Column

Access to Justice: “We Have Seen the Enemy and He Is Us”

[articles cited without authors are mine]

Lawyers remain the passive victims of the benchers[1] that we ourselves elected to be the law societies’ managers, instead of demanding that they get busy solving the problem of unaffordable legal services (“the problem”). The benchers are to regulate the legal profession so as to, “maintain and advance the cause of justice and the rule of law,” and, “facilitate access to justice,” and, “to protect the public interest,” being, for example, among the express duties of LSUC (the Law Society of Upper Canada),[2] being duties expressly set out in legislation such as section 4.2 of Ontario’s Law Society Act. Such duties must apply to all law societies in Canada.

Law society management is still conducted by way of its originating 19th century structure and mentality. Therefore, adducing incriminating “similar fact evidence,” I’ve written about:

(1) LSUC’s self-interested and conflicted management of Legal Aid Ontario (1967-1997); to assuage its fears of LAO’s expansion to accommodate socialized law and consequentially LSUC’s being removed for the same reasons that are now causing the problem—conflict of interest and refusal to innovate, which resulted in the Ontario Legal Aid Services Act, 1998;

(2) its letters to the Ontario Government urging better funding for Legal Aid Ontario for the victims that LSUC itself caused; and,

(3) its recent handling of the “alternative business structures proposals” (ABS proposals) for the potential millions of dollars in legal fees to be earned by representing investors eager to own law firms.

See in proof thereof: (1) “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (Oct. 5, 2017, SSRN, pdf.); and, (2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (section 11, pp. 81-124; August 29, 2017, SSRN, pdf.). They also contain the problem’s solution.

Appreciate the strategy underlying LSUC’s approval of the “charity ABSs” (“civil society organizations”) at its September 2017 meeting,[3] “to steal a march” upon its way to full approval of all ABSs no less. Would those benchers who have investor-clients be working merely the alleged 31 days a year bencher-average of unpaid labour to get that approval?[4] But getting equal “bencher-time and devotion” applied to solving the problem of unaffordable legal services won’t happen until we demand it.

However, if you are a law school professor participating in an access to justice (A2J) program, yours isn’t the purely charity-motivated response either. The ethical approach to the A2J problem is first to determine if the problem can be solved, and if clearly it cannot be solved, only then to engage in programs such as: the law societies’ “alternative legal services”;[5] “Access to Justice Week”; an A2J committee; and, comparable efforts such as the NSRLP (the National Self-Represented Litigants Project). Would they, and the CFCJ (Canadian Forum for Civil Justice), and the AJRN (Access to Justice Research Network), exist if the problem hadn’t happened? Or at the least do both together, equally diligently.

There are many such responses to the problem, notably those headed by law professors thereby promoting their careers. Purely commendable they appear to be, but also undeservedly available to be used by benchers as “window-dressing” excuses for not trying to solve the problem. For several years now, their A2J committees have made no progress towards a solution but carry on, perhaps unintentionally, to serve only to create the false appearance of an adequate law society response.

In fact, the problem can be solved. But instead, more and more legally-trained people are giving themselves up to living-off the problem, progressively so that it is in their interest that the problem not be solved. That serves law society benchers very well. They wish to continue to give top priority to the place where they earn their own living, and give nothing to the much more important duty of making legal services adequately available. “Affordability” not being expressly stated in legislation such as s. 4.2 of Ontario’s Law Society Act, and so the problem has been growing worse for decades, and with it, the number of lawyers, law professors etc., who provide responses to the problem without the intention of creating a solution. Merely palliative care it is instead of trying to cure the disease that is hindering, if not blocking the majority of the population’s right to an affordable opportunity to have effective enforcement of their constitutional guarantees of rights, freedoms, and the rule of law. It is law societies no less who are doing this because, No Longer Is It Possible to Be Both a Good Lawyer and a Good Bencher (Slaw, May 29, 2017). But worse; benchers do nothing to resolve that conflict.

