Column

“Counsel, I Demand Justice!” – “Most Definitely! How Much ‘Justice’ Can You Afford?”

Might that majority of society who cannot afford a lawyer’s advice (“the problem”) soon use the social media to demand the abolition of law societies? Indeed; “off with their heads!” Quite fitting for a law society, created during the last years of the French Revolution, which had so taxed the heads of Louis XVI and Marie Antoinette but a few years before. Ontario’s Law Society of Upper Canada (LSUC) was created on July 17, 1797, in Wilson’s Hotel, at Niagara-on-the-Lake, Ontario, by 10 of the 15 lawyers in the then British colony of Upper Canada. (See: Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (University of Toronto Press, 1997).

More likely the commercial production of legal services by such as, LegalZoom,[i] RocketLawyer, and LegalX, will provide a safety valve to relieve the potentially fatal public and political pressure upon law societies that the social media could generate. Albeit, they will provide law societies but a temporary respite before abolition by the former, or emasculation by the latter. Emphasizing “affordability” by achieving cost-efficiency’s greatest heights, and maximizing the use of automation in all of its fast progress to greater sophistication, their “fastfood”-like production and marketing will move them quickly from the provision of routine legal services to legal advice. Thus they can replace the general practitioner just as automation and mass production have done away with the shoemaker’s shop. As a result, they will use their employee lawyers in a much greater production of legal advice than can general practitioners, because law societies have long failed to provide the support services that would keep them competitive and the most populous kind of lawyers-the lawyers who determine the profession’s reputation for the majority of society.

For corroboration of the inevitability of all professions being substantially changed, if not eliminated, see: Richard and Daniel Susskind, The Future of the Professions—How Technology will Transform the Work of Human Experts (Oxford University Press, 2015). At page 66 they state: “In Tomorrow’s Lawyers [Oxford University Press, 2013], we predict that the legal world will change ‘more radically over the next two decades’ than ‘over the last two centuries’ [p. xiii].” And at page 71 they state:

Looking to the longer term, then, the future of legal services is unlikely to look like John Grisham or Rumpole of the [Old] Bailey. More probably, our research suggests that traditional lawyers will in large part be “replaced by advanced systems, or by less costly workers supported by technology or standard processes, or by lay people armed with online self-help tools”.

[The quoted words being from, Richard Susskind, The End of Lawyers? (Oxford University Press, 2008), page 2]

In Canada, the prohibition against lawyers being employed to provide services to the customers of their employers[ii] can be overcome by a Canadian Charter of Rights and Freedoms “public freedom for access to the courts” argument based upon s. 2(b)’s, “freedom of opinion and expression”; see: Re Southam Inc. and The Queen (No. 1), 1983 CanLII 1707 (ONCA), 41 O.R. (2d) 113; plus an extended use of, Endean v. British Columbia, 2016 SCC 42. Such would be aided by the equality rights argument as to, “equal protection and equal benefit of the law,” that law societies’ refusal to try to solve the problem has created a permanent class much disadvantaged of legal services and equality. As a result, for that majority, Canada’s claim to be a constitutional democracy is but an illusion and a pretence. To use the wording of the essential s. 15 test: being middle class, or of “middle income,” and unable to obtain a lawyer’s advice at a reasonable cost 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. However, s. 15 equality rights are limited to grounds of discrimination analogous to the grounds enumerated in s. 15(1). However, it is time to free s. 15 from that now unneeded restriction of Parliamentary intent.

So, whether by way of just demands for their abolition, or commercially engendered shrinkage of lawyer numbers, law societies are fated to be greatly reduced in purpose, power, and prestige, by reason of management by part-time amateurs (i.e., 19th century benchers unable to cope with the “access to justice” problems (“A2J problems”) of a 21st century law society).

And so imagine, during your career in our greatly financially depressed profession, relief by way of:

(1) the Law Society of Upper Canada (LSUC) being replaced by, The Law Society of Ontario, being a permanent agency, made much more responsive to the political process and therefore to public need; and,

(2) LSUC’s Osgoode Hall headquarters in downtown Toronto (since 1832), becoming a museum so as to maintain the memory of the historical anomaly of a 19th century-type law society in the 21st century; Osgoode Hall being a beautiful example of early 19th century architecture.

The first would be carried out in recognition of the fact that half of the people living in Toronto, and in the Greater Toronto Area, were not born in Canada, and therefore to most of whom the name, “The Law Society of Upper Canada,” most definitely must mean a law society for lawyers whose offices are up above the 60th parallel of north latitude where Canada’s three territories are.

