Law Society Accountability for the Access to Justice Problem

[See the full text article for this summary on the SSRN, using the same title]

Law societies are not trying to solve the A2J problem, but instead provide “alternative legal services”[1] that merely help that majority of the population that cannot afford legal services learn to live with the problem. That is inevitable because of the operative concept of a bencher[2] and the institutional culture of our law societies, i.e., they do only that which is compatible with that concept and with what they have always done, which does not include the affordability of legal services. Because the A2J problem is so very damaging and increasingly so, the necessary thing to do would be to obtain the help of government in solving it.

The 19th century bencher gives of his/her time with almost no compensation, to share in the management of the law society, in exchange for an opportunity to embellish one’s career. In the context of the 19th century, it’s a fair trade. Being a bencher, along with some pro bono free legal services for the poor, can thereby fulfill the “community service” requirement for becoming a judge. And being able to associate with the other benchers and with senior and influential colleagues, can definitely help one’s career, reputation, and perhaps the fortunes of one’s law practice. A concept of long established and venerated tradition of lawyers, representing communities throughout their province or territory, sharing in the work of managing the law society.

But in the 19th century all law society problems and duties were within the expertise of a lawyer. Now they are not. The major problems of law societies require other kinds of expertise, but law societies don’t retain them; money being the reason. So they choose to ignore them, or merely create the appearance that they are dealing with them. And so the justice system is failing badly.

Law societies are the justice system’s lynchpin because their performance seriously affects the performance of all of its other institutions. For example, their failure to deal adequately with the A2J problem has: (1) victimized the majority of the population, which is its middle and lower income people; (2) overwhelmed the courts with self-represented litigants—for years, judges have been warning that their courts are grinding to a halt because of the added load put upon inadequate court and judicial resources; (3) left the majority of lawyers in private practice short of clients and therefore in financial difficulties; and, (4) made funding Legal Aid organizations adequately, politically very unwise. And, (5) law societies have a power of approval of the curricula of law schools who want their graduates to be accepted as candidates for licensing as lawyers. That power has begun to cause some friction as to, for example, a request that law schools produce “practice-ready graduates.”[3]

And such is the power structure that maintains law societies as fixed and unchanging while most other organizations in society must accept the discomfort of constant change. As a result, the whole of the health and performance of the justice system in Canada is dependent upon the efficacy and performance of the presently operative 19th century concepts of a bencher and a law society. Canada’s law societies are free to be “the obsolete lynchpin of its justice system.”

So it is that the expertise of law society benchers is merely that of part-time amateurs, who are unaccountable in fact, to anyone. “Part-time” because they are practicing lawyers.[4] “Amateurs” because they bring to the position of bencher only the expertise of a lawyer. And so our law societies are like an elected government without a civil service. Such a government cannot govern, as is proved by the existence and persistence of the A2J problem. So, Canada’s law societies should create a permanent civil service with which to have the necessary expertise to learn and eliminate the cause of the A2J problem, and the many other major problems of Canada’s law societies.

I too want to preserve the present infrastructure of our law societies. But, its benchers should operate as does the Cabinet of an elected government, maximizing its use of all of the expertise and capacities of its civil service. Now instead, law society benchers are both the Cabinet ministers and the law society’s civil service. But they have only the skills of a lawyer and they work very much only part-time. As a result, our law societies have lost their competence because the major problems of law societies are no longer within the expertise of lawyers (licensing of people to be lawyers being an exception). And as result, the A2J problem is seriously damaging the population, the justice system, and the legal profession, etc. Canada’s law societies need a national civil service to serve all of its law societies. Otherwise, they need to be replaced; abolished. Because of the great damage being caused and growing, the A2J problem should not be allowed to continue without an expert and sincere attempt to solve it.

The cause of the A2J problem is that there are no economies-of-scale in the practice of law. That is so because lawyers are still using the same “cottage industry” method of producing legal services that they have always used. But all other manufacturers of goods and services have evolved their methods of production to use “support services” methods because they produce the large economies-of-scale that affordability requires. As to how CanLII could be enabled to finance such a civil service and its many functions in dealing the major problems of law societies, see: Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, November 8, 2018, pdf.), sections 9-11.

