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A Proposal: The Legal Council of Elrond

After about 20 years of studying the Canadian legal sector, I’ve reached a couple of conclusions:

  1. The Canadian legal system is in the process of breaking down.
  2. No single group within the Canadian legal community can fix it.

To the first point, I’d cite the following:

I could go on, but you already know most or all of this. You only have to look around at your local bar or courthouse to know how bad things have gotten. These are the chronic symptoms of a seriously ill justice system, and the fact that it’s probably worse in other countries shouldn’t make us feel any better about what’s going on in this one.

To the second point, I’d simply state what seems obvious: These problems are beyond the control of any single participant or stakeholder in the legal system. Lawyers alone can’t solve these problems. Judges alone can’t solve them. Governments alone can’t solve them. Regulators alone can’t solve them.

But together, maybe, they can try.

Here’s my proposal: It’s time to convene what I would call a Legal “Council of Elrond.” If you’ve read The Lord of the Rings or seen the movies, you know that the Council of Elrond was an emergency summit to which representatives of all the free peoples of Middle Earth were called, to address and resolve the crisis of what to do with the One Ring.

Note that the Council of Elrond wasn’t a conference or think-tank or brainstorming session. It was a meeting called to resolve a specific crisis through a specific action. Everyone who was summoned to the council was expected to contribute to the solution, and nobody was allowed to leave until a solution was achieved and a binding decision had been taken to implement it.

The Council’s decision, in LOTR, led to a worldwide war and immense personal sacrifices on the part of everyone who agreed to it. It was not a collaborative exchange of ideas. It was meant to save the world, and it accepted widespread violence and destruction as a probable side effect.

What would be the purpose of a Legal Council of Elrond? To resolve the crisis of the impending failure of the Canadian justice system, which is a destination towards which we’re surely headed. The Legal Council would convene for only one purpose: to come to a decision — I don’t say “consensus,” because not everyone who attends will like what gets decided — that will arrest the collapse of our justice system with drastic, probably self-sacrificial action. Nobody leaves until that decision has been reached and until all the attendees have committed to its implementation.

Who would attend? At a bare minimum, the Council would require the presence of four high-ranking representatives of the following organizations:

  1. The Federal Department of Justice (ideally, the Deputy Minister)
  2. The Canadian Judicial Council (its President or his/her delegate)
  3. The Federation of Law Societies (its President or his/her delegate)
  4. The Canadian Bar Association (its President or his/her delegate)

These are four federal organizations — they command the largest share of the Canadian legal and judicial sector, and their remit includes the broadest swathe of the Canadian legal system’s user base. Provincial, territorial, indigenous, private-sector, and other public-sector groups are welcomed to participate as well, although they might want to also consider convening their own Councils — as Legolas said to Gimli, “They have no need to come to war; war already marches on their own lands.”

But — here are the conditions for everybody’s attendance at the Legal Council of Elrond. Nobody gets to attend, not even the four organizations listed above, unless they agree to the following two conditions:

1. You must be willing to give up something significant that you now possess to help resolve the impending collapse of the legal system. What might that be? Make a list of your sacred cows — it’s one of them.

2. You must be authorized to bind your organization to whatever the Council decides to do — none of this “conditional agreement pending organizational approval” stuff. You are the authorized agent of those who sent you.

If you can’t promise to meet these two conditions, then you cannot attend. You are welcome to submit relevant data for the Council’s consideration, and/or an implementable solution with a fully costed roadmap or blueprint. But unless you’re willing to put your own skin in the game — to place your own crown jewels on the table — you stay outside the door.

A Council this serious and significant needs serious and significant leadership. We don’t have any elf lords hanging around, but we have, I believe, two individuals uniquely positioned right now to co-chair this council and drive it to a successful conclusion.

  • The Right Honourable Beverley McLachlin, soon to be the former Chief Justice of Canada; and
  • The Right Honourable David Johnston, a lawyer and the former Governor-General of Canada

The federal government, through the Department of Justice, can choose the location of the Council and can pick up the tab for its expenses. The ultimate responsibility for Canada’s justice system lies with the government, and specifically with the DoJ. They will be held responsible for the failure of the justice system; they should shoulder the lesser responsibility of organizing and hosting this Council.

