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Law Society Policy for Access to Justice Failure

[Download the full text for this summary from the SSRN.]

Law societies appear to be powerless to serve the public interest by defending lawyers’ markets against three major threats:

(1) the access to justice problem (the A2J problem of unaffordable legal services for the majority of society that is middle- and lower-income people), which has left the majority of law firms short of clients;

(2) the commercial producers of legal services such as LegalZoom and Rocket Lawyer, now have millions of customers, who are now here in Canada beginning the same process of invading lawyers’ markets, along with the many small “apps” startups that provide automated legal services; and,

 (3) machine (artificial) intelligence that can remove the need for lawyers in the production of many legal services, bringing about a de facto deregulation of legal services markets, as well as enhance that human intelligence that is sufficiently specialized to be enhanced.

Law society actions and statements make very uncertain what they will do in regard to such threats—threats that could eventually eliminate many lawyers’ law practices, and could greatly reduce the membership of law societies, and therefore their size, as has happened in many industries.

Canada’s law societies have not yet recognized them as major threats to their ability to serve the public interest. If left unchallenged and unchecked, they will do away with (supersede) more than half of each law society’s membership, i.e., the general practitioner and the small, unspecialized law firm. What law society “Access to Justice Committees” are doing should be done, but it is very small in comparison with what should be done. It merely, in a minor way, tries to help the population learn to live with the problem, but not to solve the problem. The full text concludes with a detailed list of described topics of a law society policy statement that lawyer-members should demand of their law societies. The topics are:

1. Maintaining the use of the legal profession’s services by middle- and lower-income people

– The law society must formulate and make available a plan for making legal services more affordable for middle- and lower-income people and not merely help people live with the problem with alternative legal services which are merely simplistic legal services given as charity.

– If law societies were engaged in solving the A2J problem, there would gradually come to be more legal work available than lawyers could provide. Instead, most law firms are short of clients. But Canada’s law societies strive create merely the appearance of a sufficient response to the A2J problem. As a result, they will make victims of, and sacrifice most of their membership so that they need not change—sacrifice them by not challenging the incursions into lawyers’ markets by the commercial producers of legal services and the replacement of lawyers by machine intelligence.

2. Sponsoring the creation of support services and standardizing and packaging parts of lawyers’ work

– Given that all of the manufacturing of goods and services has proved that affordability of its products for middle- and lower-income people requires the use of external, highly specialized, high production volume support services, what is the law society’s policy in regard to sponsoring the creation of such support services?

– There are three methods to be used to bring about the production of affordable legal services by abandoning the legal profession’s present “cottage industry methods of production”: (1) creating true support services, i.e., highly specialized, high production volume services such as centralized legal research services; (2) arranging law offices in coordinated groups so that they may act as mutually-interdependent support services, i.e., each having its own particular specialty, thus creating an infrastructure similar to what the medical professions use to deliver medical services; and, (3) lawyers standardizing, packaging, and commoditizing parts of their work and services, instead of dealing with every legal service as requiring tailor-made (custom-made) services for each particular client.

– Without the use of external “parts suppliers,” it is not possible to create the economies-of-scale that affordability of one’s product for all income levels of society requires. A true support service is highly specialized in regard to every factor of production, and produces every one of its “parts” at high volume. It makes relatively few kinds of such parts and therefore has few factors and costs of production. That enables the huge revenue earned from high production volumes to be applied to those few factors of production. And it can maximize the economies obtained from the “fixed costs factor,” i.e., in every manufacturing situation, not all of the costs of production vary in proportion with the volume produced. Thus, the greater the volume produced, the greater the degree of specialization for every such factor that can be afforded, and the spreading of costs such that each unit produced pays for a diminishing share of total costs as production volumes increase. “Nothing is as effective at lowering costs as scaling-up the volume of production.”

And thirdly, helping lawyers to change their costly “cottage industry” methods of production by standardizing, systematizing, and packaging parts of their work and services so as to lower costs, instead of treating every service as having to be tailor-made and custom-made for every client.

3. Supporting the creation of a national civil service for all of Canada’s law societies

– Would the law society support the creation of a national civil service for law societies to carry out the creation and supervision of such support services, and arranging coordinating, integrated groups of law offices to act as interdependent support services for one another? It would provide many other services to Canada’s law societies; see: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, Nov. 8, 2018), subsection 10(2) “A civil service for law societies, and, section 11 “The services of a civil service for law societies” (20 kinds of service are explained).

