better address service problems.

The difficulty with this is that we professionals are conflicted. Where minimum professional standards are established, we all benefit because prospective clients see all of us in a better light. But where distinctions are drawn between us, some will be winners and some will be losers. And where distinctions are made based on imperfect information, some will be losers who ought not to be.

This reaction is seen in discussions about greater transparency in Law Society complaints and investigations. There is immediate unease when it is suggested that prospective clients have access to information about, for example, complaints rather than just about discipline proceedings.

There are other tools that might be considered. One is bringing an end to general practice by limited licensing, thereby requiring and signalling specific expertise.

In writing this column, I don’t claim to know what specific approaches make sense. But it does seem clear that information asymmetry is a “thing” and that it is particularly applicable in the legal services market and that market failure is a consequence of information asymmetry. It also seems clear that we should recognize that addressing information asymmetry through self-regulation will be challenging given the inherent competitive conflict within the professions.

If we are serious about the access to justice gap, we should accept that no one solution will slay the access dragon. Indeed, we have to accept that we cannot predict with confidence what solutions will be effective. But it is time to be creative and to actually attempt solutions.

And addressing the market for lemonish lawyers may be part of that. Better information may allow consumers to retain lawyers who otherwise would not.

And the added (and important) advantage would be that pressure to reduce quality to the lemonish levels would be reduced and those who provide higher quality would have a better prospect of being paid better prices where clients are preapred to pay for higher quality.
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[1] This column borrows heavily from Fisman and Sullivan: The Inner Lives of Markets: How people shape them and they shape us (2016 Pereus Books Group), https://www.amazon.ca/Inner-Lives-Markets-People-Shape/dp/1610394925

[2] I will refer to lawyers rather than lawyers and paralegals in the balance of this column for ease of reading. But the point is relevant for paralegals as much as for lawyers and perhaps more.

[3] Fisman and Sullivan supra., Chapter 3

[4] Quarterly Journal of Economics, 1970

[5] My thanks to Noel Semple for editing a draft of this column and pointing out the downward-spiral problem which seems highly relevant in some areas of the legal services market.

[6] Fisman and Sullivan supra., Chapter 3

[7] Strother v. 3464920 Canada Inc., [2007] 2 SCR 177 at para. 42

[8] Thanks again to Noel Semple for pointed out the following reference which notes that professional regulation ordinarily sees quality in yes/no terms. Ordinary licensing does not permit consumers to differentiate between licensees.

Michael J. Trebilcock, Carolyn J. Tuohy and Alan D. Wolfson, Professional regulation : a staff study of accountancy, architecture, engineering and law in Ontario prepared for the Professional Organization Committee (Toronto: Ministry of the Attorney General, 1979) at pages 78-9: “all standard-setting mechanisms, including licensing, necessarily proceed on the assumption that quality is a discontinuous attribute. A licensing regime assumes that either one satisfies the required licensing conditions and provides a corresponding quality of service, or one does not meet the standards and is not permitted to provide any lesser quality of service on any terms.

Comments

  1. Interesting piece.

    What if lawyers generally, not merely those within the exception allowing summary advice by e.g. duty counsel and from law clinics, were allowed to provide summary advice? With a prominent warning required, but still summary advice? Would this help with access to justice and allow more lawyers to provide help in simple matters?

    Limited scope retainers help, but is the future one in which non-lawyer providers are allowed to provide lemon-quality service to clients if that’s all they can afford, but not lawyers who must meet a higher threshold?

    To continue the analogy, some buyers only want to spend $2K on a lemon, because a bad car still meets their limited needs, e.g. a short period of hard use of a vehicle. Some buyers on ebay are happy to buy something “as is” or with known disclosed defects.

    http://www.ebay.com/gds/Sold-As-Is-A-Guide-to-Selling-Imperfect-Items-/10000000002127337/g.html

    But the protection of requiring all lawyers to perform to a minimum competent standard, while of course usually a good thing, leads to access problems when someone with a lemon-sized $2K (small claims? parking ticket?) problem wants lemon-quality advice, because it’s better than nothing, but the requirement of competence even in a limited scope retainer means no lawyer or paralegal can afford to help them. Why not allow for summary advice (which in a sense is still competent, but far simpler than limited scope)?