I’m certainly in no position to make this happen by myself. But I am in a position to write about it, and to issue this call for the parties above, to reach out to each other and strive to make it happen within the next nine to twelve months. For myself, I’ll commit to play whatever role in a Legal Council of Elrond that I could usefully play.

That’s my proposal. What say you?

Comments

  1. Sheer coincidence, but reading the obit of Maurice Carroll yesterday, I came across his wonderfully apposite aphorism: “The best of all possible promises has two elements, it involves something thoroughly worth doing, and someone else to do it.”

    Noble project, though! Go get them, Jordan!

  2. Jordan, which sacred cows would you want to see presented for sacrifice by these four organisations?

  3. Jordan, I love this idea! As a friendly amendment I’d be inclined to replace the Federation and the CBA with four big Canadian law societies – the Barreau, the LSO, the LSBC and the LSA. Fundamentally neither the Federation nor the CBA have the real power to do anything, and anything big they have problems selling to their members. The provincial law societies, by contrast, have the power and need to commit to exercising it in the public interest to address these intractable problems.

  4. Noel, I was reluctant to identify any ideas in the post, in order to keep from prejudicing any eventual decisions that participating entities might make. But to answer your question, if I were in a position to suggest possibilities, I might start with something like the following:

    – DoJ: Quadruple funding for the court system for a four-year term, to give the current system a chance to operate properly while the new one is being built, and fund and/or draft legislation to support the other initiatives below.

    – CJC: Apply “expedited proceedings” to all litigation by default unless both parties show cause otherwise, partner with ODR systems like BC’s Civil Resolution Tribunal, and begin divesting the courts of most family law cases.

    – Law societies: Instigate proceedings for the unauthorized practice of law only in cases where harm is alleged by a client of a non-lawyer provider, and drop the prohibition against lawyers sharing fees with non-lawyers.

    – The practising bar: Support non-lawyer ownership of law firms, support a broader scope of practice for para-professionals, build better law firm models, and help fund competence training programs to replace articling.

    Those are basically off the top of my head — maybe they’re too radical, but probably they’re not radical enough. I’d be interested to hear what other commenters might propose — there are probably many more possibilities, especially where the courts and law societies are concerned.

    But I know this: The standard response to all these suggestions is always along the lines of “Well, we can’t do that,” or “The public wouldn’t be protected,” or “The judges/lawyers/firms/law societies would never permit it.” It’s always a surrender before a single shot is fired, giving up before the effort is even made. It’s not just the lack of funding that’s wrecking the justice system; it’s the reflexive intransigence of its major participants and their refusal ab initio to cede any territory, influence, or money to facilitate improvement.

    That’s one of the primary motivations behind this proposal: to find out who’s serious in this country about fixing the justice system and who’s just blowing smoke. The great majority of players currently wielding influence in the legal system fall into the latter category: They talk a great game, but when it comes time for them to make a serious sacrifice, suddenly it’s everyone else’s problem but theirs.

    I personally think that civil legal aid funding is shamefully low in Canada today, and that as a society, we ought to be embarrassed by the spectacle of millions of Canadians struggling alone through the justice system. But I also can’t blame governments for their reluctance to shovel ever-more cash into a system that never seems to get any better or smarter or faster or more effective, because judges won’t change the way they do things and court staff won’t change the way they do things and regulators won’t change the way they do things and lawyers won’t change the way they do things. Everyone’s got an interest they want to protect. Nobody wants to go first.

    That’s what this Council proposal is mean to address: Find out who’s serious about fixing the justice system by finding out who’s ready and willing to change their habits and reduce their own power base, get them all in the same room, and get them to go first together.

    Maybe that’s a really stupid idea. I’m open to hearing a better one.

  5. Alice, that sounds perfectly fine to me. I don’t want to bar anyone from participating in this (entirely hypothetical) process, and the more players of influence at the table, the better. But the FLSC and CBA, even though they don’t have much actionable authority, could still lead by example and profile if they participated and made a meaningful commitment and/or sacrifice.