Law society promotion of “alternative legal services,” (ALSs) such as legal clinics and public legal information etc.,[iii] does no more than help people learn to live with the problem, instead of law societies solving the problem. ALSs, (with the commendable but tiny exceptions of pro bono for small and short cases, and perhaps targeted legal services), do not provide a traditional solicitor-client relationship, involving a fiduciary duty that requires a lawyer to act in the best interests of the client, backed-up by a law society complaints department and every lawyer’s mandatory professional insurance. In comparison, LegalZoom, etc., provide merely a buyer-seller relationship, which provides no duty, one to the other except for honesty and legality. And, ALSs are charity, and therefore a great insult to that majority of taxpayers who cannot afford a lawyer’s advice but must pay for the justice system whereat all lawyers, directly or indirectly, earn a better living than do those taxpayers. See this article in the Lawyerist.com (November 14, 2016): “I Don’t Want a Free Lawyer, I Want a Real Lawyer.” That title succinctly states the insult.

Promoting ALSs is comparatively easy for Canada’s law society, elected lawyer-managers (“benchers”), to do and coincidently be practicing lawyers. But trying to solve the problem is much more difficult because benchers would have to carry out such projects themselves, by providing very detailed and dedicated “hands-on management.” That would involve, an unknown amount of time, trial-and-error learning, and therefore a risk of failure, particularly so during such project’s early years. In contrast, the work to provide ALSs is done by others. Benchers merely have to encourage lawyers and law students to provide the work, and staff the “Action Committees” and, “Access to Justice Committees” (every law society in Canada has at least one; but none has made any progress to the problem’s solution). The time needed for such bencher-promotion is quite predictable, controllable, and carries no risk of failure attributable to benchers. The appearance of failure is inconsistent with a “populist” style of leadership—the kind of leadership produced by bencher elections that are merely popularity contests without debate or substantive analysis of issues such as the cause and consequences of the access to justice problem.

Law societies’ current 19th century management structures and managers lack the time and expertise necessary for solving the problem. And because there is no understanding of its cause, there is no government pressure, or pressure from the legal profession to do otherwise, even though both government and profession are among its victims—the problem makes governments’ funding legal aid adequately, let alone better, politically very unwise. So, benchers don’t try to solve the problem. Instead, they favour with first priority the place where they earn their living, without trying to resolve the conflict of interest inherent in being both a good practicing lawyer and bencher. So it is that benchers are part-time amateurs, being as they are without the necessary expertise.

The problem’s necessary solution exists everywhere, i.e., moving from a handcraftsman’s-cottage industry method of producing legal services, to a support services method. It is the method used everywhere because the necessary pressure that makes such innovation necessary exists almost everywhere in the production of goods and services. But not in the legal profession. The root cause is the absence of innovation in law society management structure. It lacks a national civil service-type institute that would provide the necessary expertise to all of Canada’s law societies for all legal services problems. Equally badly needed is accountability to the political process that provides the necessary pressure to innovate. Accountability in fact, and not merely in law.

CanLII can be upgraded to fund the institute by providing legal research and opinion services at cost. Lawyers will choose to use the resulting support services because they will help them make money and serve their clients better. Highly specialized, high production volume, support services have a far greater cost-efficiency and specialization of every factor of production than is possible within any law firm. “Nothing is as effective at cutting costs as scaling-up the volume of production.” That’s why there is a huge “parts industry,” made up of many special parts companies, serving the automobile manufacturers. And that’s why no doctor’s office provides all treatments and remedies for all patients the way a lawyer’s office does for all clients. My knowledge comes from having solved a smaller version of the very same problem. See: “Access to Justice – Unaffordable Legal Services’ Concepts and Solutions.”

But “the bencher” as presently functioning, is completely incompatible with bringing about the necessary support services solution. Upgrading CanLII, and setting up the advisory institute, and the support services, require a project of long-term development before they can become operative. Benchers, like elected governments, think only as far ahead as the next election. That’s why a civil service is needed for projects requiring long-term development, which is what the most important government programs and services require. The time needed for such development is uncertain, and trial-and-error learning is required, as is accepting the risk of failure—the cost of learning is repeated failure. Those conditions are completely incompatible with what benchers expect to be, and do, and endure. Those are the reasons why 19th century law societies cannot perform adequately in a 21st century world. They cannot “live up to the law” that gives them legal status and defines their duties.

But that can be changed. Stop tolerating law societies’ treatment of the problem as though it were due to uncontrollable forces like the weather, or an unavoidable economic downturn. It is a law society-caused problem capable of a law society-caused solution. A law society that won’t try to solve the problem has no justification to exist. So, pressure your law society, or continue to be one of its many passively and massively suffering categories of victims.

