Society’s Income-Inequality Unrest and Law Society Access to Justice Failure

[See the full text of this article on the SSRN. This one is related to my two previous Slaw posts dated: July 25, 2019, and April 9, 2020]

Law society bencher-based[i] management structure: (1) has caused and perpetuates the very destructive access to justice problem (the A2J problem) of unaffordable lawyers’ services for middle- and lower-income people; which has a cause-and-effect relationship with, (2) increasing the negative consequences of society’s equally destructive income-inequality problem. Law societies are thereby abandoning that majority of society such that those many millions of people will have no choice but to be served in a buyer-seller market of commercial producers of legal services, such as: (1) the big ones like, LegalZoom and RocketLawyer; and, (2) the hundreds of small, “start-ups” that have automated many legal services.[ii] Law societies appear content to be defenseless against such competition, and as a result, the legal profession defenseless as well. But, such unchallenged competition will result in the de facto de-regulation of the legal services market.[iii] This abandonment and loss to that majority of the devotion-to-client of the lawyer-client relationship, and its several other protections,[iv] has happened because law societies in Canada are still controlled by the concept of the bencher-based gentlemen’s club that motivated their creation, which began late in the 18^th century.[v]

But, to contrary appearances, on February 27, 2020, the Law Society of Ontario (LSO) released its Priority Planning Committee’s Strategic Plan (LSO’s Treasurer (“President” in other provinces), Malcolm Mercer, being the Chair of the Committee). LSO’s Convocation has approved for the 2019-2023 bencher term, the Plan’s four key objectives, which are: (1) proportionate regulation; (2) scope of regulation; (3) competence and quality of service; and, (4) access to justice.

They thereby put forward a much broader and meaningful scope of purpose for LSO than would a law society bent upon continuing to ignore its social responsibilities in regard to: (1) the A2J problem; along with, (2) adding to the social class-conflict despair and anger caused by income-inequality. But can LSO’s bencher-managers really do it? They bear all the pressures and substantial obligations that must be endured and performed by good practising lawyers that leave benchers without the time and freedom for risk-taking as to time, cost, and failure, that bringing about such significant innovation requires. That is why Canada’s law societies never significantly change as to their management structure, and as to what benchers do. They must remain unchanged if benchers are to be able to fulfill the personal reasons why they became benchers, i.e., significant innovation by long-term development programs with their potentially unanticipated time and cost requirements are not possible. One does not become a bencher to risk being associated with any failure that such innovation may bring.

Under the heading, “Determining Appropriate Scope of Regulation,” the Strategic Plan states (p. 7) that effectiveness of regulation requires LSO to:

… periodically confirm the scope of what and how it regulates, particularly in an environment where accessibility of affordable legal services is an issue and significant advances in technology and related innovations are taking place.”

And that LSO,

… consider proposals that in the public interest may expand or clarify the scope of its regulatory authority over legal service providers … (which could include) …, technology in practice and related innovations; direct-to-consumer services regulation; services provided by non-licensees; practice-specific regulation, which may also align with limited licensing options as enhancements to competency and quality of service; and the relationship of scope to access to justice.

The analysis should address the benefits and risks to the public of changing the scope of regulation or permitting certain unregulated services.

Under the heading “Facilitating Access to Justice,” are these paragraphs (p. 8):

Why This Is Significant

Recognizing the difficulty experienced by many Ontarians in accessing affordable legal services, the Law Society’s statutory obligation to regulate so as to facilitate access to justice – and advancing confidence in the regulator’s commitment to the public interest – is of strategic significance.

What the Law Society Will Do

The Law Society will determine the direction and extent of activities that it will undertake to regulate so as to facilitate access to justice. This includes determining the most effective ways to regulate legal services. This should be done in a manner that directly and appropriately facilitates and does not unnecessarily restrict access to justice while protecting the public interest.

And in regard to the, “Strategic Interdependencies of the Key Objectives,” (p. 8), benchers should take into account, inter alia, the fact that, … “Changes to the scope of regulation could facilitate the public’s access to justice,” and that, “Enhanced access to justice must maintain appropriate standards of competence and quality of service.”

