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Law Societies’ “Bencher Burden” Causes the Access to Justice Problem

[See the full text of this article on the SSRN. It is related to my three previous posts on Slaw, dated: July 25, 2019; April 9, 2020; and, May 29, 2020.]

Bigger law firms are now providing an example of the solution to the access to justice problem (the A2J problem) that is the unaffordability of legal services for the majority of society that is middle- and lower-income people. Richard Susskind, (with son Daniel), in, The Future of the Professions (Oxford University Press, 2015) states (at p. 68): [1]

More generally, larger firms are responding to cost pressure by establishing a new division of lawyer. Lawyers are breaking down legal work into more basic tasks, and finding alternative ways of sourcing the more routine and repetitive work, such as document review in litigation, due diligence work, routine contract drafting, and rudimentary legal research. Legal tasks in this way are now being outsourced, offshored, passed along to paralegals, subcontracted, and sold to clients on a fixed-priced basis. Some leading firms are setting up their own low-cost service facilities.[2]

They are moving away from the traditional cottage industry method to a support services method of production, i.e., from, the manufacturer of the finished product making all parts of it itself, to, the manufacturer having some or all of the parts made by external, highly specialized, high volume, “special parts” support services. That is done to create the large economies-of-scale that are essential for goods and services to be produced affordably for all income levels of society. Examples are, the “parts industry” that serves the automobile manufacturers, and the infrastructure by which medical services are provided. If automobiles were still made by way of their original cottage industry method, their manufacturers would have the same problem that the majority of lawyers have—a shortage of clients due to the A2J problem. That is the cause of the A2J problem, i.e., the cottage industry method by which legal services are produced is very obsolete, cost-inefficient, and therefore unduly expensive. In other words, “there are no economies-of-scale in the practice of law.”

Because in the manufacturing of anything, not all the costs of production vary in proportion to the volume produced, “nothing is as effective at cutting costs as scaling-up the volume of production.” And so, the greater the production volume, the greater is the ability to spread costs, which are not increasing in proportion to volume produced because many of them stay fixed, and so, progressively less expensive it is per unit produced to produce more and more. That is what is meant by “economies of scale,”—the economies obtained by greatly scaling-up the volume of production so that, that part of the manufacturer’s price to the consumer that is profit steadily increases, i.e., profit-margins increase. For example, in its nineth year of development, the centralized legal research unit that I created at Legal Aid Ontario (LAO; now entitled LAO LAW) was producing legal opinions at the rate of 5,000 per year for lawyers in private practice, willing to do Legal Aid cases. It produced the necessary cost-saving for LAO.[3]

But no law firm has a sufficient production volume to produce the necessarily large economies-of-scale that affordability requires. Necessary are the special parts suppliers of various parts of legal services that have the sufficiently large production volumes. Without them, the affordability of legal services for all income levels of society cannot be obtained. And this necessary transition of production from cottage industry to support services method for affordability should be seen as becoming as much a necessity for the big law firms as it is now for the general practitioner and the unspecialized law firm.

Therefore, if support services such as: centralized legal research; document review for discovery proceedings; and, law office administration, etc., were to be created by law societies to be used by all lawyers, the production and administration economies-of-scale would be greater and therefore the costs lower, due to the greater volume of production, than if the big law firms created them only for themselves, i.e., substantially lower costs because general and unspecialized practitioners make-up at least half the membership of a law society. As the system of support services grows, it would enable lawyers to: (1) provide legal services at progressively lower cost for all clients; and, (2) make more money.

All that is now being done in response to the A2J problem is commendable and should be done. But its impact is minor in comparison with what should be done—solving the A2J problem by transitioning the legal profession to a support services method of production. LAO LAW was able to transition Ontario lawyers when servicing Legal Aid cases, to use its legal research services at the rate of 5,000 legal opinions per year. No law firm produces that volume of legal services per year, let alone 5,000 of any one type of legal service. All of the manufacturing of goods and services has successfully carried out that transition for more than 120 years, and they didn’t do it to make less money or poorer quality products.

But those who are advancing their careers and reputations as part of the response to the A2J problem might not support efforts and advocacy for solving the A2J problem. Such opposition would serve only short-term interests, and would work against the interests of those lawyers who have many more years to serve in the legal profession. But why do they not challenge: (1) the obsolete method by which lawyers produce legal services which is the cause of the unaffordability of legal services; (2) law societies failure to make any effort to solve the A2J problem; and, (3) governments’ failure to hold law societies to account for their failure to perform their statutory duties? To leave these institutions of the justice system untouched in their performance and methods is to make the A2J problem permanent, and continuously growing.