  6. By the way, I recognize that the CJC, like the CBA and FLSC, has limited authority to actually make things happen. But I couldn’t think of any comparable high-profile national judicial organization, and the thought of every appellate, superior, and lower court in the country sending representatives was, shall we say, daunting.

    But somehow, some way, the people who run Canada’s courts have to be part of this, for both practical and constitutional reasons. No one group has the power to effect change alone; but only the judiciary is in a position to completely block change of any kind without having to fear any repercussions. If the courts won’t willingly lead or at least participate fully in the reform process, then the justice system really will crash and burn.

  7. Radagast aka A. Lawyer

    Sadly, while the Fellowship sets up the necessary cataclysm, I suspect I and the tiny creatures will be out in the bush as it all happens and only dimly aware of the result until the winds finally carry it out here to the wood.

    All kidding aside, I do hope this council (or something like it) comes to pass.

  8. I like the idea of forcing the sacrifices that are surely needed and I don’t think your list in the comments goes half far enough or is even radical at this point.
    What concerns me though is the top down approach this represents which is likely to leave is with another version of a system unable to meet or really even grasp the needs of those who must use the services it provides. Somehow there has to be a way to bring legal consumers of all kinds to this council or it will, I fear, be doomed to ongoing failure of imagination and over-reliance on precedent.
    I’m also sceptical of any solution developed only by insiders to the status quo and would hope for a mechanism to engage the bright minds of other professions and sectors as well.
    But, bravo to you for imagining a path to something better. I heartily agree that the time for studies has past and now is the right time to commit to action.

  9. I was one of 100 ppl from across Canada invited to Justice Cromwell’s Access to Justice summit in TO a few years ago and the thing that stood out most for me was that although the discussion was mostly about needing to support ppl w services outside court (mediation, negotiation support/skills, legal education, parenting coordination, etc) 85% of the ppl invited were lawyers/judges. I was one of only 2-3 collaborative mediators there (as well as being one of the lawyers) and there were maybe a couple of public legal ed professionals, and a few community orgs. It was bizarre but illuminating. There are so many other professionals that are part of this discussion, but it was like an after thought to include them in the dialogue. I remember one judge being super-excited to present a recent epiphany by drawing a chart showing how 80-90% of the solutions for ppl seeking resolution to legal conflict come from outside the legal profession but 80-90% of the cost/funding is inside it. And his chart STILL had court drawn really big in the center of his diagram and he STILL referred to those 80-90% of interventions as “alternatives” (drawn as smaller satellites around the outside of court). The alternative process in most types of disputes, and in particularly inter-personal disputes, is the adversarial system. It’s been a new world for a while now (and I know you’ve been analyzing and documenting that for more than two decades so you get this.)

    Maybe bringing the council together is less about deciding what to do with the one true ring and more of an opportunity to gain insight into all the other rings/brackets/necklaces/etc.