These statements in regard to “access to justice” could well justify LSO’s altering its response to the A2J problem from its present merely managing the problem discretely so as to create only the appearance of an adequate response to it, to: a response dedicated to solving and ending the A2J problem. As desirable as that might be for the future of the legal profession and the integrity of LSO’s response to the problem, such interpretation cannot be given by benchers by way of fulfillment of such proposals and their above-expressed descriptions and purposes. They require significant innovation. If in fact carried out, they would significantly affect the careers of most of LSO’s member-lawyers. Because the A2J problem means that the majority of Canada’s population cannot afford lawyers for legal services beyond the routine, solving the A2J problem would convert the legal profession from one having a poor financial future, to one having a very good one. That is an urgent need because all of society has never needed lawyers more because our world is one of rapidly increasing complexity and its necessarily corresponding voluminous and complex laws and legal infrastructure.

Ontario’s legal profession, as managed by LSO, is like that of all law societies in Canada, really two professions: (1) those lawyers in the big corporate-commercial law firms plus those who have highly specialized law practices; and, (2) the general practitioners and unspecialized law offices that serve middle- and lower-income people.[i] They often have conflicting views on many issues. The views of LSO’s Treasurer, Malcolm Mercer, as expressed in his comment to my Slaw article of July 25, 2019, “Law Society Policy for Access to Justice Failure,” are much more compatible with the interests of the first group than those of the second group, i.e., incompatible with what LSO’s recently approved Strategic Plan states and is capable of. And so it is that, that second group has often accused the first group of being much favored in law society management.[ii]

The more expansive expression of possible law society responses to the A2J problem in LSO’s Strategic Plan is much more representative of the desires of the second group of its lawyer-members, and is what LSO’s duties are, as set out in s. 4.2 of Ontario’s Law Society Act. But the benchers and Treasurers in LSO’s history have disproportionately been those from the first group. They do not need LSO’s help in dealing with the A2J problem because it is not their problem. Albeit it is a problem that must cause them substantial concern, it is not a personal problem that threatens to end their law practices. Therefore, LSO’s response to it has been merely that of a, “maintaining good public relations” nature, and definitely not that of a truly substantive effort to solve and end the A2J problem.

That ensures that LSO’s management is not considered to be needing to be changed from what it has always been—dependent upon the very part-time services of practising lawyers as benchers and nothing more. It therefore ensures that such managers will not sponsor the innovations necessary to change lawyers’ method of producing legal services, but which are definitely needed to solve the A2J problem. Because bencher-management is like that of an elected government without a civil service, it cannot be anything but incompetent government and therefore the cause, by intentional neglect, of the A2J problem, which, because it is caused by lawyers’ obsolete method of producing legal services, is the law societies’ duty to solve.

The bencher puts his/her desire to use the bencher position to promote one’s career as a lawyer first, and the population’s need for affordable lawyers a very poor second in priority. That is, if it can truly be said to have any priority at all, given that LSO has no program the purpose of which is to solve the A2J problem, the success of which should now be long established.

Such corruption of priorities becomes “business as usual,” and is then considered to be long deserved as-of-right, and then entrenched deep within institutional culture. Such is the inevitable result of unaccountable and unchallenged power even though the second priority determines whether many millions of people will have the benefit of the rule of law and the lawyer-client relationship, but the first priority concerns only the small group who are a bencher’s clients or institutional employer.

Satisfying the needs and pressures associated with being a good lawyer displaces any possibility of law societies attempting to solve the A2J problem and thereby being competent 21st century law societies. Benchers do not study the cause of the A2J problem because they have no intention of trying to solve it. Therefore, not only do law societies have no programs for solving the A2J problem, they have no plans for the future of that half of the legal profession that is a direct victim of the problem, and will be superseded by the commercial producers of legal services. As a result, the bencher’s conflict of interest is an unethical one, which nevertheless has long been the foundation of law society management structure. But, such priorities of a 19^th century law society cannot be acceptable in the 21^st century.

That fact provided one of the reasons why I have recommended the creation of a national civil service for law societies—it removes, nullifies, and ends that conflict of interest, and can make our law societies again able to fulfill the purpose of a law society. Benchers could act exclusively like government cabinet ministers without also having to be their own civil service. Instead, an expert civil service could bring about the support services necessary to enable lawyers to produce affordable legal services for all income levels of society, and thereby end the A2J problem. I have explained how to fund it, in the full text (p. 28), and more fully described funding it (as well as solving the problem) in, “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, November 8, 2018, pdf.); see sections 9 and 10.