  2. Gordon Turriff, Q.C.

    Indeed, being a lemon is a relative thing. But regulators have the power to raise standards so that, over time, today’s lemons are yesterday’s peaches and today’s peaches are, to mix fruits, an improved varietal.

  3. This is an excellent post. I agree with the suggestions 1) that no single thing will “solve” access to justice problems, 2) that increasing the legal profession’s tolerance for experimentation is necessary, and 3) that information asymmetry seems part of A2J problems.

    Drilling into the information asymmetry piece, it might be helpful to think about what a “lemon” is for different types of personal legal services, and for different clients. For example, a lemon Will might be something that fails to do what the testator wanted, and will only become known after the testator’s death. In litigation, is a lemon a loss, at least for some clients? In a summary advice context, lemon legal services might mean failing to understand the client’s actual legal problem. Understanding how clients think of unsatisfactory legal services in different contexts may point to ways of addressing different asymmetry problems.

    All of this also points to the importance of looking outside the legal profession for help in trying to address access to justice problems. While there are some who have a foot in both the legal profession and another discipline (e.g. Gillian Hadfield – law and economics), they are relatively few. It would certainly be helpful for those within the legal profession interested in access to justice to build more bridges to other fields.

  4. “Therein lies one of the differences between a profession and some businesses.” This one sentence made me look at the definition of “profession” in the Oxford dictionary. Funny thing – there was the term “learned” profession. Among the learned professions are law, divinity and medicine. The definition of profession also mentioned “vocation” – a calling, even a divine calling which most would equate with at least two of the “learned” professions. However getting to the point of this ramble is the idea that all three learned professions require the clients, followers or patients to “trust” the learned professionals.

    The issue of access to justice gap is not only about affordability. Using the asymmetry of information diagnosis it seems affirms that there is also a violation of trust. Clients, followers and patients place their trust in the learned professions that those professionals would not violate or harm their best interest. I would assume that affordability is also part of that trust. “Ordinary” people want to be able to trust that the law societies will ensure that the professionals they regulate are not only of the best quality in skill but also in character. Making lawyers affordable could do much to further that idea of trust.

  5. I’m sorry that I have to say that I find this discussion about “asymmetry” to be pure sophistry.

    But I’ll offer peripherally something I’d like to see done and that could be done easily.

    I’d like to see every practicing lawyer required to publicly divulge what they charge per hour. The law societies could move to make that a requirement.

    That was one of the questions I asked back in the days when I thought there was some possibility that I might find a lawyer to assist me with my legal issue(s). It struck me as strange how reluctant the lawyers I spoke to were to share that information with me.

    Are there any rules at all about what rates lawyers can quote? Or can they quote whatever they feel like quoting to any prospect, on any day, at any hour?

  6. Seeing this as a market problem requires slightly more breakdown of what legal services actually are. Characterizing legal services as a single product overlooks the degree to which the legal system is a complex of separate organizations that are each other’s internal customers* doing transactions that are not the domain of the retail customer. Supply-chain and network dynamics are in play. However, systems thinking about the whole network, in this part of the problem-solving exercise, misleads the analyst. The external customer is not purchasing the whole system. It is necessary to appreciate what the product actually is in each transaction, and whether, in fact, the information advantage lies in each case with the seller.

    But all that said, law is not a service system; it is an authority. As such, the relevant “profession” is the judiciary, not lawyers – but the judiciary is not a profession because it cannot be held liable for its work. For that matter, lawyers can’t either, because litigation is competitive.

    I think lawyers face the same problem trying to discuss access to justice that early earthlings faced trying to discuss the universe. Until they could get their heads around the fact that the universe did not revolve around earth, no progress could be made.