Law societies refuse to sponsor necessary significant innovations because they wish to maintain the “bencher building-block” of law society management, i.e., benchers should: (1) never be required to do anything that will interfere with their being good lawyers for their clients; and, (2) be able to fulfill the personal reasons why they became benchers. But there are no comparable pressures upon benchers to serve the purpose of a law society—to regulate the legal profession so that legal services are adequately available, as is required by, e.g., Ontario’s Law Society Act, s. 4.2. Bencher service is an excellent method by which ambitious lawyers can embellish their careers and websites, all of which may well impress clients and prospective clients, etc. And bencher-service can be helpful in becoming a judge. And so, there is never a shortage of candidates in bencher elections even though serving as a bencher requires cumulatively, at least a month of unpaid time per year.[4]

Serving as a mechanism for such career-embellishment is the main purpose in fact of law societies. If their main purpose were in fact to regulate the legal profession so as to make legal services adequately available, there would be no A2J problem. By fulfilling their statutory duties, they would have found a way to solve the problem. Instead, they have never had a program the purpose of which is to solve the problem because, anything that is incompatible with the bencher form of law society management, such as trying to solve the A2J problem, is always said by law societies to be someone else’s problem, particularly so, government’s problem; see my Slaw posts of April 9, 2020; and, May 29, 2020.

Therefore, bencher-management, as currently constituted, will never provide the long-term planning, competence, and leadership necessary to cope with the major challenges now facing the legal profession. It is management always under the control of those lawyers who wish to use the law society to serve short-term personal interests. It needs the counterpart of a civil service that provides: (1) the permanent and continuous availability of the necessary kinds of expertise that maintain continuous competence; and, (2) the long-range planning and successful carrying-out of significant innovations.

Benchers, being lawyers with clients and law offices to manage, do not have the time to involve themselves in bringing about successful innovations such as setting-up the necessary support services that create the large economies-of-scale that affordability requires. They need a national civil service for law societies to do that, the funding of which I have previously explained.[5] And, because law societies are in fact accountable to no one, they haven’t changed from what they were when created 200 years ago, i.e., no pressure—no innovation. The original, very simplistic law society management concept of, “members lending a helping hand,” has prevailed to constitute now nothing more competent than management by part-time amateurs. It is not capable of serving the purposes of a 21st law society in Canada. Instead of evolving to meet changing circumstances, as must all organizations to remain competent, benchers have successfully resisted change by labelling any problem, such as the A2J problem, as being governments’ problem. So it is that most lawyers are short of clients even though people have never needed lawyers more because of the rapidly growing volume and complexity of law. That is one of the costs inflicted upon the legal profession by Canada’s “bencher burden” that is the cause of the A2J problem.

That the preservation of the bencher system of law society management is central to the existence of Canada’s law societies is why the Law Society of Ontario’s (LSO’s) previous Treasurer’s comment accompanying my first article (Slaw post of July 25, 2019); and analyzed in my second article and third article (Slaw, April 9th, and May 29, 2020), defined LSO’s purpose so narrowly as though one of limited function in the operation of Ontario’s justice system. Narrowly, and significantly less it is than its statutory duties. And, such “limited function” frees law societies from being accountable for the unaffordability of lawyers’ services, and therefore not accountable for all of the misery and damage that the A2J problem causes to the majority of society, and to its courts systems’ being over-whelmed by self-represented litigants who cannot afford lawyers.

And so, law societies respond to the A2J problem with simplistic legal services provided as charity, posturing all the while as doing so purely in good conscience, as though there were no obligations otherwise. It is a posture that frees law societies to remain, as intended, unchanged, but never more competent than 19th century law societies—like an elected government without a civil service. Such a government cannot govern as is abundantly proved by the ever-growing monstrous A2J problem. Nevertheless, maintaining the affordability of legal services is just as much the duty of law societies as is maintaining lawyers’ competence and ethical practice—because, all three are an integral part and product of the way lawyers do their work.

Now and for but a short while yet, highly specialized practitioners and the big law firms need not fear competition as might be provided by the commercial producers of legal services. Those lawyers don’t need their law societies to be anything more than what they have always been—gentlemen’s clubs (that now include ladies).[6] But the other half of the profession that is lawyers that serve middle- and lower-income people, do need law societies that can effectively help them cope with the three major threats to their law practices: (1) the A2J problem; (2) the commercial producers of legal services; and, (3) artificial intelligence that can remove the need for lawyers’ services.