  10. As a self-represented person since 2011, dealing with multiple litigations at different levels of the legal system, I don’t believe that the problem can be fixed without consulting people from outside the legal system.
    There needs to be an “outside” council, not an “inside” council, to fix the problem. I recently spoke at the SOAR conference on insiders and outsiders.
    A better label would be haves and have nots.
    A few points I’d like to make.
    1. Hold people accountable for making sworn false statements.
    Our justice system is based on people presenting evidence under sworn testimony or sworn affidavit. In the family court context, parents make up allegations of abuse all the time, and the courts, and justices actually condone the behaviour as “normal”. When someone lies in an affidavit or by testimony, it is called perjury. But how often do courts actually prosecute perjury? I would say not nearly enough. We have rules in place, but they aren’t enforced. If the rules aren’t enforced, then don’t make it look as if they are supposed to tell the truth, just do away with sworn statements all together. If that sounds harsh, I would say it’s more harsh to read an affidavit written by your ex and or her friends and family that is full of lies while they try and take the children away from you, and they aren’t held accountable. All to gain a tactical advantage in court.
    2. Award costs based on the quality of work performed and not on their status.
    I have represented against lawyers with 36 years experience, and have had better legal arguments, better paper work, and better case law, spent over 200 hours on a single litigation and won a complex “Norwich” order and was only awarded $3000 in costs. Where is this fair and equitable? Had I lost, I would have had to pay costs based on the opposing lawyers costs at perhaps $600 an hour. Costs should be based on the work done, and not who did the work.
    I propose that when self-represented parties are entitled to costs that they perhaps get their work evaluated by the lawyers assessment service. They are the best equipped to analyze the work performed and make a determination of the value of the work the self rep has produced. That value can then be placed in front of the learned judge and they can make a determination of the costs based on the losing party’s behaviour in litigation.
    3. Open the doors wide open to have people represent others in family and civil court. Back in the day law clerks used to be able to represent in family court, the problems we have now are a direct result of losing that ability. One’s training does not make one good at advocacy.
    4. Make resources available to everyone:
    I’m talking about CANLII.org which needs to have its funding increased to the point that their library is as large if not larger than west law or quick law. I also believe that law libraries across the different counties in every province should be made public. I, for one, as a person who lives in a rural area, have to drive 2 hours in good traffic to visit either the great library (Osgoode Hall) in Toronto or to York University (Osgoode Law School) law library. It is a great barrier to me. I have written my local law association to ask if they would open the doors to the public and have no reply. These law libraries are located in public buildings and should be open to the public to do legal research.
    I believe these changes will go a long way to making the system more efficient, and more streamlined.
    The more educated the public is, the more prepared the public will be in court. And that helps everyone.

  11. Jordan – should clients have a seat at the table?

  12. I can never give up plain language nor release the nobles from their duty to communicate clearly–so I guess I cannot join.

