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Mr. Attorney General, Please Help Lawyers Short of Clients

On March 20, 2918, I received an email message about Legal Aid Ontario’s (LAO’s) increases in financial eligibility for legal services.[1] But the majority of the taxpayers who fund Legal Aid Ontario, cannot afford legal services for themselves (except for very routine, simple legal services). Any legal service that takes any significant amount of a lawyer’s time is unaffordable to that majority of the population. And so, the majority of lawyers is short of clients.

Legal Aid’s funding is indeed very poor (see the tables of figures in that email message). In R. v. Moodie, 2016 ONSC 3469, Nordheimer J. (now of the Ontario Court of Appeal), pointed out that Legal Aid Ontario’s financial eligibility cutoff level was well below the poverty line. Therefore, for access to justice in Ontario, it is better to be very poor than to be a taxpayer of middle or lower income, paying for a justice system that you cannot make adequate use of because you can’t afford a lawyer.

But nothing is being done to pressure the Law Society of Ontario (LSO) to take action to bring about affordable legal services. LSO intentionally does not try to solve the problem. Consider: (1) it has no program to solve the problem of unaffordable legal services; (2) LSO has made no public declaration that the problem is LSO’s problem, and that it is its duty in law to solve this problem (see s. 4.2 of Ontario’s Law Society Act); and, (3) LSO has made no attempt to join with Canada’s other law societies to pool their resources and retain the necessary expertise with which to formulate a strategy to attack the problem.

In spite of the duties set out in s. 4.2, in a Comment dated July 27th, in response to one of my Slaw articles,[2] LSO’s Treasurer and CEO, Malcolm Mercer, stated:

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.

We cannot agree with that! LSO refuses to be responsible for the affordability of legal services. And so, no one is. LSO insists on remaining only as it was and did as a 19th century law society. As a result, elected benchers remain in place as very obsolete, simplistic, lend-a-helping-hand law society managers and practicing lawyers. Our law societies function like an elected government without a civil service. Such a government cannot govern, and neither can Canada’s law societies govern the unaffordable legal services problem.

It is a national problem requiring a national solution—a national emergency that should involve the federal as well as the provincial and territorial governments of Canada. If a person has a serious legal problem, he doesn’t live in a constitutional democracy if he cannot afford a lawyer, or qualify for Legal Aid’s assistance. The law is that voluminous, complex, and rapidly changing. People have never needed lawyers more. If law societies had been working at solving the problem, lawyers would not now be short of clients, and the legal profession would have a very bright and positive future. Instead, for most lawyers, the opposites prevail.

LSO should be replaced with an institution having fulltime management, and the necessary expertise. Until then, tell that majority of the population that cannot afford legal services that you are spending more of their tax money to help a comparatively tiny section of the population that qualifies for Legal Aid, but doing nothing to help that majority of taxpayers that finances the justice system, to have affordable lawyers. The present judicare system of legal aid in Ontario should be converted to a staff system of employee lawyers as exists in some of the other provinces. It is much less expensive, and can produce a more competent level of service because staff lawyers can be specialized to defend particular groups of offences just as Crown prosecutors are now specialized.

Law Society “alternative legal services” are merely a simplistic, “charity response” to the problem.[3] They do not provide a lawyer’s services for problems requiring any significant amount of a lawyer’s time. They are a large insult to the population that sees itself as paying for the justice system but is treated as being no more worthy and successful than to be the recipients of charity. For proof of that much resented insult, see this article: “I Don’t Want a Free Lawyer, I Want a Real Lawyer,” (the Lawyerist.com (November 14, 2016). That majority has lost the benefits of the lawyer-client relationship (except for the limited availability of legal services provided pro bono). They will be forced to use the online legal services provided by the commercial producers such as LegalZoom and RocketLawyer. They and their buyer-seller relationship will replace the general practitioner and the small, unspecialized law firm.

And the limited and misdirected support that LSO and your department are providing to the development of “apps” (applications of electronic technology to legal services)[4] has been authoritatively stated to be without any analysis as to its expected results.[5] Apps are being developed in a very diffuse manner, by many very big and little groups of automation specialists for retail sale, but without any regulation, and without any attempt to learn the exact cause of the problem. The most that such apps can produce is some improvement to the cost-efficiency of law offices; maybe. But such improvements have never by themselves made the production of goods and services affordable for all income levels of society. It’s like adding a motor to a bicycle when the solution requires a motor vehicle, i.e., a very different method of producing legal services is necessary. Obsolete methods of production cannot be embellished by “apps” so as to be rendered able to produce affordable goods and services.

All other manufacturers have moved to “support services methods” of production, (except where monopolies produce the goods and services). That is why no doctor’s office provides all treatments and all remedies for all patients the way a lawyer’s office does for all clients. And that is why the “parts industry” exists to supply the motor vehicle manufacturers with the necessary economies-of-scale that affordability for all income levels of society makes necessary. In contrast, there are no economies-of-scale in the practice of law. That is the cause of the problem.