    *I was reading the speeches of Lord Erskine the other day, or rather his bio, especially the part where he gave his first speech to the magistrates, after which “all the solicitors swarmed him begging him to take their briefs.” (quoted from memory). When I read that it struck me that the general category of “lawyer” that we use in Canada may disguise the issue of internal customers, and make for a muddier conversation than other nations might enjoy.

    A few more possibly useful comments on my blog: http://ctjester.blogspot.ca/2016/11/a-brief-primer-on-access-to-justice.html

  7. This is thorough analysis and a great discussion.

    I think you have effectively drawn-out a core limitation of the information that is available to consumers of legal services. That is, the most credible and easily understood standards against which the public can evaluate a lawyer’s competence is essentially binary: licensed or not licensed. In today’s world — where nearly every business can be researched online to determine its average score on a “five-star scale” — consumers are not likely to be satisfied or comforted with a binary rating system.

    Something more is needed. However, as you suggest, the notion of “Yelp for Lawyers” is fraught with difficulties for lawyers, the public and regulators. Because the profession is seemingly comfortable with binary distinctions, an expansion of such distinctions may be a viable path forward. If law societies expanded the use and reliance on formal and accredited areas of practice expertise, the public could get a much more objective view of exactly “who” they are hiring. Such accreditations need not be reserved for the utmost experts in those fields; but rather those meeting a satisfactory level of competence; that is, “not-lemons”.

    This could lead to another logical, albeit bolder, step forward. Law societies could provide binary approval/licensing/sanction of alternate legal service offerings that are emerging from in the “New Law” landscape. The availability of such a blessing from regulators, which could be a strong market signal of credibility, could motivate our entrepreneurs and encourage innovation while providing further safeguards for the public.

  8. I agree this is great analysis and a great topic.
    In response to David’s comment, as much as
    I like the idea of quantizing lemoniness, just an
    anecdotal point from my earliest experience trying
    to find a lawyer: What I did was search canlii for
    (what I thought were) similar cases, and contacted
    those counsel, thinking they having the experience
    would give the best value. My experience was
    just the opposite; highly experienced lawyers seemed
    to be disclaiming any expertise. I suspect there is law society
    policy responsible for this.
    And I think the insurance industry is eating the lawyers lunches as a result.
    There was an article from last year that I will have to dig up
    about business transaction insurance – essentially inverting
    what the legal profession is doing. Not sure how it works exactly
    but basically selling the insurance policy and
    keeping the legal analysis in the background and not something
    the customer/insured/client need concern themselves with too much.
    This is much more attractive from a clients perspective especially
    given the recent SCC case affirming that insurance contracts are
    subject to all the familiar contract interpretation principals whereas
    retainer agreements are subject to mysterious “penumbral duties” (Strother 2009 SCC),
    which adds zero value (or less) to the clients perception of retainer.
    Something lawyers (and the reps who seek election) might keep in mind when voting time comes around.

  9. Mr Turriff,
    I take it that you think that the power to raised standards has not been
    exercised ?
    If so, how might the power to raise standards be exercised?

    One problem I see is that standards are vector in nature, not scalar (this
    is mathematical terminolgy), i.e. standards are more like a shopping list than a temperature
    reading in terms of the character of information (i.e. the standard).

    I know that the Saskatchewan law society has endorsed certain court decision which
    express a standard (and implicitly deprecating those not mentioned), which
    in my totally amateur opinion is a good way to do it.