4. Coping with the challenges presented by the commercial producers of legal services and by the disruption to be caused by machine intelligence

– What will the law society’s policy and practice be in regard to (1) challenging the commercial producers of legal services, and (2) potential disruption to the practice of law by machine intelligence? Shouldn’t the law societies engage the services of the Legal Innovation Zone (LIZ), at Toronto’s Ryerson University to aid general practitioners and lawyers in small, unspecialized law firms to adjust to such technology? Because the artificial intelligence startups that LIZ is fostering can enhance human intelligence or replace the human intelligence provided by lawyers, has the Law Society of Ontario (LSO) discussed with LIZ licensing such startups that are not managed by lawyers?

– The only defence is for the professions to be able to serve the public at least as well as those competitors do. But where is the necessary leadership? And so, each lawyer will be left to devise his or her own survival, if such is possible.

5. The government-law society split in responsibility in dealing with the victims of the access to justice problem

– What precisely are the law society’s and government’s duties in dealing with the unaffordability of legal services for middle- and lower-income people?

– For several years, law societies in Canada have urged governments to fund their Legal Aid organizations better. Should those governments fund legal services for all such victims of the A2J problem, i.e., for that majority of society that is middle- and lower-income people? As the size of that majority increases, so would the funding have to increase. If so, how would that be different from a program of socialized law? Is that what the law societies want?

– The judicare form of Legal Aid is a welfare program for lawyers (particularly so for criminal and family law lawyers in Ontario), because it is not the most cost-efficient way of spending the taxpayer’s money for such legal services provided by lawyers. What will LSO do if the government gradually phases out the judicare system of Legal Aid, in favor of a staff system or mixed system as is used in some of the other provinces?

– If law societies sought to solve the A2J problem, there would be more legal work available than lawyers could provide, instead of most law firms being short of clients. And, “judicare legal aid” would not be a necessary financial support for most criminal law and family law lawyers.

6. The creation of various types of independently-operating paralegal services workers

– Will LSO be creating more types of paralegal services workers who will be allowed to work independently of lawyers’ supervision? That is being done to avoid having to try to make lawyers’ fees more affordable, which would be far more effective. LSO is always motivated by that which is easiest to do and therefore does not involve LSO’s having to change its management structure, rather than being motivated to do what is required to solve a problem.

– A major argument being used to justify the creation of more types of independently-operating paralegal service workers is the alleged downward pressure on lawyers’ fees created by paralegal competition for clients. But in fact, the A2J problem itself creates more than enough pressure on fees. To be formally recognized as competitors of lawyers, contradicts expecting paralegals to be motivated to be on the look-out for cases that are beyond their services-jurisdiction. Having been designated as being specialist paralegals, such as LSO’s forthcoming “family law services paralegals,” there is a greater probability that they will attempt to deal with problems that should be dealt with by lawyers.

– LSO has been regulating paralegals for more than ten years. There is no sign of such “paralegal competition” creating downward pressure upon the size of lawyers’ fees.

– We should support the creation of paralegal services workers as a way of reducing lawyer’s fess, but all paralegals should work under the supervision of lawyers. A single paralegal can work for a group of solo or small law firms. The several present means of communication make that possible.

7. Statistics as to the decreasing numbers of lawyers in private practice as a law society responsibility

– In order to keep its members informed as to the fate of lawyers’ markets and the changing position of the profession in society, the law society must keep detailed, timely, and accessible statistics as to: (1) the per capita number of lawyers in private practice; (2) the number of lawyers in solo and small firm law practice; and, (3) the per capital number of lawyer-members of the law society.

8. The obsolescence of the “bencher concept” of law society management by practicing lawyers

– Law societies’ ability to serve the public interest by dealing effectively with the A2J problem, and other threats to lawyers’ markets is prohibitively limited by the “bencher concept” of management. Benchers, being practicing lawyers, have neither the time nor the expertise necessary.

– Law societies cannot continue using only the bencher as their management unit. A bencher is only a part-time amateur; not a career-oriented expert law society manager. Benchers constitute an elected government without a civil service.

– Because bencher-management provides a very limited ability to cope with law societies’ major problems, they resist change. As a result, we must view everything that law societies do as being aimed at not having to change their management structure and what they do, while everything else in society must change.