The problem of unaffordable legal services is a law society-caused problem, capable of a law society-caused solution. But there is no law society program to solve the problem because governments do not hold law societies accountable to the political-democratic process. Law society benchers have long known that they are accountable only in law, but not in fact. As a result, they do nothing to resolve the conflict between being a good lawyer for one’s clients, and being a good bencher managing a law society. Because the major problems of law societies are no longer just legal problems, it is not possible to be both.

The same causes have long been operative in law society management, and were operative in its management of LAO. There are 3 authoritative reports that state that the Law Society of Ontario managed Legal Aid very inadequately from 1967 to 1998: (1) the McCamus Report of 1997, Report of the Ontario Legal Aid Review-A Blueprint for Publicly Funded Legal Services; (2) the report by Osgoode Hall Law School Professors Zemans and Monahan for the York University Centre for Public Law and Policy in 1997, entitled, From Crisis to Reform: A New Legal Aid Plan for Ontario (available in hard copy in LSO’s own library at Osgoode Hall); and, (3) University of Toronto law and economics Professor Trebilcock’s report, Report of the Legal Aid Review 2008, which adopted all of the recommendations of the McCamus report. As a result, LSO was removed as the manager by the Legal Aid Services Act, 1998, because of: (1) its conflict of interest (arising from its fear that LAO would become the basis of a government-sponsored socialized law program); and, (2) its refusal to innovate so as to keep Legal Aid well managed. As stated in the Zemans-Monaghan report (pp. 2-3 & 65-66):

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.]

Those are the same two causes of the present unaffordable legal services problem. It is making victims of the population, of the court system, overwhelmed with self-represented litigants, and of the legal profession itself. And wrongful convictions and guilty pleas must be increasing to what would be unconscionable levels if precisely known.

Law societies refuse: (1) to change their own management structure from its 19th century origins; and, (2) to sponsor the innovations to the method by which the work is done to produce legal services that create the economies-of-scale necessary for sustaining affordability. As a result, it is not possible for Canada’s law societies to solve the problem of unaffordable legal services. Mr. Attorney, what are you doing about such law society intransigence and neglect of statutory duties? For the solution to the problem of unaffordable legal services, read this article:

Access to Justice—Unaffordable Legal Services’ Concepts and Solutions (SSRN, November 8, 2018); online: < https://ssrn.com/abstract=2811627 >.

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[1] Clicking on the following link will produce, “Details on Legal Aid Ontario’s financial eligibility increase for 2018;” at: http://legalaid.on.ca/en/news/newsarchive/2018-03-20_eligibility-increase-for-2018.asp .

[2] The article is, “Law Society Policy for Access to Justice Failure,” (Slaw, July 25, 2019).

[3] 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.

[4] For example, the Attorney General of Ontario financed a competition among such developers of “apps” at Ryerson University’s “legal tech incubator,” the Legal Innovation Zone,” in Toronto, on March 23, 2018. See my description and commentary in this post: “Artificial Intelligence: Will It Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 21, 2018).

[5] See: Suzanne Bouclin, Jena McGill and Amy Salyzyn, “Mobile and Web-Based Legal Apps: Opportunities, Risks and Information Gaps” (SSRN, June 16, 2017, pdf.; and in the Fall 2017 issue of the Canadian Journal of Law and Technology).

Comments

  1. Dear Sir

    Few people may be able to afford lawyers and litigation, but few people among those who can can get adjudication.

    Yours Sincerely

  2. Hi Ken,
    You say “the majority of the taxpayers … cannot afford legal services for themselves (except for very routine, simple legal services)”. This is misleading. Such solicitor services as real estate and wills & estates are anything but “very routine” or “simple”. SOME real estate deals might go smoothly and not involve mortgages and other matters. SOME wills might be straight-forward. But to practice as a real estate and wills lawyer is to be constantly swimming in whirlpools beset by storms besieged by piranhas below. Yet, those services are very affordable, usually costing fees in the three figures from start to finish.

    It is litigation (dispute resolution) that is mostly not affordable. Yes, SOME litigation matters might be relatively routine and simple, but most are not. Try practising as a litigator. There is nothing routine and simple about the range of disputes you have to deal with, even if you specialize.

    Perhaps you mean that “very routine, simple” litigation matters are the only litigation services that are affordable. There, you may be right. But, as everyone knows, anything beyond very routine or simple litigation is horrifically expensive. The questions are Whose fault is that and Who can do something about it? The answers, almost entirely though not exclusively, are the Government and the Government.

