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Canada’s Law Societies Need a National Civil Service

This post summarizes a full-text article with the same title on the SSRN, and refers to Fasken InHouse.

The Law Society of Ontario (LSO) is to have a bencher[1] election on April 30, 2019. We should vote only for those candidates that present solutions to the access to justice-unaffordable legal services problem (the “A2J problem”). Governments are now reacting without law societies.

Benchers have to be something more than the present part-time amateurs who bring to the job only the expertise of a lawyer to deal with major problems that are not legal problems, e.g., the A2J problem. Canada’s law societies need a national civil service. Then benchers could perform as does a government’s Cabinet ministers, and no longer have to be its civil service as well. Because benchers are also practicing lawyers, they are like an army trying to fight a war on two fronts. That’s the conflict of interest in law society management. You have to favor substantially one over the other, otherwise you risk failing on both fronts. That “bencher mentality” makes law societies very conservative institutions that never risk the unforeseen consequences that significant innovations bring.

And so a bencher wants close control of time to be sure of always being able to be a good lawyer, and doesn’t risk any kind of failure. Such risks are not consistent with the personal reasons why one becomes a bencher. After all, it’s almost entirely unpaid work. So career embellishment has to be the motivating force. As a result, law societies and benchers haven’t changed in their management structure and as to what they do since they were created.

So, who’s going to win the legal services market competition—is it going to be the “bencher mentality,” or the very aggressive large, well financed, corporate-commercial organization that’s looking to take over lawyers’ markets and competitors as LegalZoom has been doing since 2001? It has hundreds of thousands of U.S. customers. But people wish they could afford the protections of a lawyer’s solicitor-client relationship instead of having to depend upon merely LegalZoom’s buyer-seller relationship. But don’t depend upon the “bencher mentality” to protect lawyers’ markets.

Benchers’ traditions are not compatible with meeting such competition or sponsoring the support services method that all of the manufacturing of goods and services has found to be essential to the marketing of affordable products for all income levels of society. That method now produces everything, from the “parts industry” support services for making automobiles, to the infrastructure of mutually-interdependent support services by which all medical services are provided. No doctor’s office provides all treatments and all remedies for all patients as does a lawyer’s office try to do for all clients. Even though 200 years ago, doctors and lawyers had very similar work situations, they are very different now because, in the medical profession the innovation in the methods of doing the work to provide medical services never stops. In the legal profession it never started. No pressure—no innovation.

That’s why LAO LAW at Legal Aid Ontario (LAO) is the best centralized legal research unit (CLR unit) in the legal profession in Canada. By its ninth year of development it was producing 5,000 legal opinions per year, for the Legal Aid cases serviced by lawyers in private practice. They used it that enthusiastically. LAO LAW has been very successful for 40 years, because in 1978 Ontario government auditors demanded that LSO, as the manager of LAO at that time, stop allowing payouts for the alleged excessive legal research hours claimed in lawyers’ accounts. Why wasn’t CLR invented in a very well financed, large corporate-commercial law firm instead in the comparative poverty of LAO’s financing?[2] Because, no pressure—no innovation.

Similarly, that’s a major reason to have a civil service for Canada’s law societies—to establish and administer the necessary support services by which lawyers can provide affordable legal services. Otherwise, the legal profession has no way to effectively compete with the commercial producers of legal services. A civil service has these advantages that 21st century law societies in Canada badly need:

  1. they are permanent institutions—they don’t change with each election of benchers or governments;
  2. they are institutions of continuously developing expertise as to the functions and needs of an elected government—benchers are not;
  3. they shape their expertise by way of what they learn from their duty of constant expert surveillance as to public need and how to satisfy it—benchers don’t have the skill, the time, or the resources;
  4. because they are permanent, they can carry out programs requiring long-term development; development that is not interrupted or disrupted by elections—benchers aren’t capable of long-term development—they focus on their law practices or law department employers, and the next bencher election, but the most important services provided by governments are often the products of programs requiring long-term development;
  5. a civil service can be a national civil service, and now the major problems of law societies are common to all law societies in Canada, and therefore they are most effectively and cost-efficiently dealt with by national solutions and projects. CanLII and the Mobility Agreement are good examples of that.