Only law societies have the power and duty in law to make legal services affordable, as is required for example, by Ontario’s Law Society Act, particularly s. 4.2. Also, it is not proper for law societies to use their monopoly over the licensing of lawyers so as to protect lawyers from the economic “ups and downs” that the rest of the population must endure, i.e., responding to the mistaken claim that the problem is caused by, “too many lawyers chasing too few clients.” By doing so, law societies cause the legal profession to appear to be saying to that majority that cannot afford legal services: “we are not going to change our methods to make legal services more affordable. If you cannot afford our services, sell your house, or take on another mortgage, or go beg a loan somewhere.”

And governments aggravate the damage and misery law societies cause by not providing sufficient resources to the justice system. Together, law societies and governments undermine the constitution’s guarantees as to the “rule of law” and “access to justice”; see: (1) “No Votes in Justice Means More Wrongful Convictions” (pdf.); and, (2) Janice Gross Stein, The Cult of Efficiency (House of Anansi Press Ltd., 2001), deals with the practice of using claims of action for “greater efficiency” to underfund government facilities so as to carry out undisclosed political agendas. Simplifying procedures in the justice system saves money but it also removes safeguards and reduces competence, and therefore, the probability of doing justice. Government financing should afford a high probability of “doing justice.”

Last August, the Senate’s Standing Committee on Legal and Constitutional Affairs released its report, “Delaying Justice Is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada” (pdf.), concerning Canada’s criminal justice system. Unrepresented litigants take up much more court time and resources per case than litigants who have lawyers. Might governments and law societies soon be blaming each other for court delays? The Committee’s final report is due, “no later than March 31, 2017” (p. 19). Who will it blame, and for what? See: “Delaying Justice Is Denying Justice—a Senate Committee Report (Slaw, November 7, 2016).

And so, how much ‘justice’ does private practice still afford the private practicing lawyer to provide middle-income and poorer people, and those people who earn too much to qualify for legal aid? In Ontario that income level is well below the “poverty line”; see: R. v. Moodie, 2016 ONSC 3469 (May 26, 2016, Nordheimer J.). Much greater bencher concern there needs to be for what CanLII’s former President, Colin Lachance says, about private practice’s statistics showing that the number of such lawyers per capita is shrinking; see: “Law’s Reverse Musical Chair Challenge” (Slaw, June 16, 2016). For both bencher and lawyer it is not a new problem. See LSUC’s, “Final Report of the Sole Practitioner and Small Firm Task Force,” pages 50-54 (paragraphs 117-130) (March 24, 2005; reviewed in Convocation, April 28, 2005).

Is law school still worth its great expense? Law societies have made investment in a law school education a very high stakes gamble. Law professors should be calling law societies to account for this circumstance, and for being the cause of the unaffordable legal services problem.

For further deliberation and the way to deliverance from the problem’s very destructive stasis, see (pdf):

(1) “Access to Justice – Unaffordable Legal Services’ Concepts and Solutions” (SSRN, August 6, 2016); and a summary posted on Slaw, August 9, 2016, “A2J: Unaffordable Legal Services’ Concepts and Solutions”;

(2) “A2J: ‘Let Them Eat Cake,’ So, Let Them Use Alternative Legal Services” (Slaw, November 26, 2015);

(3) “No Votes in Justice Means More Wrongful Convictions” (SSRN, June 10, 2016);

(4) “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 5, 2015);

(5) “What a Law Society Should Be—A Response to the Law Society of Upper Canada’s Alternative Business Structures Discussion Paper of September 24, 2015” (SSRN, January 16, 2015);

(6) “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” (SSRN, May 20, 2014); and,

(7) “Access to Justice—The Unavailability of Legal Services at Reasonable Cost and the Canadian Charter of Rights and Freedoms” (SSRN, August 29, 2013).

 

____________________________

[i] For the impressive accomplishments of LegalZoom in marketing and avoiding being convicted for “the unauthorized practice of law” (UPL) see: Benjamin H. Barton, Glass Half Full—The Decline and Rebirth of the Legal Profession, chapter 5, “LegalZoom and Death from Below,” (pp. 85-105), (Oxford University Press, 2015).

[ii] For an example of such a prohibition and offence, see Ontario’s Law Society Act, s. 26.1 (Non-licensee practicing law or providing legal services); s. 26.2 (punishment, etc., for contravening s. 26.1); and, s. 21.3 (order prohibiting contravention).

[iii] Alternative legal services (ALSs) are, for example: clinics of various types, self-help webpages, phone-in services, paralegal and law student programs, family mediation services, social justice tribunals, court procedures simplification projects, arbitration and mediation for dispute resolution, public legal education information services, programs for targeted (unbundled) limited retainer legal services (as distinguished from a full retainer to provide all of the legal services necessary), pro bono (free) legal services for short and simple cases, and the National Self-Represented Litigants Project, the purpose of which is to help self-represented litigants to be more effective self-represented litigants.

 

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)