    Throughout history, governments have loved to make getting before judges an hellacious journey designed to grind litigants down to either settling or giving up before they reach trial where the government has to supply the expensive-to-the-government corps of judges. Governments see the grinding as a way of not having to hire too many of those expensive judges and set up more courts with all the expensive infrastructure they entail. Like trying to stop the consumption of alcohol during prohibition, it is a backwards-telescope way of thinking, but no less common for being that.

    The Government could easily simplify the path from issuing pleadings to appearing before a judge by ridding the system of largely useless but very expensive steps such as mediations and pre-trials. Then, they can reduce the number of disputes that would end up in front of a judge by making Offers to Settle far more conclusive and dispository with serious consequences on parties and lawyers for failing to submit, or take, a reasonable offer. They can, as Europe did 50 years ago, take 95% of custody battles out of the courts by imposing a statutory 50/50 custody regime in almost all cases. There are all sorts of things that could be done. None of those steps can be taken by law societies as they lack the legislative means to implement them.

    Concurrent with the reduction in time lawyers would need to spend resolving disputes would be the need to reduce the swarms, hordes and sandstorm grains of students that the law schools are spewing out (6 times population growth for years) in their economic self-interests. Other areas are crying out for students and service providers. One of my clients who owns a great restaurant but has to spend tons of time cooking due to a lack of available chefs to hire, moaned to me, “Where are all the chefs?” I replied, “In law school.”

    As for technology, real estate lawyers make deep use of it. So do wills lawyers. We do it while protecting the titles and the financings, and the integrity of the will making and signing processes.

    The Law Society can suggest, even lobby, but there is little it can do to make fundamental and, therefore, meaningful, changes to a system created and nurtured by Governments that, short-sightedly in my view, believe that having seemingly endless and costly hurdles in the way of getting to a judge somehow saves the government money. In the end, they don’t, but the Government believes that they do. Hurdling the hurdles of litigation may pull a lot of hamstrings, but the race could be run in 10 metres not 100 metres and without so many barriers if the goal were to make the race shorter and not so painful to the participants.

    You criticize law societies for not doing more, but as you yourself point out, “It is a national problem requiring a national solution—a national emergency that should involve the federal as well as the provincial and territorial governments of Canada… The law is…voluminous, complex, and rapidly changing…” Who is responsible for that? Law societies pass no legislation, only bylaws that affect only legal services providers. Who can change the messy trend to more “voluminous, complex, rapidly changing” laws? You know the answer.

    As for your repeated criticisms that law societies run without “civil services” and are stuck in the 19th century, you forget that law societies have well-trained staffs. The Law Society of Ontario, which regulates 40% of the lawyers in Canada plus Ontario paralegals, has hundreds of staff delivering high quality work. Perfect? No. What is? But incalculably better and more efficient than any government entity that would replace it.

    You claim that a report found that the Law Society lacked that capacity or the willingness to keep administering legal aid. At the time legal aid was drop-kicked to the Government, I, as a voting bencher, opposed doing so because I believed it would become ever more bureaucrat-top heavy and would not be run very well. However, a sizeable majority of benchers were delighted to rid the Law Society of the endless headaches of running a “never enough” legal aid system.

    Who and what provides the funding for legal aid? The taxpayers and 75% of Law Foundation of Ontario revenues. And who has cut legal aid funding? Not the LSO which plays no role in taxing the public. It was the Government – the only entity with the requisite power – that cut funding. As for the legislative provisions that determine that 75% of LFO money goes to legal aid, the Government, and only the Government, could change that to, say, 95%, but then all the myriad other charities currently supported by the LFO would be in dire trouble. Having been a trustee of the LFO for 7 years from 1995 to 2002, I can tell you that the LFO funds many worthy and needed charitable endeavours and that that support is highly valued by the recipients.

    You claim “The problem of unaffordable legal services is a law society-caused problem, capable of a law society-caused solution.” With all due respect, that is just not so. And to claim that legal services can be delivered like auto parts shows a deep lack of understanding of what legal services are. They are highly (individual or corporate) person-oriented and problem-specific. They are not interchangeable like air filters and gas caps (though I wish the editors of SLAW would put a cap on some of the gas that has been published recently such as (1) the claim that the law societies, without a shred of legislative authority, can change the litigation system to bring the costs of it down in any material way, (2) the claim that the “LSO does not have full-time management” (huh?), and (3) the claim that opposing little cat feet, incipient tyranny is tyranny and that, if the real tyranny is dispensed with, somehow white male real estate lawyers will suddenly only do estate deals with other white male real estate lawyers. I mean, really.)

    A lot of very fine people are very well-motivated in their criticisms, and I commend them for the wellness of their motivations, but better analyses are needed so that constructive criticisms and sensible suggestions can have a better chance of succeeding.

    There is a ton that the Government could do to bring down the time and therefore the cost of litigation (the real barrier to access to justice and the one that dwarfs all other real and imagined barriers). I am not holding my breath that the Government will actually take the steps, but you never know.

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