My inbox fills up each day with messages from members of the public (NSRLP has an active public email, answered by dedicated NSRLP research assistants, but many SRLs write me directly).
It is still not well understood that the vast majority of SRLs are still looking for and extremely desirous of legal help. In my 2013 study, this figure was 86%. Similar results are reported by studies in the US, England and Wales, Australia, New Zealand, and Northern Ireland. All these studies also found that by far the most significant reason for self-representation is lack of funds, or exhaustion of available funds (half the SRLs you meet).
If your mind is going to that defiant SRL you met last week in court who told you they didn’t want a lawyer, please think about this for a minute.
How many people (who are already feeling powerless) will admit to being short of cash? Is defiance really a reliable indicator of financial viability in the face of legal bills? And how many people who have already spent $50,000 on legal services and now have to self-represent because they are out of funds do you suppose will think that this was good value-for-money?
How is this serving the public interest?
The meta-message that underlies the calls for help that come in every day to the NSRLP is how can we trust the legal profession to serve the public interest – the so-called “bargain of self-regulation” – when up to 80% of people come to court without lawyers because they are unable to afford, or continue to afford, to pay for legal services?
Or when the legal profession in Ontario and British Columbia continue to stall and block the provision of affordable services for individuals other than lawyers? Chastising the public as if it is a small child and the legal profession its parent: “why know better, trust us.”
When the possibility of self-interest in blocking competition is obvious to anyone with a pulse.
How does the profession serve the public interest when it is exclusively responsible for investigating complaints against lawyers and disciplining them – and when information about the outcomes of complaints brought against lawyers by members of the public is hidden from public view? Isn’t this also a conflict of interest, I am asked over and over again?
Ordinary Canadians everywhere understand that the emperor has no clothes here. They can see an inevitable tension and likely conflict between the role of the individual lawyer to uphold their clients’ interests, on the one hand, and as protector of the public interest, on the other. It’s time to accept that this is how most members of the public think about this issue.
Consumers of professional services in the Internet age no longer accept the conflict of interest that is manifest in allowing powerful monopolistic professions to regulate themselves.
When the emails ask me – how can this be OK? – I do not know how to respond other than to say, it is not. Because I now find it to be indefensible.
In England & Wales and in Australia (especially in Queensland and New South Wales), similar public outrage at exactly the same things has produced a range of experiments with alternatives to self-regulation.
What Richard Devlin and Porter Hefferman picturesquely described as “rumblings in the peaceable kingdom” of the Canadian legal profession back in 2008, have now reached the a sustained roar of public disapproval. It is well past time to act.
A public belief in the legal profession to regulate itself in a way that is fair and transparent and protects public interests rather than protecting their own will never return. This is no longer fixable.
I no longer see a feasible alternative to or a plausible argument for the continuing self-regulation of the legal profession. I would encourage readers of this blog to join me in declaring this publicly.
I feel passionately about the profession I have given my working life to. There are many wonderful lawyers out there. I know lots of them. Their reputation too is being trashed by our institutional myopia and defensiveness on this issue.
Lawyers who truly care about the future of their profession should declare their willingness to look at alternatives to self-regulation.
What replaces self-regulation and would it be any better?
This question – along with cries of “traitor”! – has often closed down discussion in the past, but cannot be allowed to paralyze us any longer.
The end of self-regulation does not mean it never worked, or that improved models of self-regulation (for example the addition of an independent Commissioner here and there) might not make marginal differences.
But marginal differences are not enough. We need to rethink our assumptions and reach for new ideas – and there are lots out there. We need empirical data that tests different models, including but not limited to joint court/ profession regulation, court/government/profession regulation, or no regulation at all (the market model, fast becoming a default: look on Craig’s List). Models that experiment with separating licensing from discipline processes. Or permitting partnerships among lawyers and other professionals. Among many others…
The Utah Supreme Court “regulatory sandbox” is by far the most impressive example of this grounded approach in practice. Having established a new branch of the legal profession (Licensed Paralegal Practitioners, also known as Limited Licence Legal Technicians in Washington State) in 2015, Utah’s Supreme Court has now launched a new regulatory body, under its supervision, that will advance and implement a risk-based, empirically-grounded regulatory process for legal service entities.
The types of providers anticipated include software companies developing online legal resources, para-professionals in not-for-profits offering advice in their area of expertise – imagine eviction, immigration, benefits – or accounting companies offering legal services as part of its overall service package. Participating in the “sandbox” as a pilot requires each services provider to collect and share data with the regulator that identifies, measures, and assesses potential consumer risk.
If we were to do this in Canada, either province-by-province or better still as a national co-ordinated action plan (with timelines!), we would have data that could be used to make decisions. We would finally have something to show the public when they ask if anything is ever going to change (and I would finally have something practical and concrete to tell the SRLs who write us every day in despair).
We could stop having debates in which people assert their certainty about all the stuff that “won’t work” and instead have discussions based on real experiences and consumer input. It would enable us to develop new regulatory models for what Utah calls “consumer-facing legal services …targeted at the risks posed to the purchasers of legal services.”
The public at large and SRLs in particular no longer believe that the regulation of legal services by the legal profession is about protecting them and their interests. And please: the issue is no longer whether or not they are correct or even fair in this assessment. It’s over: the argument has been lost. Let’s move on and make a plan to protect the future of credible legal services.