Ryerson University in Toronto, and the University of Ottawa-Civil Law Section, can be that civil service. They have the experience and success in providing LSO’s Law Practice Program in both official languages. That would also make Ryerson University’s application to have a law school of its own, much more persuasive, in addition to its proposed A2J curriculum, plus a “civil service” curriculum. The means of financing this “national civil service for law societies” is, by using LAO LAW’s CLR technology to have CanLII provide a national, commercial legal opinion service. That service, and the civil services’ functions and funding are described in greater detail in these articles of mine:

(1) “Law Society Accountability for the Access to Justice Problem” (SSRN, December. 27, 2018, pdf) 33 pages; online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3291699.

(2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, pdf., Nov. 7, 2018, 153 pages); online: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627

(3) “Law Society Accountability for the Access to Justice Problem” (Slaw, November 28, 2018), at: http://www.slaw.ca/2018/11/28/law-societies-are-the-lynchpin-of-the-justice-system-a-very-obsolete-lynchpin/.

LSO’s Treasurer, Malcolm Mercer, wrote this recent, revealing post: “What Is the Mandate of the Law Society?,” (Slaw, January 2, 2019). That leading question can be answered and his article summarized in four words: preserve the “bencher mentality.” And therefore, nowhere does the Treasurer say that the law society will accept responsibility for the A2J problem or try to solve it. The Treasurer should be advocating that Fasken InHouse be the model by which the necessary support services could be provided, plus a civil service, be the route to affordable legal services and the end of the A2J problem. See the full-text of this article for an adequate explanation.

Or, replace law societies, and bring on socialized law. Lawyers wouldn’t be short of clients then, and they need not have any bad debt collection problems due to unpaid fees.

As to recent ex parte government activity without law societies: (1) the Ontario Ministry of the Attorney General’s website states in part (as viewed on January 7, 2019):

Ontario is improving the criminal justice system by speeding up the resolution of criminal cases.

Ontario’s plan will deliver new courtroom resources – including more judges, Crown attorneys, duty counsel and court staff – to focus on early case resolution and increase capacity in the system. It will also introduce innovative new programs to speed up decision-making at the bail stage and ensure low-risk vulnerable individuals have safe options for release in appropriate cases.

And, (2) Canada’s federal Department of Justice’s webpage explaining its huge Bill C-75, uses the word, “modernize” several times in several different ways in relation to its proposals to upgrade Canada’s criminal justice system. And (3) the Law Society of British Columbia is much concerned about recent legislated steps taken by the B.C. Government. See John-Paul Boyd’s Slaw post of December 7, 2018, “The Gloomy Future of Access to Family Justice in British Columbia: Outcomes of the Law Society’s 2018 Annual General Meeting.” And see also the Comments sections that follow that article.

So, the provincial governments of British Columbia and Ontario, and the federal government, are “modernizing” and taking action against the A2J problem, without law society participation, consent, or liking the results.

But where is the much more important law society counterpart effort to solve the A2J problem? More important because a law society is the lynchpin of the justice system. So it is that when the law society fails, the justice system fails. The population’s misery and the justice system’s institutional victims of the A2J problem prove that. A provincial or federal attorney general can have less impact on the quality of justice produced by the justice system than can Canada’s law societies. Governments control the money spent on the justice system. But law societies control the lawyers. As a result, far more effective it would be if each provincial A.G.’s website set out a plan for replacing its law society with a permanent institution of permanently employed experts, much more responsive to the A2J problem, and truly accountable in fact to the political-democratic process, i.e., to the electorate of the provincial and federal governments in fact, and not merely in law. Canada’s law societies rule the legal profession by law, but they themselves are not in fact subject to the rule of law. That’s government’s fault, i.e., not holding law societies accountable for the quality of their performance of their duties, e.g., s. 4.2 of Ontario’s Law Society Act.