9. Alternative business structures (ABSs) that allow law firms to become investment properties

– What is LSO’s policy as to the expansion of the exceptions to the current prohibition against alternative business structures’ investment ownership of law firms?[1] A national civil service could provide the expert advice that would enable such investment to effectively aid lawyers to cope with the access to justice problem.

10. The members of law societies fall into two groups having conflicting interests on major issues

– There are in fact, two legal professions having different interests: (1) in-house lawyers, including lawyers who work for government, and lawyers who work in the big law firms, and lawyers who have specialized law practices; and, (2) the general practitioners, and lawyers in small, unspecialized law firms.

– Bencher elections favor the election of benchers from the big law firms because of a combination of low turnout (participation) of voters in such elections, and lawyers in the big law firms being able to produce a large block of votes for candidates from those big law firms.

– On some issues the “two professions” have conflicting interests such as the creation of ABSs (alternative business structures) allowing law firms to become investment properties. Also, it has long been believed that lawyers from the big law firms are treated more leniently when disciplined because of the disproportionate influence that the big law firms have upon law society administration.[2]

11. The purpose of a demand for a detailed law society policy statement concerning these issues

– This request for such a policy statement is for notice as to how the law society will, if at all, attempt to meet the threats to lawyers’ ability to serve the public interest. The contents of such a policy will alert lawyers as to when and how they should plan to endure the consequences of the major forces that are threating to replace them.

12. The consequences of law society neglect of these topics, being topics that require law society action and reformation

– If this analysis is deemed too radical, difficult, unnecessary, etc., then members must now contemplate their fate, i.e., the law society will remain unable to protect the markets now served by the majority of lawyers, which will gradually be taken over by other services, particularly online, commercial legal services. The legal profession will drastically shrink in size, prestige, power, and purpose in society as a whole.

– That again, is why a national civil service for law societies is necessary. Without it, law society administration is no better than that of an elected government without a civil service. Such a government cannot govern which in the case of law societies is becoming increasing clear and damaging.

– The legal profession will become a profession of specialists and a profession that has lost its connection with middle- and lower-income people.

13. The Law Society of Ontario’s (LSO’s) $1.2 million public relations campaign—purpose and relevance please

– What is the relevance of LSO’s current $1.2 million public relations campaign to the issues and items in this list of policy statement requirements? What are LSO’s PR campaign’s purposes?

 

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[1] See LSO’s ABS website as to its “community service organizations” exception to its prohibition of alternative business structures investor ownership of law firms. And see also, Ken Chasse, “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner,” (SSRN, September 30, 2018).

[2] See: Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (University of Toronto Press, 1997), at pp. 309-340.

Comments

  1. A few comments on the wide range of topics addressed in this column.
    Mr. Chasse starts his column with the claim that “Law societies appear to be powerless to serve the public interest by defending lawyers’ markets against three major threats”.
    This is a problematic framing of the role of the Law Society which ought not to be in the business of “defending lawyers’ markets”. Rather, the principal role of the Law Society under the Law Society Act (Ontario) is to (i) determine what legal services should appropriately only be delivered by licensees and the appropriate scope of practice and qualifications of those licensees and (ii) seek to ensure appropriate professional competence, conduct and capacity of licensees.
    The role of the Law Society is not to “deliver access to justice”. That is the responsibility of the government and the courts. The Law Society is to regulate legal services so as to facilitate access to justice. This presumably means determining who may provide legal services and determining the required competence and conduct of licensees with access to justice being a central consideration.
    Mr. Chasse assumes that the law societies are not grappling with the technological delivery of direct to consumer legal services. That is not correct. The question is a hard question that deserves careful consideration. It would appear that there are legal services that cannot be cost effectively delivered by lawyers and paralegals that may be provided through technology. Should that delivery be prohibited? Should that delivery be regulated and, if so, should regulation be by a professional self-regulator? How should the Law Society encourage technological innovation by the professions without attempting to manage legal practices.
    In an interesting discussion, Mr. Chasse expresses his view that the small firm lawyers and law firms serving ordinary people should be restructured by consolidation and specialization. It is not obvious to me that this is right. If this is the better structure, I’m not sure why smart lawyers in the real world don’t organize themselves that way. In any event, I’m not sure that any regulator has the authority or the wisdom to require the market reorganization that Mr. Chasse thinks is the better way.
    Mr. Chasse also argues that access to prepackaged legal research is a material problem in practice and that the Law Society ought to get into the business of being a provider of standardized research. While Mr. Chasse calls on his personal experience in the Legal Aid system as a creator of prepackaged legal research in aid of his claim, I’m not so sure that this is a material reason for inefficiencies leading to lack of access to legal services. I think it far more likely that the principal problem is undue complexity of the legal system that requires more time and effort to effectively navigate than is affordable in context. I doubt that legal research is a big part of the cost of legal services. In any event, one would think that some bright lawyers or entrepreneurs could package and sell such a product if Mr. Chasse is correct. Finally, I’m not so sure that the Law Society ought to assume the role of being a provider to legal research products to lawyers and paralegals.
    Mr. Chasse argues for a national “public service”. He does so on the assumption that the law societies’ mandates are fulfilled by inexpert and unsupported volunteer benchers. This ignores the reality that benchers are advised in their policy and governance work by expert policy staff and that the law society programs and services are managed and delivered by skilled and experienced management and staff. And, for better or worse, professional regulation is a matter of provincial responsibility in Canada.
    Mr. Chasse’s view of what the law societies should do is a radical change from the role assigned to them. It is not so clear that the law societies can or should do as Mr. Chasse suggests.