But, if you or those benchers and law professors had a close family member who had a serious legal problem, would you be content to send them to programs such as: the law societies’ “alternative legal services”; the NSRLP (National Self-Represented Litigants Project); or the Canadian Bar Association’s “For the Public” webpage? Of course not. You and they have the means to retain the best lawyer possible for those you hold near and dear. So first, shouldn’t they try to give the rest of the population that same opportunity? The unaffordable legal services problem afflicts the majority of the population. Such charity provided by that “legal establishment” is not a sufficient answer.

And it isn’t enough to say, “but I can’t solve the problem by myself.” True; but law societies can. And together we can force law societies to do so, and elect only benchers who undertake to do so. You, as a law school professor, can publish and urge your colleagues to publish and speak in several venues about analyses of the cause of the problem, and the responsibility of those accountable for its solution, including law societies, and governments and lawyers who have failed to hold law societies to account for their refusal to try to solve the problem. Write articles like this one and better.

Challenge as well, Ontario’s Attorney General’s giving, on September 26, 2017, $80,000 to the Legal Innovation Zone at Ryerson University in Toronto, to sponsor “a call for startups using artificial intelligence in their innovative legal tech solutions,” without there having been any prior analysis as to what affect they could have. The Attorney General appears to be proceeding backwards, i.e., “if we use taxpayers’ money to finance ‘startups’ and their ‘apps’ we just might find out what affect they can have on the problem.” (“Apps” are applications of electronic technology to the provision of legal services.) In other words, throwing a lot of “apps” at a problem with no knowledge of what the cause of the problem is. Instead, first answer this question, why is it that the method of providing legal services cannot produce affordable legal services? Both government and the law societies are satisfied with appearances instead of substance in their responses to the problem. See: “’Apps’ and the Waning of the Solicitor-Client Relationship” (Slaw, October 3, 2017). It is a product of the long-standing political, Machiavellian tenant that dictates, “never spend any significant amount of money on the justice system because, there are no votes in justice.” See: “No Votes in Justice Means More Wrongful Convictions” (SSRN, pdf., June 10, 2016).

The ethical obligation to challenge law societies is ignored by law school professors in preference for a more certain form of career advancement by staying on good terms with their law societies and favorite benchers—indeed, there’s work and visible exposure in the right places to be had that way! The problem continues to be caused by law society neglect, plainly obvious to decades of benchers and law professors. And it is not uncontrollable like the weather, i.e., it is capable of a law society solution, and law professors’ analysis as to the cause of, and advocacy for the solution. Their recommendations for making law offices more cost-efficient can lower costs but not sufficiently to produce affordability.

That is why “support services” methods of production are used everywhere, i.e., the use of external, highly specialized, high volume support services to make everything—from automobiles to medical services—except in the legal profession. As a result, it is said that, “there are no economies-of-scale in the practice of law,” which is the cause of the problem. Law firms don’t have sufficient specialization of all factors of production and volumes of production. But specialized support services do. They don’t exist in the legal profession because law societies are not pressured by their membership to sponsor their creation and use.[6]

How does one justify a response to the problem that does nothing more than to help the population learn to live with the problem, as being adequate without also working towards its solution? Law professors are very well paid now, mostly from high student tuition fees. The salaries of Ontario’s law professors and law school deans over $100,000 per year, are publically listed in: (1) the April 10, 2017 issue of the LAW TIMES (Thomson Reuters Canada Ltd., at p. 5); and, (2) the April 4, 2016 issue of the LAW TIMES (p. 2), (plus, they have their outside engagements). So it is that law professors have security and comparative wealth, but their students have career insecurity and debt. What are they doing to help their students cope with their financially poor future in our severely financially-depressed legal profession? Nothing! Instead, they maintain good relations with their law societies and favourite benchers, as is judged to be best for their careers and their law schools. A conflict-of-interest ethics question is thereby raised, but one not studied, let alone confessed and attempted to be resolved.