  13. Law societies are the effective cause of the “unaffordable legal services problem,” and no one else. The cause is the fact that there are no economies-of-scale in the practice of law, i.e., the method by which the work is done to provide legal services is obsolete. Because law societies are also obsolete, they have failed to provide the innovations that would enable that method to produce affordable legal services.
    For the solution to the problem see: (1) “Access to Justice-Unaffordable Legal Services’ Concepts and Solutions”; at: https://ssrn.com/abstract=2811627 . (free pdf download; SSRN, August 29, 2017); and,
    (2) “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner, at:
    https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3020489
    (pdf download; SSRN, September 2017).
    For more than 100 years, production of everything, that isn’t produced by a monopoly producer like the legal profession, has undergone a continuous transition from cottage industry-handcraftsman’s methods to support services methods. Lawyers still work by a cottage industry method wherein each law firm uses only its own internal resources to produce legal services. Therefore the problem is inevitable.
    Jordan Furlong’s article and all of the above comments are interesting but fail to understand the cause of the problem because they are written by lawyers. But the problem is not a legal problem. Lawyers lack the necessary expertise. They all assume that the present method by which legal services are provided is the only possible method of providing them. That is wrong.
    Therefore the suggestion that a committee be formed of legally trained people will never bring about a solution, no matter how prominent and experienced those people are, and how diverse and universally representative its members are.
    If the first manufacturers of automobiles had believed that their production method was the only possible method, automobiles would also be unaffordable to the majority of society. Instead there is a massive support service that is the “parts industry.” It is the main source of the economies-of-scale that maintain the affordability of automobiles. 200 years ago, lawyers and doctors had the very same work situation. Now, there is no comparison. No doctors office provides all treatments and all remedies the way a lawyer’s office does for all clients. The whole of the medical services infrastructure is made of mutually interdependent, highly specialized, high volume support services. In the medical profession, innovation in the method of producing medical services never stops. In the legal profession it never started. No pressure–no innovation.
    Many parts of lawyers’ work, such as legal research, should be done by highly specialized, high volume support services, available to all lawyers and judges. Affordability is not possible without the use of such support services methods of production. All around us are examples of the solution in proof of what affordability requires. But the mountain of literature produced by the problem contains no such analysis, because it has all been written by lawyers and other legally trained people.
    Committees of lawyers and judges alone will not by themselves learn the true cause of the problem. Therefore, their efforts and recommendations will not stop the problem’s victims from continuing to grow.
    Blame law societies first because they are the true one and only cause of the problem. Only they can alter the method by which legal services are provided so that, that method can provide affordable legal services. For ancillary blame, blame governments second for not pressuring law societies to perform their duties under the law (e.g., s. 4.2 of Ontario’s Law Society Act). And then blame lawyers third for not pressuring their law societies to try to solve the problem. No law society has a program the purpose of which is to: (1) learn the true cause of the problem; and then, (2) develop a strategy for attacking that cause.
    I have been an observer and “endurer” of law societies since my call to the bar on March 25, 1966. The management structure of law societies in Canada is obsolete. It is no longer possible to be both a good lawyer and a good bencher-manager of a law society. And so because there is no pressure on them, benchers give top priority to being good lawyers and a very poor 2nd priority to being good benchers. Their major duty is to the population, but they are not elected by the population, and governments do not make them accountable to the democratic-political process.
    The best thing for all of us and all victims of the problem would be to abolish law societies. Replace them with permanent institutions of continuously developing expertise. Law societies are like a government without a civil service. Therefore they are incapable of governing effectively. The problem’s persistence proves that.
    In the meantime, the commercial producers of legal services, such as, LegalZoom, LegalX, and Rocket Lawyer, will take over the market of the general practitioner. They are well on their way to doing that in the U.S., and have started to do so in Canada. Our law societies, as presently structured, are incapable of defending us from that process. And so the legal profession is doomed to shrink drastically. But there will always be lawyers’ and judges’ recommendations to form yet another type of “access to justice”
    committee.
    Stop making recommendations without understanding the true cause of the problem. Otherwise, such recommendations are just “window dressing” that help law societies to cover up the fact that they and the legal profession as a whole have reacted incompetently to the problem during all of the many years of its existence. They help benchers to maintain their present priorities. There is no analytical support for the often used statements that: (1) the problem has many causes; and, (2) representatives of many agencies of the justice system have to be convened in a committee to develop a solution. There is no authoritative proof of such assumptions, and no authoritative studying of the cause of the problem.

  14. Your suggested “council” already exists: The Action Committee on Access to Justice in Civil and Family Matters of which CJ McLachlin in the honorary chair.

  15. What your council really needs is a group of nobles, dedicated to the problem, who are devoid of the prejudices and vested interests inherent in members of the legal profession. The user base needs its own champions, with no conflicts of interest, motivated to change the system in ways that will make it efficient without regard to how efficiency will affect the business model of legal service providers, ready to put Luddites to the sword as necessary.

    Such nobles must receive adequate and continuing funding from the crown enabling them to completely devote themselves to the noble and complex task of seeing to the interests of the user base. This council could take many years to complete its task – indeed it may need to toil until the end of time. Such a group could be led by senior economists and other learned technocrats but lawyers must acknowledge they are conflicted and need outside help to move this along.

  16. Dan, I certainly wouldn’t disinvite them, but I’m not sure this is their problem to fix. The first order of business is for the people and entities that actually run the justice system to recognize the severity of the problem and accept that drastic, painful, coordinated action is needed in response. That in itself would be a monumental step forward, and I’m under no illusions that we’re anywhere close to it.

    I’d definitely solicit the input of system users in designing the improvements or overhauls required (or even in drawing up an entirely new approach altogether), if or when we reach that tipping point of institutional commitment and political will. But it’s not like we don’t know the legal system isn’t working, or the nature of the system’s most severe afflictions.

    We know what’s wrong. Are we willing to act? That’s the real question. And we can either answer it now, when we have some freedom of action, or later, when our maneuverability and options are much more restricted.