For the whole of their existence Canada’s law societies have been only as effective as an elected government without a civil service. Such a government cannot govern. But that is to be expected. If a public institution is not held accountable by government for its performance, it doesn’t have to be competent. So it is that no law society in Canada has a program the purpose of which is to solve the A2J problem. And secondly, no law society has publically declared that the A2J problem is its problem, and that it is its duty in law to solve this problem. And thirdly, even though the A2J problem justifies their being replaced, our law societies make no effort to pool their resources, and retain the necessary expertise with which to formulate an attack upon the problem. They are not trying—merely creating a false appearance of an adequate response to the A2J problem. Such “window dressing” is sustained by: (1) providing the simplistic charity called, “alternative legal services” (ALSs)[3]; and, (2) promoting “apps,” (the application of electronic technology to legal services), which have no ability to make legal services affordable for middle and lower income people, i.e. affordable lawyer’s services that are more complex than just simple, routine legal services. That is very insulting to that majority that cannot afford lawyers’ services but have to pay for the justice system whereat law society benchers earn a better living than does that majority of taxpayers and voters. So, get rid of law societies! The insult to that majority of taxpayers is stated in the title of this article concerning such law society-provided ALSs: “I Don’t Want a Free Lawyer, I Want a Real Lawyer,” (the Lawyerist.com (November 14, 2016)).

That would also be the best thing that could happen to the legal profession itself, as well as for the availability of legal services for the population, and for relieving the court system of self-represented litigants. The court system doesn’t have the capacity to cope with the present high percentage of cases without counsel. If legal services were affordable, lawyers would be overwhelmed with work and clients. The legal profession would have a very positive economic future, and wanting the law schools to expand their enrolments. Instead, the opposites are true.

And, the Ontario A.G.’s website could then also set out a plan for converting Legal Aid Ontario to a staff system of lawyers’ services, replacing the present overly expensive judicare system of lawyers in private practice providing the Legal Aid-financed legal services. The Ontario and federal governments made the big mistake of taking LSO’s advice that a staff system would not provide the same quality of service, and it was not right that competing lawyers have the same master.[4] That would mean that the Crown should always be represented by lawyers in private practice, including for criminal prosecutions, otherwise, government-employed Crowns would be paid by the same government that paid the judges. And then the governments made an even bigger mistake by allowing LSO to be the manager of Legal Aid Ontario (then entitled, the Ontario Legal Aid Plan (OLAP)).

So how to preserve the law society with its present conflict of interest, i.e., honourably servicing both the public interest in publically-financed legal services, and also representing lawyers’ interests? The Clementi Report (U.K., 2004)[5] identified that as the chief cause of the poor performance of a justice system. And the McCamus Report,[6] and the similar report by Professors Zemans and Monaghan,[7] both identified LSO’s egregious conflict of interest which enabled it to manage Legal Aid so poorly for 30 years (1967-1997). Both reports stated (published in 1997), that LSO should not be the manager of Legal Aid because of the same two reasons that are now causing the A2J problem: (1) conflict of interest; and, (2) refusal to innovate. As explained to me by a bencher-member of LSO’s Legal Aid Committee, that intentional mismanagement was due to LSO’s knowing that Legal Aid would be the essential foundation of what LSO feared the most—socialized law, mainly because of the great success and popularity of socialized medicine in Canada.

Because law society management structure lends itself so freely and historically to such conflicts of interest, the Clementi Report recommended that the public interest function be removed from the law society.