Conclusion: Canada’s law societies are like the sun in a planetary system about which all other parts and participants of the justice system revolve. Such it is that now apparent to all, when law societies fail, the justice system fails. And the many millions of victims and their misery continue to grow because we tolerate it.

As for LSUC’s CEO, the Treasurer, a LAW TIMES article dated June 27, 2016, has this heading, “New LSUC treasurer elected, outlines main priorities” (p. 5). LSUC’s new Treasurer, Paul Schabas, is quoted as saying:

The law society can’t fix the access to justice challenges on its own, but it can be more active in working with government, the courts, Legal Aid Ontario, and others, and pushing for changes and improvements in how legal services are delivered in Ontario.

Consider what the 50,000+ members of LSUC, (most of whom are worried about their financial condition) might think of that statement.

(1) there is no proof that the law society can’t deal with the problem “on its own,” it being a problem that LSUC itself inflicted on the residents of Ontario by decades of ignoring it (as have all law societies), and with no attempt to solve it or learn its cause, which might well be “a breach of trust by a public officer”; see s. 122 of the Criminal Code, and the definition of “public officer” provided by, R. v. Boulanger 2006 SCC 12.

(2) before taking action in response to any problem, one should know, if possible, the true cause of the problem so as to know what to ask for, and whom to be “pushing for changes” when asking for it;

(3) and first there should be an attempt to learn what the cause of the problem is; and,

(4) conferring with government, Legal Aid, etc., will at best merely help the victims of the problem (including LSUC’s member-lawyers) live with the problem, but provide nothing in relation to solving the problem.

And so we see preserved in that quotation:

(1) with no proof or justification, LSUC’s continuing to point to others as being among the causes of the problem and a necessary part of the solution;

(2) being content to have the victims continue to pay for a justice system from which the legal profession earns much more than do those taxpayers earn, but LSUC will not perform its duties, as required by s. 4.2 of Ontario’s Law Society Act, to provide those taxpayers with an affordable lawyer, and its members with the innovations that enable the production of affordable legal services;

(3) continuing the extreme insult to that majority that cannot afford legal services, of providing merely programs of charity in exchange for their paying for the justice system. People want “a lawyer of their own,” not charity; see: “I Don’t Want a Free Lawyer, I Want a Real Lawyer,” (the Lawyerist.com, November 14, 2016); and,

(4) law society management still has a 19th century amateurish quality due to its benchers resisting: (1) change in that management structure to make it adequately competent; and, (2) change in the “cottage industry method” by which the work is done to produce legal services. That makes solving the problem impossible.

Imagine a large institution such as a government department or corporation, having responsibilities to the residents of a country as important as those of a law society, but nevertheless being managed by a group of part-time amateurs, i.e., benchers! “Amateurs” because the major problems, like self-represented litigants overwhelming court resources, and the unaffordable legal services problem in general, are beyond lawyers’ expertise, and law societies do not retain that necessary expertise. So all of Canada’s law societies’ pooling their resources, should. A national problem is best served by a national solution.

Clearly, a national civil service-type agency is needed by all law societies in Canada. The following article explains how to pay for it, and provides many other reasons why it is badly needed: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, August 28, 2017; pdf.).

And LSUC’s TAG (The Action Group), i.e., law students and junior lawyers organizing TAG’s “technology and access to justice” work (most recently its “Access to Justice Week,” October 23-27, 2017), which cannot possibly compensate their very expensive legal education with anything more than a severely financially depressed career. In this way LSUC improves merely the appearance of an adequate response, but those young people do not gain what only a law society-sponsored solution to the problem can give them, which is a strong possibility of a financially adequate and stable career, with a high probability of an adequate return on the large investment necessary to obtain a law degree and “call to the bar.” And LSUC’s TAG conferences etc., are never allowed to deal with solving the problem but rather entrenching the problem by devising simplistic substitutes to help the population learn to live with the problem. That being the easy way out from under the problem for benchers and all other responders. But no one is trying to solve the problem.