But those lawyers who become benchers, treasurers, and presidents, of Canada’s law societies come mostly from the more “specialized half” of the profession. They haven’t become benchers to solve such problems, but rather to use their terms as benchers and law society leaders to embellish and promote their careers. If however, a lawyer fears the above three threats ending his/her law practice because of a dire shortage of clients, there isn’t time and temper enough to also be a bencher.

Consequentially, as the per capita number of lawyers in private practice continues to decline,[7] society’s middle- and lower-income people will lose their opportunity to be represented and served by lawyers, and therefore lose the substantial benefits of the well-regulated and protective lawyer-client relationship. They will have to be content with the online legal services as provided by the commercial producers of legal services, i.e., be abandoned to obtain what they can from the comparatively very inadequately regulated and risky commercial buyer-seller relationship, which requires nothing more than that the parties be honest and legal, beyond which each party is free to try to get “the best of the deal.” There is nothing comparable to, inter alia, the fiduciary duty’s required devotion of one’s client, law society oversight and discipline, and professional liability insurance.

Law society management clearly now intends to rationalize that intentional down-grading of service by substituting paralegals,[8] and “alternative legal services.”[9] It is in that way that law society bencher-management significantly adds to society’s very socially destructive and politically divisive income-inequality by making inevitable the stratification of different types and qualities of legal services. The availability of which strata of legal services is to be determined by the size of people’s incomes. Such is compelled by law societies abandoning people of middle- and lower-income to having to use: (1) the simplistic and inadequate charity provided by “alternative legal services”; and, (2) paralegals who can work independently free of the supervision of lawyers.

Such is the consequence of the bencher-lawyer management structure of Canada’s law societies. They cannot fulfill the purpose of a law society without the counterpart of a civil service, but they are unopposed and unchallenged by government as to their failure to make legal services adequately available. Governments fail to hold law societies to account for their poor performance because of the politician’s belief that, “there are no votes in justice,” meaning that there are no significant quantities of votes to be gained by spending significant quantities of money on the justice system. So, they don’t threaten law societies with being replaced because that is considered to be insufficiently politically profitable, as law societies long have known. As a result, Canada’s law societies exist in fact “above the law,” unaccountable to the political-democratic process. As a result, the major institutions of the justice system are inadequately funded by governments, and incompetently managed by law societies and governments.[10]

Therefore, ask yourself, what kind of legal profession do you want to leave to your children, and grandchildren, etc. And do you want to serve-out the remaining decades of your career in a financially-depressed legal profession? Continuing bencher-management as it is now, will leave you with very little choice, and without the ability to compete adequately with the commercial producers of legal services, such as, LegalZoom and RocketLawyer, (and the hundreds of small “start-ups”). They will bring about the de facto deregulation of the legal services market.[11]

Nevertheless, law societies are not going to change, being as they are devoted to preserving the “bencher-burden” of law society management. And so, they refuse to accept the A2J problem as theirs to solve. But in good conscience, the victims of the A2J problem cannot be left to continue to grow in size and misery endured. The A2J problem must be solved instead of merely assuaging its victims with simplistic legal services given as charity, and thereby diverting attention from the need and duty to solve the problem. And, it is insulting to consider such people served as being no more worthy and successful than to be treated as charity recipients. People want, “my lawyer; not a free lawyer.”

Therefore, law societies being immovably a stationary management structure, governments should look to the commercial producers to provide a solution. Their aggressive, commercially competitive methods result in constant innovation in production and management methods so as to increase profitable market-share. But the “bencher-burden,” being so deeply-rooted in the institutional culture of Canada’s law societies prevents them from providing the leadership necessary to bring about such badly-needed innovation in the method of producing legal services by lawyers and in law society management structure and methods.

So, Canada’s governments should: (1) bypass law societies instead of looking to them for a solution. The Ontario government has already supported the development of several small, commercial “start-up” producers of automated legal services.[12] The bigger commercial producers will employ lawyers with which to market their online legal services. And: (2) regulate the commercial producers, but this time with sufficient government over-sight. Use as a model, British Columbia’s recently enacted Professional Governance Act.[13]

More on this subject in my next post.

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[1] Richard Susskind has written several other books on the future of the professions (all published by Oxford University Press (OUP)); see: The End of Lawyers (2008); Transforming the Law (2000); and the, CBA Legal Futures Initiative’s, A Guide to Strategy for Lawyers, (2012). His most recent book deals with a different but related subject: Online Courts and the Future of Justice (2019).