Because it involves many millions of people, the duty of a bencher owed to the population to make legal services adequately available is far more important than is the duty owed to one’s clients. But there is insignificant pressure to perform that duty because governments choose not to hold law societies accountable to the political-democratic process.[5] They regulate the legal profession by law, but they themselves are not subject to the rule of law. But, no longer is it possible to be both a good lawyer and a good bencher. Therefore the ethical thing to do is to resolve that conflict of interest, but law societies don’t. They leave its victims to become bigger and more numerous victims.

As a result for example, the major problems of the justice system, such as the A2J problem, are caused by law societies and governments tacitly agreeing to fail to serve the justice system adequately. Governments: (1) fail to make law societies accountable to the political-democratic process by challenging their performance as to making legal services adequately available (i.e., competently provided, ethically provided, and affordably provided, as is required by laws that establish the powers and duties of law societies, e.g., Ontario’s Law Society Act, s. 4.2); and, (2) governments do not provide sufficient resources for the justice system to operate adequately (e.g., there are never enough courts, judges, prosecutors, and Legal Aid funding); see: “No Votes in Justice Means More Wrongful Convictions” (SSRN, June 10, 2016, pdf.). And law societies fail to try to solve the unaffordable legal services problem, which is now devastating the justice system. If this government-law society tacit agreement were put into words, it would say, “You don’t bother me, and I won’t bother you.” Such an agreement would violate the Canadian Charter of Rights and Freedoms in several ways.

In 1997, the Law Society of Ontario (LSO, but at that time entitled, “the Law Society of Upper Canada”) was removed as the manager of Legal Aid Ontario (LAO) because of: (1) conflict of interest; and, (2) refusal to innovate to keep LAO well managed.[6] Most significantly now, those two reasons are the very same two reasons why the present A2J problem exists, and that is because they are inherent within the concept and use of the position of bencher—the conflict that now exists between being a good lawyer and being a good bencher.

The on-going significant and necessary innovation that continuously competent management requires always threatens unanticipated problems. That fact conflicts with a bencher’s worries as to having enough time to be a good lawyer. So a bencher doesn’t want to get involved in anything over which one doesn’t have complete control over time and consequences. Substantial innovations might fail. That could be costly, hurt one’s reputation, and require unplanned-for time for repairs and alterations. One doesn’t become a bencher to endure such consequences. Problems like the A2J problem are avoided to ensure being a good lawyer, which wins out over doing what is necessary to also be a good bencher. That’s the conflict of interest.

As a result: (1) the necessary innovation doesn’t happen; which means that, (2) law societies and the concept of what a bencher is and does remain unchanged; which means, (3) law societies are now very conservative institutions that resist innovation; in other words, (4) no longer is it possible to be both a good lawyer and a good bencher who can make legal services adequately available as is required by the laws that establish the powers and duties of law societies.[7]

All of Canada’s law societies have inadequately responded to the A2J problem. Consider: (1) no law society has a program, the purpose of which is to solve the A2J problem; (2) nor has any made a public declaration that the problem is its problem and that it is a law society’s duty in law to solve this problem; and, (3) joined with other law societies to attack this national problem, being the worst of its kind in the history of Canada.

Therefore the necessary thing to do is to resolve that conflict of interest. But law societies don’t. They leave A2J problem’s victims to become bigger and more numerous victims.

And so the many times that judges have “come off the bench” to make urgent requests of lawyers and law societies to do something effective to ease the damage being done to the population and its justice system, have had no effect.[8] And all of the law society “access to justice” committees, which have existed for several years, have had no effect.

