The concept of a legal profession should have a strong social welfare aspect to it such that its distant goal is to make a community’s legal health as important to it as its medical health, and its lawyers as important to it as its doctors. Technology can do that. Unfortunately it is becoming a more distant and unattainable goal because our law societies are moving us in the wrong direction.
All efforts are aimed at helping the population learn to live with the problem of unaffordable legal services, but there are none to solve the problem. Law society benchers (elected by their fellow lawyer-members of a law society to be its managers) promote the former but not the latter. Efforts to help the population learn to live with the problem are provided by other people. Benchers merely promote them. Thus the time needed remains in control of each bencher and does not involve a risk of failure attributable to a bencher. Therefore benchers can give priority to being practicing lawyers and to fulfilling the personal reasons for becoming benchers. That leaves law societies’ duties to make legal services adequately available in a very poor second place. That conflict plus a refusal to innovate is the cause of the problem.
A program to solve the problem would involve very detailed hands-on management by benchers. It would require a period of trial-and-error learning, and therefore accepting the risk of failure as the price of learning. That makes the amount of time needed unpredictable. And it creates a risk of being associated with a failure, at least at the beginning of such a project. Therefore, there is no such program.
And there is no public declaration by a law society that states, “this problem is our problem and it is our duty in law to solve this problem.” Thirdly, law societies do not do the obvious—to join together in a national effort to learn how to solve the problem by retaining the necessary expertise to develop a strategy. The problem is the greatest threat and impairment ever, to the availability of legal advice services, and the integrity of Canada’s justice system, and to the continued existence of law societies.
But CanLII (the Canadian Legal Information Institute) and the National Mobility Agreement are impressive accomplishments by Canada’s law societies by way of the Federation of Law Societies of Canada. They prove that our law societies can solve the unaffordable legal services problem.
But, such institutions do not change until the fear of the consequences of not changing is greater than the fear of the consequences of changing. Apparently, our law societies do not yet fear the consequences of not changing, even though they have no answer for the angry taxpayer who demands to know:
“Why can’t I have an affordable lawyer of my own? I pay for the justice system where you lawyers earn a very good living compared to me. But I must use the second best ‘alternative legal services’ of clinics, public legal education kiosks in shopping malls, help for self-represented litigants, pro bono and targeted legal services, and various forms of self-help. You say you take this ‘access to justice’ problem very seriously. I don’t believe that. If you were serious, you would be trying to solve the problem. You can’t show me anything that you have done about trying to solve the problem. Would you send your close relatives and friends to ‘alternative legal services’? Of course not; that’s not good enough for them, but it’s good enough for us—yes us, the majority of the population who cannot afford legal services. Why should I give my respect and tax money for your justice system?”
The Access to Justice Research Network (the AJRN & CFCJ), and The Action Group on Access to Justice (TAG, an agency of the Law Society of Upper Canada (LSUC in Ontario)) are ignoring that angry taxpayer. There will always be a need for their alternative legal services, but they shouldn’t be the law societies’ reason for not striving for the problem’s solution. They do not provide the fiduciary duty.
What these groups are doing is commendable. But the young lawyers and law students involved will spend the rest of their careers in a seriously economically depressed profession. The population has never needed lawyers more. If legal services were affordable they would have very good economic futures and careers. What is being done about that?
Given the great power of communication that all people now have to talk about the damage caused to their lives by the lack of a lawyer’s advice, the law societies are inviting their own abolition, or substantial changes in their management structure—see for example, The Clementi Report (U.K., 2004). Its recommendations are briefly summarized in the History of Reforms provided by the U.K. Legal Services Board. Isn’t a similar regulatory oversight agency required for Canada’s law societies? See University of Windsor, Canada, law Professor Noel Semple’s book, “Legal Services Regulation at the Cross Roads: Justitia’s Legions” (Edward Elgar Publishing, 2015). He examines legal services regulation in North America and in other countries. See the Financial Post book review by Mitch Kowalski, that says, “The footnotes alone are worth the price of this book!”
Law society efforts are far from providing an adequate response to the population that pays for the justice system. In return, law societies sponsor “alternative legal services,” which are mostly charity. They do nothing more than help the population learn to live with the problem, which tells everyone that never again will they have a lawyer of their own, in a fiduciary duty, whose duty it is to solve the client’s legal problems affordably. It is also a confession to government that law societies cannot solve the problem and won’t try to solve it. So what justifies their monopoly over the provision of legal services?
The fiduciary duty tells the client, “your legal problems are now my problems; so go home, rest, and take care of your health.” That is a very important part of a lawyer’s services to a client and of the justification for the monopoly. That’s gone. Alternative legal services and current access to justice efforts do not provide that.[i] Rich people will have it, but not the majority of Canada’s population.
Therefore, a law society public declaration is required. Because: (1) of that substantial loss that is the fiduciary duty that accompanies the delivery of legal services by a lawyer; and, (2) to avoid accusations of a lack of transparency concerning its policies and practices as to the availability of affordable legal services, a law society should publicly state: (1) people must get used to living with the problem of the unaffordability of legal services; (2) because the law society is not able to perform its duty to bring about innovations in regard to the way the legal profession provides legal services so as to make them affordable; and, (3) although it is expected that the matter of the affordability of legal services will be relieved by the development of various commercially-provided legal services [see below], such services will not be accompanied by the law society’s enforcement of the quality of such services and of a fiduciary duty.
As a result of such law society “failure to perform,” the legal profession’s methods of providing legal services are fixed. But the medical profession and nearly all other producers of services as well as goods are not so immovable and resistant to change for the greater welfare of the community. If this state of affairs is to be legal, legislation such as Ontario’s Law Society Act, s. 4.2, should be amended so as to reduce the duties and responsibilities of law societies, and therefore, their purpose, power, and prestige.