  17. Jordan,

    Pretty good idea, but:

    First, ABS is NOT the answer. Once adopted, it is irreversible and absolutely certain to be bitterly regretted. It leads to anti-competitive consolidations, loss of very hard-won independence of the legal profession as lawyers become the puppets of outside profit seekers, an irreversible compromising of legal ethics, and so on. Please drop that from your thesis. If you are not prepared to do that, ask me for the tome that I have written on the evils of ABS, the sad news from England, and just how unnecessary it is to achieve the goals erroneously, fatuously (and often financially self-servingly) claimed as being possible only through ABS.

    Second, it is important to make the distinction between barrister services and solicitor services. Solicitor services are overwhelmingly affordable by virtually everyone. Virtually everyone can afford the $200 cost of a well-drafted and thorough will. The fact that half the adult population does not have a will is not related to cost but to procrastination, dislike of contemplating one’s mortality, and ignorance of the amazing cost-effectiveness of a will versus an estate battle or even having to probate assets that might not have had to be probated. Encouraging more people to have wills would be better addressed by law society public service advertising/information spots. Real estate fees are a sliver of a pittance compared to the the costs of buying or selling a home. On a sale, the legal fee is a fraction of the HST on the real estate commission, never mind the commission. On a purchase, the legal fee is, except for first time buyers who may not pay any LTT, far less than the LTT, less than the moving company, less than a new fridge. Small firm solicitor fees are not the problem.

    Barrister services are horrifically expensive and, therefore, are the problem. Barristers say to me, “I cannot afford myself”. Why are those services so costly? Because of the time it takes to resolve a dispute, that’s why. Time is money. Until the time required to resolve disputes is reduced, the problem will roll benightedly on. Fix the time problem and you will largely fix the affordability problem.

    How do to that?

    First, take custody and access battles out of the family law litigation maelstrom by having a statutory automatic mandatory joint custody and access regime in all cases other than those where (a) the parties agree in writing otherwise, and (b) there is, on a high accusatory threshold, evidence that one parent is unfit. This, or something similar, is what has existed in Europe for half a century, and what has been adopted in at least two US states, and may soon be on the legislative agenda in Ontario.

    Second, shorten the time from issuance of Claim to trial date by, at a minimum, getting rid of mandatory mediation and pre-trial steps in civil litigation. When you issue your Claim, the court clerk will give you your trial date (the government can pick the timetable) three or six months later. At that time, you are required to appear for trial unless you have settled. If you have not settled, you’d better be ready to explain to an annoyed judge why, in a legal world where there is very little new under the sun, the lawyers could not, with a high degree of accuracy, determine how a sensible and informed judge would rule, and instead exchange sensible offers to settle and then settle. Judges should be mandated to make far more use of heavy cost penalties on parties who were the reason a reasonable offer to settle was not accepted. Quicker time deadlines, annoyed judges, and hefty costs penalties would be the Swords of Damocles the system desperately needs. Lawyers and their clients would quickly learn to settle fairly or be stomped on, and the demands on the court system would be greatly reduced.

    Third, rationalize the number of law and paralegal school graduates. The schools are out of control, allowing in hordes, failing virtually no-one and thus graduating the same hordes, and caring only about how to maximize tuition and government grant revenues. Unlike most areas of the economy where demand drives supply, the professions can drive demand for their supply. That is why the professions are regulated and held to high standards, and, for example, appliance salespeople do not have to be regulated (their ability to sell fridges is limited by the number of cut-outs in counters in Canada, the planned obsolescence, and the desire of some to keep up with the Joneses. That’s it. That’s their demand market). Professionals, on the other hand, can take advantage of lack of knowledge to drive up demand for their services. If you have too few clients per barrister, the barrister has to make more money off each client to make the debt worth it all and a decent lifestyle achievable. Engineer a system where barristers are busy quickly solving disputes and getting on to helping more clients in less time per client, instead of the current system where the longer the disputes lasts, the better for the barrister.

    Those are very brief descriptions of just some of the solutions. One thing that is certain is that ABS or ABS-light are NOT solutions; they are problem compounders. What we need is foresight and backbone by government so that it can reduce what it wastes on funding unneeded law and paralegal students, what it wastes on clogged courts hearing unprepared people squabbling over their kids, what it wastes on judges and staff involved in trials that could have been avoided, what it wastes on health care for stressed out litigants, what it loses in harmed productivity in the workplace by stressed out litigants, and so on.