The A2J problem has created an economic vacuum in regard to servicing the need for legal services. That vacuum is being filled by large commercial producers of legal services, plus the great many small “start-ups,” applying electronic technology to provide legal services (“apps”), for direct-to-consumer retail sales.[9] In the U.S., the commercial producers, such as, LegalZoom, RocketLawyer, and LegalX are well on their way to replacing the general practitioner, i.e., replacing more than half of a law society’s membership. The American commercial producers’ advertising by LegalZoom etc., is sophisticated, and now appears on cable TV. Their target is clearly the routine legal services market, which are the lawyers’ services that middle and lower income people can still afford. They are here in Canada and the same process has begun. If law societies cannot defend this market, the legal profession is yet another industry being by-passed by technology.

LSO’s Treasurer, Malcolm Mercer, has provided corroboration of the serious threat that the commercial producers of legal services pose to the legal profession, in the following paragraph from this article, What Can We Learn From the English ABS Experience After Five Years? (Slaw, March 5, 2018):

Of course, things don’t necessarily stay the same. It is clear that technology continues to advance significantly. There is ample evidence that unlicensed direct-to-consumer legal services are being provided in Canada and that the volumes are likely to increase especially as technology evolves. It seems logically to follow that this will lead to competitive pressure on existing legal practitioners who will require access to external capital to respond effectively. There is a credible argument that limiting access to external capital will handicap existing practices against new entrants.

But better financing, when applied to an obsolete method of production cannot produce any affordable goods or services because it cannot create the large economies-of-scale that affordability requires. As a result of an obsolescent production of legal services, there are no economies-of-scale in the practice of law. That is why the manufacturing of goods and services has moved to “support-services methods” of production. Better financing of obsolete production methods is like adding a motor to a bicycle when the solution requires a motor vehicle.[10]

And law societies don’t sufficiently respect their political vulnerability. That majority that cannot afford legal services is also the majority of taxpayers and voters. They pay for the justice system whereat all lawyers, including benchers, directly or indirectly earn their living—a much better living it is than that of that majority of taxpayers and voters. Therefore, it is insulting to treat them as being no more successful and capable than to be treated as worthy of being only charity recipients, which is what law society “alternative legal services” do.[11] People want, “their lawyer, not a free lawyer,” because it is believed that, “you only get what you pay for; if it’s free, how can it be any good?”[12]

And for that majority that cannot afford legal services beyond routine services, it makes the Canadian Charter of Rights and Freedoms but a “paper tiger,” and makes weak the claim that we are a constitutional democracy in fact, and not just in law, for all of Canada’s residents. Such arguments can provoke demands for the replacement of law societies with permanent agencies of required expertise that are adequately responsive to the A2J problem and accountable to the political-democratic process. Because they won’t try to solve the A2J problem, abolish law societies and provide some form of socialized law. There would then be no shortage of clients and no unpaid fees collection problems for services thus state-funded.

As lawyers, judges, and law students, we shouldn’t have to endure the fact that we will go through the rest of our careers in the justice system living with the consequences of a severely economically depressed legal profession. If legal services provided by lawyers were affordable, the opposite would be true, and there would be no commercial producers of legal services. And the per capita number of lawyers in private practice would not be shrinking as it has been for many years.[13] It’s all due to bad law society management of the legal profession. A 19th century law society cannot be competent in a 21st century world and its justice system, even though Canada’s benchers are very diligent and dedicated.

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[1] 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, arbitration and mediation for dispute resolution, public legal education information services, 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. They are simplistic, charity services, and do not provide a traditional solicitor-client relationship, involving a fiduciary duty (pro bono being a small exception).

[2] “Benchers” are the lawyer-members of a law society elected by all of its lawyer-members to be the law society’s managers for a fixed term, plus a small number of lay benchers who are to represent the public interest. In addition, there are, “benchers by virtue of their office,” and “honorary benchers.” See for example, the province of Ontario’s Law Society Act, ss. 10-12, and the definition of “bencher” in s. 1(1).

[3] See these articles by Harry Arthurs, Professor Emeritus, Osgoode Hall Law School, at York University, Toronto: (1) “The Future of Law School: Three Visions and a Prediction,” (2014), 51:4 Alberta Law Review 705-716; and, (2) “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?,” (1995), 33:4 Alberta Law Review 800.