  10. Obfuscation of law society responsibility for affordability as the cause of the unaffordable legal services problem? There is no proof that the problem has, “a number of causes.” It has one very well established cause—legal advice services are too expensive for the majority of the population. Law societies are to blame for that. They have failed to perform their duty to sponsor the innovations that would maintain legal services as affordable. They have sponsored no analysis of what other professions and producers of services have done to solve the same problem. The necessary solution is exemplified everywhere and plain to see, except in the legal profession;
    Consider: no doctor’s office provides all treatments and remedies for all patients the way a lawyer’s office does for all clients. The reason is that innovation in the delivery of medical services never stops. But in the legal profession it never started. Law societies are to blame for that.
    See: “Access to Justice—Unaffordable Legal Services’ Concepts and Solution” (pdf.); at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627.
    For a summary, see Slaw, August 9, 2016, at: . http://www.slaw.ca/2016/08/09/a2j-unaffordable-legal-services-concepts-and-solutions/
    We must change law societies’ management structure substantially, or get rid of them, or go on serving out the rest of our careers in a very seriously depressed profession—a profession that is rapidly losing its size, power, purpose, and prestige to, inter alia, the commercial world of LegalX and LegalZoom, and to law society-sponsored “alternative legal services,” which are charity instead of affordable lawyers provided in exchange for that majority’s paying for the justice system whereat benchers earn a very good living. And doing so at a time when people have never needed lawyers more. If legal services were affordable lawyers would be overwhelmed with work, and have a very bright economic future.
    This paragraph in particular of Malcolm Mercer’s article obscures the law society’s great negligence in failing to try to solve the problem, “If we are serious about the access to justice gap, we should accept that no one solution will slay the access dragon. Indeed, we have to accept that we cannot predict with confidence what solutions will be effective. But it is time to be creative and to actually attempt solutions.”
    To the contrary-many years ago law societies were overdue in attempting solutions. Only by trial-and-error learning can it be determined whether the problem has many causes or one cause. However, it is clear now that it has only one cause. All of the authoritative literature on the problem says so.
    But now there is no law society program whose purpose is to try to solve the problem–a problem that has been developing for decades, and obviously so to law society convocations during most of those decades. When I became a lawyer in March, 1966, legal services were then considered to be very expensive. And, there is no law society public declaration stating, “this problem is our problem, and it is our duty in law to solve this problem.” See for example, section 4.2 of Ontario’s Law Society Act.
    And there is no attempt by Canada’s law societies to pool their resources, and retain the necessary expertise with which to develop a strategy by which to end this national problem. This is the most damaging problem concerning the availability of legal services in the history of this country, and therefore it is very threatening to the continued existence of law societies. The social media, and then the news media, then pressure groups, and the opposition political parties will be saying so.
    Corroboration: benchers writing articles like this one that are full of purely speculative words of uncertainty such as, “is likely,” “there may be,” “appears to be,” “perhaps,” and, “it is plausible that,” and that divert attention away from the well established cause of the problem—AFFORDABILITY!

  11. Effective problem solving relies, always, on accurate problem identification. That has not yet occurred in law around any facet of the access to justice problem, as far as I can tell.

    The affordability thesis has two fundamental flaws: one, it ignores the fact that if a service is high-priced but still enjoys sufficient patronage, affordability is not in fact a problem, especially not for the service providers. Second, it misses the second bottleneck: court capacity.

    The access to justice dialogue is built around the assumption that people are self-representing because they cannot afford lawyers. This view completely overlooks the alternate view, which is that self-representation has brought in a flood of new litigants who would not be litigating if they could not self-represent. And if all these people had lawyers, they would completely overwhelm the capacity of the courts.

    SRLs are so firmly regarded as a waste of court time that no one has thought, as far as I know, to actually check whether they use more or less court time per matter than litigants with lawyers. I suspect they use less. The courts and opposing lawyers, ruing SRLs as they do, often make short work of them. And SRLs do not know the opportunities for time-wasting that labyrinthine court processes offer; interlocutory applications and the like. The whole reason these labyrinthine processes evolved is that they are not, if you examine the economics, time-wasters, but rather revenue-generators. OF COURSE you’re making good law while you do it, but they ramp up billable time and increase the stature of the courts; what’s not to like for either lawyers or judges? Only litigants for whom time is a cost, rather than a source of income, would use those opportunities scarcely or not at all.

    Everyone in law would deny that money is a motivator, but behaviour in the legal system is no different from behaviour in other systems. Behaviour is always affected by the structure of incentives, and money is an incentive. No more, no less.