So for purposes of our legal careers and profession, our collective passivity makes us our own worst enemy. As a result, without socialized law, the problem will not be solved. Or, because of the commercial producers of legal services’ eating into the routine legal services market of the general practitioner (e.g., LegalZoom, LegalX, RocketLawyer), as a profession we will shrink in size, purpose, and importance, and our law societies proportionately diminished by all such measures.

Ironically, those commercial producers will provide a pressure safety valve, which, because they give middle and lower income people a place to go for some relief from the problem, can prevent pressure building to the critically explosive point on the social media, news media, broadcast media, within pressure groups, and then within political parties in opposition to elected governments, which finally causes governments themselves to threaten the abolition of law societies.

Before that time, very simple investigative journalism should have revealed the true, intentionally inadequate nature of the law societies’ responses to the problem. The easiest thing for a journalist to do is to gather a group from the self-selected many thousands suffering the misery caused by the problem, who are the self-represented litigants clogging our courts. Ask them but these three questions:

(1) Why are you here in court; you are probably going to lose because you don’t have a lawyer and the court costs will probably drive you into bankruptcy or comparable financial distress, and family break-up, depression, substance abuse, and perhaps worse; so why are you here?

(2) Is lack of money the reason why you don’t have a lawyer?

(3) And what do you think of the legal profession and its law societies?

Their stories of desperation to deal with a problem, which good conscience requires that they endure the embarrassment and frustration of preparing documents and going through the court processes. They want to know for the rest of their lives that they tried to deal with problems such as, fighting for the custody of a child, or loss of employment without cause, compensation, or notice, or to save a family business which is the source of family income and payment of a mortgage, when too old to start another business.

Their answers can be used to publish a dramatic series of very sad, troubling, and heart-rending news media stories with which to multiply the negative opinions of lawyers expressed on the social media, and among the members of opposition political parties. That is to say, calls for the abolition of law societies in Canada are very probable, but for the very apparent inevitability of the commercial producers repeating their American success in Canada and thus creating that “safety valve.” It cannot be expected that the victims will continue to grow rapidly but nevertheless matters will remain as they are.

So it will be that our law societies shrink, along with their lawyer-membership, all without benchers’ need for concern that we might object. As to the consequences that are being inflicted upon the careers of many, if not most lawyers, read these articles by Jordan Furlong: (1) Where Will the Legal Jobs Be in 2026? (attorneyatwork, September 28, 2016); and, (2) The agile lawyer will rise as permanent, full-time, salaried employment vanishes (ABA, January 30, 2014).

_____________________________

[1] “We have seen the enemy and he is us!” is a famous line from a 1970’s edition of the daily “Pogo” newspaper comic strip written by cartoonist Walt Kelly (1913-1973). “Pogo” often presented social and political issues as satire. Its characters such as, “Pogo the possum,” “Albert the alligator,” “Beauregard Bugleboy” a hound dog, and, “Porky Pine” a porcupine, among others, lived in the Okefenokee Swamp of southeastern United States. Walt Kelly’s wife and son continued the comic strip until it ceased publication on July 20, 1975.

[2] “Bencher”-Canadian usage: the terms bencher and treasurer are in use by the legal profession in Canada. A bencher in the Canadian context is a lawyer elected by the other lawyer-members of the law society to be its board of directors (referred to as “Convocation”). The treasurer is elected by the benchers to function as the chair. Paralegals are also elected as benchers in those provinces where the law societies govern the paralegal profession.

[3] LSUC is to be renamed, “The Law Society of Ontario.” But no effective date was given in the LSUC “Latest News” item (pdf.) of November 2, 2017.

[4] LSUC’s Convocation approved, in principle, a policy to permit lawyers and paralegals to provide legal services through civil society organizations (CSOs), such as charities and not-for-profit organizations. CSOs will register with the Law Society, provided certain conditions are met. For more information see the, Professional Regulation Committee report (at Tab 5.3; pdf.). And for background information see the, ABS Working Group webpage.