[4] The announcement for LSO’s last bencher election (April 30, 2015), stated (third paragraph), that on average, benchers contribute 31 days per year to their bencher work. And an online seminar shortly thereafter, revealed that the first 26 of those days are unpaid, and thereafter a $500 per diem is paid. And so, the position of “bencher” is still almost totally charity work—“pitching in” because it helps one’s career.

[5] There is provision by which law societies can be held to be more accountable to the political-democratic process. For example, section 13(1) of Ontario’s Law Society Act states: The Attorney General for Ontario shall serve as the guardian of the public interest in all matters within the scope of this Act or having to do in any way with the practice of law in Ontario or the provision of legal services in Ontario, and for this purpose he or she may at any time require the production of any document or thing pertaining to the affairs of the Society.

[6] See these 3 authoritative reports, which examined in-depth the management of Legal Aid Ontario (LAO):

(1) the report by Professor McCamus of Osgoode Hall Law School in 1997, Report of the Ontario Legal Aid Review-A Blueprint for Publicly Funded Legal Services, recommendation 79 of which states that, “governance of the legal aid system in Ontario should be transferred from the Law Society to an independent statutory agency.” That recommendation was implement by the Legal Aid Services Act, 1998, S.O. 1998, c. 26;

(2) the report by Professors Zemans and Monahan, also of Osgoode Hall Law School at York University, in their 1997 study for the York University Centre for Public Law and Public Policy, From Crisis to Reform: A New Legal Aid Plan for Ontario (Toronto, 1997), also recommended that LSUC (now LSO) should be removed as the manager of LAO (at pages 2-3, and 65-66), stating: “At the same time, we do not believe that the Law Society has demonstrated the capacity or the willingness to undertake the fundamental restructuring of the Plan that we believe to be necessary if Ontario is to achieve the maximum benefit from the still-considerable funding that is available for legal aid in this province.” (The “Plan” being the Ontario Legal Aid Plan (OLAP), the predecessor of Legal Aid Ontario before the Legal Aid Services Act, 1998); and,

(3) the “Trebilcock report,” Report of the Legal Aid Review 2008, being the report of University of Toronto, Faculty of Law, law and economics professor, Michael Trebilcock, to the Attorney General of Ontario, which adopted all of the recommendations of the McCamus Report.

[7] See: “No Longer Is It Possible to be Both a Good Lawyer and a Good Bencher” (Slaw, May 29, 2017).

[8] Beverley McLachlan, Canada’s previous and longest serving Chief Justice of Canada. Until she retired on, December 15, 2017, she made many such speeches, going as far back as at least 2007. See her address to the Council of the Canadian Bar Association on August 11, 2007, quoted in the Report of the Legal Aid Review 2008 (the Trebilcock Report), at page 76.

[9] As to such retail sales by such “apps” in Canada; see: (1) Suzanne Bouclin, Jena McGill, and Amy Salyzyn, “Mobile and Web-Based Legal Apps: Opportunities, Risks and Information Gaps” (SSRN, June 16, 2017, pdf.); and, (2) Ken Chasse, “Artificial Intelligence: “Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 21, 2018).

[10] Law book companies could be considered to be a support service. The Fasken law firm’s “Fasken InHouse” is similar, but it isn’t yet producing at the high volume of a true support service.

[11] 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, arbitration and mediation for dispute resolution, public legal education information services, 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. They are simplistic, charity services, and do not provide a traditional solicitor-client relationship, involving a fiduciary duty (pro bono being a small exception).

[12] See: “I Don’t Want a Free Lawyer, I Want a Real Lawyer,” the Lawyerist (November 14, 2016).

[13] See: (1) Colin Lachance, “Law’s Reverse Musical Chair Challenge” (Slaw, June 16, 2016); (2) the Law Society of Ontario’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); and, (3) Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (University of Toronto Press Inc., 1997) at p. 380, as to the decrease in the number of lawyers in private practice in Ontario between 1973 and 1982.