The next LSO bencher election should adopt as its theme, accepting the challenge stated on the second last page of this book’s analysis of LSO’s first 200 years, by Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997, (University of Toronto Press, 1997), at page 339: “As the Law Society of Upper Canada approached the end of its second century, solid reasons could be found to doubt that it would complete its third.”[8]

So, to preserve what’s here and now in law society management structure requires at the least, bencher elections that have more meaning and sophistication than a high school election to the students’ council. For example, although the candidates’ campaign literature for LSO’s last bencher election on April 30, 2015, identified the A2J problem as a major law society problem, none of it described a plan or strategy for attacking the problem. The closest it got showed the wide spread ignorance of the problem’s cause, which is that there are no economies-of-scale in the practice of law, i.e., the “cottage industry method” by which the work is done to provide legal services is very obsolete.[9] That simplistic candidates’ literature said merely that the candidates would ask the government to fund Legal Aid better. That’s politically very unwise, given that the law society’s failure to try to solve the problem and thereby letting its victims increase in size and number without challenge, makes more difficult a government’s improving Legal Aid funding. That would require taking more tax money from that majority that cannot afford legal services and giving it to Legal Aid to better serve a comparatively tiny section of society, but doing nothing to give that majority affordable lawyers.

Benchers, like all lawyers, directly or indirectly earn their income from the justice system, which that “un-lawyered” majority of taxpayers and voters pays for. But those benchers do nothing to give that majority affordable legal services beyond the routine. Law society benchers appear to ignore how politically vulnerable they are. Just a very little investigative journalism, highlighted by the social media, could easily and quickly make Canada’s law societies, “fear the consequences of not changing, instead of fearing merely the lesser consequences of changing,” as they do now. But they won’t have the capacity to change significantly and fast enough to avoid public demands for their replacement.

Also, the big commercial producers of legal services are aggressively servicing that majority—LegalZoom, LegalX, RocketLawyer, etc. They are well on their way to replacing the general practitioner in the U.S.[10] And they have started the same process in Canada. And an equal threat to lawyers’ markets are the great many small recent ‘startups’ that provide various automated legal services, retail.[11] As the American experience proves, law societies are not capable of defending lawyers’ markets against such competition. Without much better management, the legal profession will be just another industry bypassed by technology. Lawyers won’t disappear, but the profession is on its way to greatly shrinking in per capita numbers. The general practitioner and small unspecialized law firm make up over half the membership of a law society.

Malcolm Mercer, LSO’s present Treasurer, (being its head officer), referred to such commercial threats to lawyers’ markets in his article, “What Can We Learn From the English ABS Experience After Five Years? (Slaw, March 5, 2018). The second last paragraph states:

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.

Such statements could be used to promote access by all law firms to alternative business structures (ABSs) investor ownership of law firms (up to 49%). But good law society management would make that unnecessary.[12]

And LSO’s current “Governance Task Force” recommendations as to reducing bencher numbers and management structure and titles, should be considered as to their affect on LSO’s ability to deal with the A2J problem. As knowledgeable and experienced commentators have emphasized for years, law society “governance” decisions should have more to do with the “public interest,” and be less given to “lawyers’ interest.” The full-text provides a fuller analysis.

And so there is a need for bencher election campaigns that include debates and online presentations, and in-depth campaign literature, all of which outlines ways to try to solve the A2J problem, and recognizes that law societies can no longer in good faith and conscience and competence justify their existence if they remain as they are. There should also be continuing professional development (CPD/CLE) “professional” hours/credits awarded for participating in a bencher election, and for attending the candidates’ debates online or in person. Thus we shall be much better informed and motivated to, “get out and vote.” In Ontario, it’s an election every four years—a term of office now requiring a closer look at the candidates than has so far been provided.

________________________

[1] “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.