  2. Law Society of Ontario (LSO) Treasurer Mercer’s reply to my post above, amounts to stating: (1) the law society will not take responsibility for the unaffordability of legal services problem. Does he want the government to take responsibility for it? If governments did, there would be socialized law programs across Canada. Or does he say it’s nobody’s problem except its victims’ problem?
    (2) He repeatedly uses the phrase, “I’m not sure that…” as a reason for being unwilling to investigate and try what might appear to be “radical” solutions now, which shows a lack of adequate concern for the great misery the A2J problem (access to justice problem) is causing the majority of society, and the damage being done to the justice system, particularly so to its courts system, lawyers, and reputation.
    The problem has been ignored by law societies for decades. For example, the Minutes of LSO’s 2005 Convocation refer to the problem as being in a “crises” state. But LSO has made no attempt to learn its cause and solve the problem. Instead, it merely provides programs such as simplistic “alternative legal services,” to help that majority learn to LIVE with the problem. So be honest, tell that majority that the lawyer-client relationship is no longer available to them (pro bono being a small exception).
    (3) If law societies do not see defending lawyers’ markets as part of their duty to “serve the public interest” as to the availability of legal services, they should be abolished, not only to protect the public interest, but also the court system, and the legal profession itself. The majority of lawyers is short of clients due to the A2J problem.
    LSO has been very irresponsible as to the A2J problem. It got the Ontario government to adopt a “judicare” system of legal aid (operative from Wednesday, March 29, 1967), even though a staff-public defender system would be much less expensive, and on average would deliver much more competent legal services because staff lawyers can be highly specialized, as are Crown counsel now specialized to prosecute particular kinds of offences, trials, or appeals.
    “Judicare” is therefore a welfare program for practicing lawyers, which LSO misrepresents as functioning only because of the charity of lawyers’ tolerating an inadequate tariff of fees. If instead, LSO had began decades ago to solve the A2J problem, its members would not need such a welfare program. The legal profession would now be overwhelmed with work and affordable clients. If Legal Aid Ontario converted to a staff system now, most criminal law and family law lawyers’ law practices would not be financially viable.
    LSO, by always minimizing its responsibility, leaves its members very vulnerable, as are all recipients of government charity.
    To understand why law societies always take such minimal responsibility for justice system problems, examine everything that they do as being intensely motivated by retaining the “bencher” as their unit and concept of management. That makes necessary Treasurer’s Mercer comments. But in fact, all of the problems of the justice system, (that are not caused by inadequate government funding) are caused by retaining the bencher as the law societies’ manager. Benchers’ only pressure to cope with is to be good practicing lawyers, which prevents them from adequately fulfilling the purpose of a law society to make legal services adequately available. Our law societies are managed by part-time amateurs, and therefore operate like a government without a civil service. So a “minimal involvement” attitude is necessary to maintain such incompetent management.
    Governments and law societies are tacit co-conspirators that enable: (1) law societies to exist above the law, accountable in fact, to no authority; and, (2) governments to have as little to do with the justice system as possible because of the fixed belief that, “there are no votes in justice,” so they legislate (e.g., most recently, Bill C-75), instead of providing adequate resources by way of enough judges, courts, prosecutors, and legal aid funding. But that costs money that produces few votes, but only because they have not educated the public as to the importance of the justice system to everyone.
    Solving the A2J problem, and all justice system problems, require the abolition of both such law societies and governments.

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