    Finally, I sincerely wish, and I suspect any doctor who read this blog would too, that people who do not have the remotest comprehension of medical practice would refrain from using it as a model. The most common variant is, “Well, you can’t operate on yourself, can you? HAH!” as if this were some kind of closer. To do useful comparative analysis requires an understanding of both models – a bit like citing a precedent in court, actually (and I DO understand how that is done).

    The fact is that neither a lawyer’s office nor a doctor’s office provides “all treatments and remedies.” There are in fact far more similarities than differences between the two types of practice, including the division of practice into specialties, the use of specialized support personnel, the use of a publicly funded facility (hospitals/courts) for the provision of some work, and the need for a library service and a research/scholarly function to support the knowledge base, where incoming practitioners are also taught. There are a couple of signal differences, however. One that is relevant to any comparative discussion of professional self-regulation is the nature of liability for the cost and outcome of practitioners’ work.

    Another is the fact that a lot of lawyers’ clients are also, like the lawyer, on paid time. No medical patient is in that position (there are some qualifiers to this, but the fundamental point stands).

    Again, my comment up-thread links to my blog, for more comprehensive comments.

  12. >>Effective problem solving relies, always, on accurate problem identification. That has not yet occurred in law around any facet of the access to justice problem, as far as I can tell.<<

    Please get off your high horse. The core of the problem was known back in the last millennium even when nobody (considered to be worth listening to: another problem we need not get into) complained. It was the lack of money (for whatever reason) to adequately fund access to justice under the current method by which access is provided. Nothing has changed since then except the resources available have dwindled.

    If you want to start on solution, something like the U.S. public defender system but across the breadth of the public-legal system interface is the only viable solution. Good luck figuring out how to fund that one in today's reality. A start? Look up something like the US Peace Corp. Call it the Legal Corp. Consider something like the military reservists system used by states such as Israel and the US. Conscript – i.e. – make it compulsory for lawyers who want to practice in a jurisdiction to spend, say, one contiguous year in their first five years of practice in that jurisdiction working as lawyers for the Legal Corp. Lawyers called in multiple jurisdictions in Canada could chose which jurisdiction to work in. Have each lawyer called up as a reservist on the average of 3 weeks a year. Provide the entire funding from the federal / provincial tax base, not by tithing individual lawyers / law firms. Sounds like a draft, right.

    Good luck on (1) getting legislation through to create this that's constitutional and (2) in today's reality getting the profession to agree.

    You'll have more chance of another virgin birth, but this time to a man.

    And, no, it is correct, at a high level of abstraction (oddly enough, the one that matters for the purpose of this discussion), to use the medical profession / law profession level. In the sense we are talking about, they are both systems one has to learn. It's just much more obvious that the medical system is not quite as accessible to do-it-yourself solutions (where the disease is serious: that's when children die, right?) than law.

    And, yes, I too know something about medical practice, even at the GP level, even though I have never been a GP, so let's put the willies away and leave that shtick to Donald Trump.

    Most SRLs are right. They could master the requirements of the legal system applicable to them, in the particular case, if they had the time and resources (and weren't driven by odd ideologies such as, for example, the belief in the rule of law. OK, their are some whose idea of "law" would be strange even on Bizzaro's planet, but you got my point, I trust.)

    DC

  13. Ken – good luck getting enough anybody’s to listen. It wasn’t possible back when we were in law school. The situation has got worse since.

    Regards,

    David

  14. So short of the Legal Corp., there’s really nothing to be done?

    There are countless ways in which the institutions and protocols could be improved without incurring more than a trivial cost. Why are we seeing absolutely nothing done?

    No discussion is advanced by dismissing “the rule of law” as an “odd ideology”. Perhaps former Law Society of B.C. president Gordon Turriff, who posted here earlier, would like to explain why.

    Or we can just read his definitive statement in what he described as a “pamphlet”:

    http://www.stikeman.com/2011/en/pdf/Why-We-Need-Independent-Lawyers.pdf

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