To remove that corruption of bencher priorities, the Strategic Plan should be amended to more clearly propose serving these purposes: (1) solving the A2J problem; and, (2) serving the future of the legal profession. Otherwise, law societies should be replaced with institutions staffed by permanently employed experts whose careers are dedicated to competent law society management, rather than the part-time amateur law society managers that expertly-unaided benchers must inevitably be; e.g., without the experts necessary to solving the A2J problem. For benchers to put personal motivations first (as evidenced by the absence of any attempt to solve the A2J problem), and the population’s need for lawyers’ services second, is a breach of trust, in that they intentionally fail to use the position and powers entrusted to them to perform the duties imposed by statute, for example, by Ontario’s Law Society Act, s. 4.2.[iii] And in regard to people who cannot afford lawyers, it makes what the Canadian Charter of Rights and Freedoms provides merely theoretically an available part of the rule of law. Therefore, Canada only theoretically is a constitutional democracy. Law societies have a social duty as does any large monopoly-based utility that makes an essential service adequately available to many millions of people.

Even as it stands, without such amendment, the Strategic Plan conflicts with the following statements by LSO’s Treasurer in his comment which appears with my first article (Slaw, July 25, 2019):

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.

And,

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.

And,

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.

But the unaffordability of legal services is just as much an integral part of, and the product of, the way in which lawyers produce legal services as is the competence with which, and level of ethical practice by which, they produce legal services. Therefore, taking responsibility for them should not be determined by choosing which ones of those three factors are compatible with the circumstances and priorities of benchers.

With that as a measure, consider the Treasurer’s distinction between “deliver access to justice,” and “facilitate access to justice.” It is a distinction without a difference. But even if it is a valid distinction, a regulating body such as is a law society does not “facilitate access to justice” by refusing to deal with the obsolescence of the production method used by the profession it is legally duty-bound to regulate, particularly so when it is that very method that is the cause of the A2J problem.

If otherwise (i.e., that it is the government’s problem), the government would be free to regulate that production method, and the law society would have to concede that such governmental regulation does not constitute an interference with the “adjunct constitutional principle” of the independence of the legal profession from government interference, and therefore, is not “a radical change from the role assigned to the law societies.”[i] However, law societies would definitely not accept that. But surely, law societies cannot “have it both ways,” i.e., refuse to try to solve the A2J problem, and refuse to let government try to solve it.

But they need not worry; governments cannot afford to try to solve it because now, paying for medical services alone takes up half or more of a provincial government’s budget. Law societies know that. Therefore, they know that they are free to proclaim (in defence of their “right” not to have to change) that the A2J problem is government’s problem without fear that governments would ever try to solve it.

And my “radical change,” if that is what it is, is what the Strategic Plan is capable of proposing. And its principles and proposals are clearly intended to facilitate the delivery of access to justice rather than see it as the responsibility of the government and the courts as does LSO’s Treasurer. And therefore, it includes within the “principle role of the Law Society” more than merely determining the content of the services, qualifications, and competence of lawyers.

But, most unfortunately to the contrary, LSO’s management of the A2J problem is attempting to compensate the loss of the lawyer-client relationship to middle- and lower-income people (the majority of society), by merely substituting the lower qualifications and skills of unsupervised, independent paralegals.[ii] It is in that way that law societies will make more evident the substantial consequences of income inequality, i.e., by stratifying the quality levels of legal services in the way that their availability and quality are dictated by one’s income. But the Canadian Charter of Rights and Freedoms in effect declares the rule of law to be an essential service, as are medical services; to wit: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.” Legal services should not be available only if one can afford lawyers’ fees, plagued as they currently are by the very obsolete and cost-inefficient method by which lawyers produce them. It is a “cottage industry method,” instead of using a “support services method,” as has all of the manufacturing of goods and services (including medical services) been using for more than 120 years.[iii]

By permitting such an obsolete method of legal services production to prevent the majority of society from enforcing its constitutional rights and freedoms and rule of law, law societies are able to have the rule of law operate to their bencher-managers’ comfort and career advancement. That is how Canada’s law societies increase the very destructive and de-stabilizing force within society that is income inequality.