[5] The third paragraph of the Fall-2014 announcement of LSUC’s April 30, 2015 bencher election (for the traditional four-year term) stated that on average benchers contribute 31 days per year for their bencher work. And shortly after the announcement, it was revealed during an online seminar “on the life of a bencher,” that the first 26 of those 31 days are unpaid, and thereafter compensated at a modest rate.

[6] 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; and 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 the whole legal service); 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 better litigants without lawyers. ALSs are charity; and as such do not provide a traditional solicitor-client relationship, involving a fiduciary duty that requires the lawyer to act in the best interests of the client. Pro bono services providing but a small exception, and perhaps targeted legal services as well.

[7] For a discussion of economies of scale and other “economies” for the production of legal services without the use of support services, see; Professor Noel Semple, Legal Services Regulation at the Crossroads (Edward Elgar Publishing Ltd., 2015) at pp. 167-182.

Comments

  1. Ken,

    You make no mention of Pro Bono Ontario which serves more than 30k Ontarians through its Law Help Centres and it’s Hotline. It deserves your attention .

    Best,

    RONILEE

  2. Ronilee/Ron Manes: [A2J = access to justice]
    Pro bono is commendable of course, but it can be made available only for short, simple cases. It cannot be put forward as a significant response to the problem.
    All of the responses to the A2J problem are commendable and will always have a use, but they shouldn’t be used as an excuse for not trying to solve the A2J problem. And, they are charity and simplistic alternatives to the services of a lawyer, which (in the absence of an attempt to solve the problem) is an extreme insult to the population that pays for the justice system whereat benchers earn a far better living than do those taxpayers.
    Although targeted legal services are paid for by the client, there is no effort by law societies to make the whole legal service affordable.
    And except for pro bono and targeted legal services, the responses do not provide the solicitor-client relationship, which is the most important feature of a lawyer’s service to a client. Where else in the responses to the problem is there that relationship’s, fiduciary duty, law society oversight and discipline, professional insurance requirement, and CPD/CLE obligations for maintaining competence? (LegalZoom and the other commercial producers, provide merely a buyer-seller relationship.)
    And except for pro bono, the responses mean, “cutting costs by cutting competence.”
    Because benchers make no attempt to serve the purpose of their law societies, as it is defined in law, law societies should be abolished and replaced with permanent institutions of continuously developing expertise. The absence of that critically important expertise, means that law societies are like a government without a civil service, therefore they cannot govern, as is proved by the A2J problem’s long- standing existence and the continuing growth of its victims.
    Therefore, the best thing that could happen to the population, the courts, and the legal profession itself, would be the abolition of law societies ASAP.
    Please read the articles cited in my post today.

  3. In essence, the demise of law societies and the legal profession (as it is) will be the result of what may be described as sincere insincerity. Oh, well! That might be karma. However in the meantime what may be a crisis for the many remains an opportunity for the few — after all why waste a good crisis.

  4. The Law Society of British Columbia
    Financial Statements December 31, 2016

    Revenue

    Practice fees $19,894,479.00

    Trust administration fees 4,548,052
    Enrolment fees 1,297,850
    E-filing revenue 975,923
    Fines, penalties and recoveries 495,076
    Application fees 491,930
    Investment income (note 8) 434,776
    Other income 410,482
    Rental revenue 885,328
    —————————————–
    $29,433,896.00

    ——–

    BC Government
    Public Accounts 2015/16
    Consolidated Revenue Fund Detailed Schedules of Payments For the Fiscal Year Ended March 31, 2016

    LAW SOCIETY OF BRITISH COLUMBIA – $1,760,142.00

    https://www.lawsociety.bc.ca/Website/media/Shared/docs/publications/ar/2016-financials.pdf

    http://www.fin.gov.bc.ca/OCG/pa/15_16/CRF%20Detailed%20Schedules%20of%20Payments.pdf

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