[2] As to the very poor financing of Legal Aid Ontario, which uses a judicare model of providing government-funded legal services for very poor people, in R. v. Moodie, 2016 ONSC 3469, Nordheimer J. (now a Justice of the Ontario Court of Appeal), granted the applicant a “Rowbotham order” for state-funded counsel in regard to providing a defence to serious drug charges. His Lordship pointed out (para. 6), that the cut-off income level used by Legal Aid Ontario, for an accused person in the circumstances of Mr. Moodie, was half that which Statistics Canada specifies as being the “poverty line” for a single person living in a metropolitan area. He stated, “It should be obvious to any outside observer that the income thresholds being used by Legal Aid Ontario do not bear any reasonable relationship to what constitutes poverty in this country.” The origin of the “Rowbotham order” is the decision in, R. v. Rowbotham, 1988 CanLII 147 (ONCA), analysis at paras. 142-170, 41 C.C.C. (3d) 1, at 66-74.

[3] Examples of alternative legal services are, clinics of various types, self-help webpages, phone-in services, paralegal and law student programs, family mediation services, and court administrative procedures simplification projects, 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, 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 for the most part, charity, and 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.

See also: Ken Chasse, “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” (pdf; posted on the SSRN on, May 21, 2014).

[4] See: Professor emeritus Martin L. Friedland, My Life in Crime and Other Academic Adventures (The Osgoode Society for Canadian Legal History, 2007) at p. 114.

[5] The report of Sir David Clementi, (2004) Report of the Review of the Regulatory Framework for Legal Services in England and Wales.

[6] Professor McCamus is the author of the 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 implemented in the Legal Aid Services Act,1998 S.O. 1998, c. 26, s. 3(1) of which states: “A corporation without share capital is established under the name Legal Aid Ontario in English and Aide juridique Ontario in French.” The McCamus Report is summarized in the, Report of the Legal Aid Review 2008, at pp. 76-77, being the report of University of Toronto, Faculty of Law, law and economics professor, Michael Trebilcock, to the Attorney General of Ontario, on July 25, 2008 (“the Trebilcock report” which adopted all of the recommendations of the McCamus Report.)

[7] See also the report by Professors Monahan and Zemans, of Osgoode Hall Law School, From Crisis to Reform: A New Legal Aid Plan for Ontario (for the York University Centre for Public Law and Policy, 1997). They also concluded that LSO should not be the manager of Legal Aid. It states (at p. 2):

“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 LAO.). That’s an accusation of mismanagement.

[8] Among the reasons cited is, Osgoode Hall Law School Professor Emeritus Harry Arthurs’ article, “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?” Alberta Law Review, vol. 33, No. 4, 1995, page 800 (pdf.). And consistent with that same theme is Professor Arthurs’ article, “The Future of Law School: Three Visions and a Prediction,” (2014), 51:4 Alberta Law Review 705-716.

[9] See by Ken Chasse: (1) “Law Society Accountability for the Access to Justice Problem” (SSRN, December 27, 2018, pdf) 33 pages; (2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, Nov. 7, 2018, pdf.) 153 pages; and, (3) “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN, September 30, 2018, pdf.) 68 pages.

[10] For a description of the history and substantial success of LegalZoom, see: (1) Benjamin H. Barton, The Glass Half Full-The Decline and Rebirth of the Legal Profession (Oxford University Press, 2015), chapter 5, “LegalZoom and Death from Below,” pp. 85-103. The author is a professor of law at the University of Tennessee College of Law; and, (2) Raymond H. Brescia, “Uber for Lawyers: The Transformative Potential of a Sharing Economy Approach to the Delivery of Legal Services,” (2016), 64 Buffalo Law Review 745.

[11] See: (1) Suzanne Bouclin, Jena McGill, and Amy Salyzyn, “Mobile and Web-Based Legal Apps: Opportunities, Risks and Information Gaps” (SSRN, June 16, 2017); (2) Ken Chasse, “Artificial Intelligence: “Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 21, 2018); (3) University of Toronto Law Journal, vol. LXVI, No. 4, Fall 2016, “Focus Feature: Artificial Intelligence, Big Data, and The Future of Law,” pp. 423-471; and, (4) University of Toronto Law Journal, vol. LXVIII, Supplement 1, 2018, “Artificial Intelligence, Technology, and the Law,” pp. 1-124.

[12] Supra note 9.

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