    But, like I said, pretty good idea overall. Cheers.

  18. Does anybody other than me find the idea of redesigning a system without first checking to see whether any of the potential users are interested in keeping any part of the current design, or wold want any version of the new design in whole or in part, just a bit odd?

    After all, we’d be redesigning the system for their benefit, not ours, right? If we benefit, that’s secondary, right?

    Just asking from the retirement cheap seats.

  19. “The first order of business is for the people and entities that actually run the justice system to recognize the severity of the problem and accept that drastic, painful, coordinated action is needed in response. That in itself would be a monumental step forward, and I’m under no illusions that we’re anywhere close to it. ”

    I’d like to suggest that what the legal establishment seems unable to grasp is not just the ‘severity’ of the problem, but its very nature.

    Ideally I’d choose to see the entire system thrown out and replaced with something designed from the ground up. If the legal establishment was willing to listen to some of the experienced SRLs like me who have learned from their experiences then I believe we could make real headway in designing forums and processes that vastly improve on what we have.

    But if you want to deal with people like me you’ll have to accept that we are not going to be very charitable. What I’ve seen says that lawyers view the ideal client as wealthy and uninformed. I started out as uninformed but decidedly not-wealthy. I now consider myself to be quite adequately informed about the vast chasm between the justice system promised and the one we are living with.

    I put it to all of you bluntly. Do you want to get out of this mess or not? All of the entities listed by Mr. Furlong bear a measure of responsibility. You need help from entities that haven’t contributed to the problem. I have no formal credentials, but I believe that I and some of the other SRLs could contribute to developing solutions. There are also professionals in other disciplines that I think could help.

    So, I’m suggesting there is some hope. But you don’t have forever.

  20. Bradley, you’re wrong to dismiss ABS outright. You say that allowing for alternative business structures would lead to “anti-competitive consolidations, loss of very hard-won independence of the legal profession as lawyers become the puppets of outside profit seekers, an irreversible compromising of legal ethics, and so on”. Anyone who’s worked at a traditional law firm, however, knows that the lawyers themselves are the profit seekers.

    Partners cracking the whip on associates, young lawyers coming into the office 7 days a week to hit targets, and ludicrously high billable hour rates (is ANYONE’S time worth $400-500+/hour? I think not.) all tell me that law – at least, in private practice – is already about profit. Making money is the name of the game at the end of the day. Jordan and others have written at length about how the billable-hour, annual-target model of law firms is a major contributing factor to the problems we see in the legal profession today. This problem is compounded by the fact that the business of law in Canada is a lawyer-owned monopoly. We have no incentive to change the broken system because, ultimately, the system benefits us – to the detriment of our clients.

    We are in the service industry. And until more lawyers start to approach their businesses that way and realize that law should, indeed, be client-driven, things are not going to change. I believe that an integral part of the change must be changing the fundamental structures upon which law firm businesses are built.

  21. A great idea, but NOT McLachlin CJC. First, the whole point of the exercise is to have dramatic, new ideas, and “the past” is hardly the right symbol for that. Second, she has been on the SCC since 1989 and has been CJC since 2000, both of which speak to her practical isolation from almost all of the dirty-fingers, day-to-day problems faced by the courts and lawyers every day, and those problems are frequently the most “impactful” ones.

    Third, and to my eye most importantly, she has been on record (most recently as to the OBA in 2015, iirc), as saying words to the effect of “hey, there’s a crisis in the law regarding affordability, adapting to new models, delay, complexity, etc., etc., and system, laws and the court administrations and we the judges all play a big role in that … but we’re only going to talk about what the lawyers have to do to make things better”. If this particular Council of Elrond speaks only to yet another round of “blame the lawyers and tell them to solve a problem that’s only partially of their making” (which is how they usually go, because nobody has the backbone to take on the court administration or judges) then I’d just as soon that nobody’s time be wasted with such a palaver.

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