Next: more on Canada’s law societies’ “bencher-burden” form of management, and regulation of the legal profession.

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[1] “Bencher”- 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, for a fix term, 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] There are “legal tech incubators” that aid the development of these start-ups such as the Legal Innovation Zone (LIZ), at Toronto’s Ryerson University. In the full text, see section 3, “The Commercial Producers of Legal Services” (p. 13), and section 4, “The Disruptive Force of Machine Intelligence Upon the Practice of Law,” (p. 15). The Ontario Attorney General’s department financed a competition among such developers of “apps” at LIZ on March 23, 2018. See my eye-witness description of the competition in my post: “Artificial Intelligence: Will It Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 21, 2018).

[3] See: Suzanne Bouclin, Jena McGill, and Amy Salyzyn, “Mobile and Web-Based Legal Apps: Opportunities, Risks and Information Gaps” (SSRN, June 16, 2017).

[4] The lawyer (solicitor)-client relationship provides these protections: the fiduciary duty to the client; law society financial and discipline oversight; adherence to a code of professional rules (or conduct); professional insurance liability; and, continuing professional development requirements.

[5] See: Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997, (University of Toronto Press, 1997), particularly chapters 3 and 4; (such was the Law Society of Ontario’s title until January 1, 2018). LSO began on July 17, 1797, at a town that is now, Niagara-on-the-Lake.

[6] That split in bencher membership is very similar to that described by Osgoode Hall Law School Professor Emeritus Harry Arthurs during his term as a bencher in 1979-1983, in his autobiography, Connecting the Dots, The Life of an Academic Lawyer, (McGill-Queen’s University Press and The Osgoode Society for Canadian Legal History, 2019), at p. 63.

[7] Supra note 5, particularly, but not only at, pages. 309, 315, and, 326-329.

[8] For comparison, providing a standard for analyzing such conduct is the criminal offence of breach of trust by a public officer created by s. 122 of the Criminal Code. In R. v. Boulanger 2006 SCC 32, the Supreme Court of Canada refined the constituent elements of that offence, defining “officer,” wide enough to include a law society and a bencher.

[9] It is a supporting principle to the true constitutional principle as to independence of the judiciary from government intervention. See: Professor Emeritus Peter W. Hogg, Constitutional Law of Canada 5th ed., (Thomson Canada Ltd. (Carswell), 2007) vol. 1, at p. 477, subsection 15.9(g), “Unwritten constitutional principles,” particularly note 267 (p. 479). The 2015 Student Edition does not add to that subsection concerning this principle. LSO has long campaigned to have it elevated to be a constitutional principle in its own right; see: In the Public Interest (Irwin Law and the Law Society of Upper Canada, 2007). It aggressively asserts the argument that the independence of the legal profession is a constitutional principle, but it makes no reference to having any responsibility for the access-to-justice problem.

[10] See the Bonkalo Report to the Attorney General of Ontario, dated Dec. 31, 2016. It recommends that paralegals be licensed to work independently of lawyers’ supervision, and have an enlarged jurisdiction in relation to family law practice. Allegedly, to create downward pressure upon lawyers’ fees by a competitor. But in reality, competitors are not expected to give-up cases to one another as paralegals are, if a case is beyond their jurisdiction or too complex, i.e., there’s a conflict of principles not dealt with. And, LSO has been regulating paralegals since 2007 without any sign of such impact upon lawyers’ fees. Nevertheless, the Law Society of Ontario is developing a family law specialist paralegal. As to the present state of Canadian law societies’ licensing paralegals in competition with lawyers in Canada, see LSO’s Treasurer, Malcolm Mercer’s Slaw post of November 5, 2019, “Thoughts About Self-Regulation in the Public Interest.” And see also, Jordan Furlong’s description of 15, A2J reform efforts in the U.S. and Canada in his Law21 Blog piece, ”Contagion,” dated March 11, 2020.

[11] See: Ken Chasse: (1) “Law Society Policy for Access to Justice Failure: (Slaw, July 25, 2019); and, (2) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions,” (SSRN, November 8, 2018).