[2] Added is this footnote, note 172: “e.g. Allen & Overy, Herbert Smith Freehills, and Simmons & Simmons. These and many others are described at http://www.lexisnexis.com.” In my full text see note 12 and accompanying text, inter alia, for Richard Susskind’s other books on technology, lawyers, and the legal profession.

[3] LAO LAW has existed since Tuesday, July 3, 1979, but it has a lower production volume now because: (1) it has a smaller staff; (2) it has a different purpose: (3) LAO has suffered a number of funding cuts; and, (4) the Law Society of Ontario (LSO) is no longer the manager of LAO because of the 1997, McCamus Report’s investigation into the management of LAO, which resulted in Ontario’s, Legal Aid Services Act, 1998. (The McCamus Report is no longer available online, except for “Chapter 7: The Choice of Delivery Models for Legal Aid.”)

[4] The third paragraph of the announcement of the 2015 bencher election of the Law Society of Ontario (LSO) stated that on average benchers contribute 31 days a year to their bencher work. A notice to the profession of a bencher by-election of the Law Society of British Columbia (LSBC), dated March 18, 2020, stated: “Benchers can expect their duties to consume approximately seven or eight hours per week, four or five full days a month, or 200 hours per year.” The LSBC bencher term of service is two years. For LSO it is four years.

[5] As to establishing such a civil service, and funding it, and the threat posed by the commercial producers of legal services, see my Slaw post of May 29, 2020, in this series, along with the full text. See also, Ken Chasse, Access to Justice–Unaffordable Legal Services’ Concepts and Solutions” (SSRN, July 15, 2020, 154 pages, pdf. ), at pp. 50-81.

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

[7] See: (1) LSO’s (LSUC’s) “Final Report of the Sole Practitioner and Small Firm Task Force,” pp. 50-54 (paras. 117-130) (March 24, 2005; reviewed in Convocation, April 28, 2005); (2) CanLII’s former President, Colin Lachance in: “Law’s Reverse Musical Chair Challenge” (Slaw, June 16, 2016); and, (3) Moore, ibid., pp. 307-308.

[8] As to the present state of Canadian law societies’ licensing paralegals in competition with lawyers in Canada, see the former Treasurer (Malcolm Mercer, the head executive) of the Law Society of Ontario’s Slaw post of November 5, 2019, “Thoughts About Self-Regulation in the Public Interest.”

[9] Alternative legal services (ALSs) are: clinics of various types; self-help webpages; phone-in services; paralegal and law student programs; family mediation services; and court procedures simplification projects; arbitration and mediation for dispute resolution; public legal education information services; programs for 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. ALSs are charity; and as such, with the exception of services provided pro bono, and limited retainer services, do not provide the protections of the lawyer-client relationship.

[10] As to the consequences of poor government funding, see: Ken Chasse, “No Votes in Justice Means More Wrongful Convictions” (SSRN, June 10, 2016, 28 pages). A more recent example of false economy (alleged to be “modernization”) is the 2019 amendments to the Criminal Code restricting the availability of the preliminary inquiry to offences punishable by 14 years imprisonment or more. But the increased complexity of the sources of almost all evidence due to electronic systems and devices becoming a comprehensive foundation of our lives, makes increasingly necessary a thorough review before trial of its ability to produce reliable “evidence of probable guilt.” See: Ken Chasse, “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence,” (SSRN, January 1, 2020, 62 pages).

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

[12] See: Ken Chasse, “Artificial Intelligence: Will It Help the Delivery of Legal Services but Hurt the Legal Profession?” (Slaw, November 2018). It describes a competition that I attended at LIZ (the Legal Innovation Zone), on March 23. 2018, at Ryerson University in Toronto. LIZ is an “incubator” that assists the development of such small developers of automated legal services. Ontario’s Deputy Attorney General was in attendance along with $80,000 in government-provided prize money. The presentations by the six competitors, being the “most promising” of the 30 then under development at LIZ, clearly showed that their major target for service was retail. There were also services being developed to serve law firms. See for example: “MinuteBox Inc. is a tool for corporate law firms.”

[13] See also the references to this Act in the Law Society of British Columbia’s Futures Task Force’s consultation paper, The Future of Legal Services, Legal Practice and the Legal Profession in B.C., (December, 2019), under the heading, “The future of self-regulation,” (p. 7).

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