But there won’t be such public declarations of law society policy. In effect, they state that the law society will not aid its members to compete with, and out-perform the movement away from the professional, duty-bound provision of legal services, and to the commercial marketing of legal services. But law societies have the future of the legal profession in their hands, particularly so that of the young lawyers in their membership.
Instead, the specialized staff, materials necessary, principles of database management, and methods of production needed to make legal services affordable for the majority of the population, will be developed by “the fast food-law” outlets such as, LegalZoom, RocketLawyer, LegalX, and the more multi-purpose Avvo.com. Their use of technology for legal advice could become highly sophisticated.
That should happen within the context of the law firm and not by way of highly commercialized legal services. If law societies provided strong leadership, the legal profession itself could make it happen. The practice of law is not a business, and business is not the only agency that can make it as cost-efficient as necessary, and make legal services as affordable as required.
Consider this quotation from one of Canada’s most influential law journals:[ii]
“But will the automation of legal services be the death knell for lawyers? Technology has disrupted a number of other industries to the detriment of established players and the labour force. Wikipedia has destroyed the encyclopaedia industry; YouTube and Netflix have changed the way individuals watch television; Airbnb has significantly disrupted the hotel industry; and Uber is in the process of upending the taxi industry. Such disruption comes at a cost, borne by those who failed to innovate.” [footnotes omitted]
That is the cause of the unaffordable legal services problem—the failure of law societies to innovate.
Technology that creates support services will highly specialize every factor of production as do all industries in competitive markets and as the medical profession does. That provides the greatest competence and cost-efficiency possible. No doctor’s office provides all treatments and remedies for all patients as does a lawyer’s office for all clients. Doctors, and producers in competitive markets, use support services methods. The “parts industry” is a huge and very sophisticated support service for the automobile manufacturers. The medical services infrastructure is made up entirely of mutually interdependent support services. There are no “generalists.” In contrast, the legal profession uses a handcraftsman’s method of production without any specialized support services (except for the vendors of law books and electronic research services). Therefore the unaffordable legal services problem is inevitable. Law societies should have been sponsoring a similar transition to support services production, at least for the general practitioner–the practitioner whose greater contact with the public than that of other lawyers determines the reputation of the legal profession amongst that majority of taxpayers that pays for the justice system.
But instead, the victims of the transition to highly commercialized methods of producing legal services will be the lawyers and law students now working in a very economically depressed profession. As Jordan Furlong states, “The agile lawyer will rise as permanent, full-time, salaried employment vanishes. … Law is one of the later markets to experience the rise of temporary, contract, outsourced, and flex-time workforces.” Such a lawyer is “agile” in providing flexible availability for multiple short-term engagements helping other law firms with peak-period work volumes and special projects. Can that create a highly career-oriented specialized lawyer, or a low-paying, hand-to-mouth existence of part-time piece work? How should we characterize Lawyers on Demand (LOD), and, Deloitte Conduit Law LLP? (See the Financial Post review of the creation of Deloitte Conduit by Mitch Kowalski (March 24, 2016)).
Commercialized law could force the lawyers remaining in private practice to become like architects and engineers in that they do their work for large institutions and construction companies. Law societies are passively aiding that transition. If it continues, the general practitioner will go the way of the shoemaker’s shop—gone forever. A summary of the statistical decline of the number of lawyers in private practice is provided in a recent article by CanLII’s former President, Colin Lachance, “Law’s Reverse Musical Chair Challenge,” (Slaw, June 16, 2016). Canada’s law societies appear to be awaiting the fragmentation of legal services as is described in the Suskinds’ latest book (see below, at pp. 66-71). But that most probably will end the sole practitioner and the general practitioner.
TAG put out a paper on technology’s uses for its “Access to Justice Week,” “Connect, Create, Communicate 2016” conference in Toronto on October 17-21, 2016. The conference topics concerned helping the population learn to live with the problem. None dealt with solving the problem. Nor does the paper, entitled, “Draft Guidelines for Using Technology to Advance Access to Justice.” See also: (1) “Background Paper: Developing Guidelines for Using Technology to Advance Access to Justice,” (distributed to those who registered to attend); and, (2) the technology “Event Review” concerning October 18th. Neither paper deals with any of the facts and observations set out above. Their use of the terms “disadvantaged groups,” and, “disadvantaged users,” implies that they include that majority of the population that cannot afford a lawyer’s advice. Clearly, LSUC’s TAG is not to concern itself with solving the problem, nor the consequences of not solving the problem.
If matters remain as they are now, the unaffordable legal services problem will never be solved. But matters won’t remain as they are. The competition of the commercial market for legal services will bring affordability, albeit at an uncertain cost to quality, and the loss of the fiduciary duty, and without a law society to enforce both. Nor will it be accompanied by compulsory professional insurance to compensate client losses. Except in unusual circumstances, such a buyer-seller relationship involves no duty to one another other than honesty and legality. Therefore, the growth of such commercial services does not justify law societies’ not striving to make legal services affordable.
Contrary to the duties of a law society set out in legislation such as Ontario’s Law Society Act, s. 4.2, current law society performance implies that the duty to make legal services adequately available does not include their affordability. But “adequately available” has to mean solving the problem; not merely helping the population learn to live with the problem. Is affordability to be provided only by way of the fragmentation of legal services to commercialized services and not by law societies?
But commercialized services and alternative legal services don’t yet provide for example, a lawyer for serious criminal charges, extended negotiations, and civil litigation, or to argue the complexities of the legal analysis produced by the Canadian Charter of Right and Freedoms. That has to be made affordable because, inter alia, self-representation can substantially increase the probability of wrongful convictions. Alternative legal services cut costs by cutting competence by moving towards a simplicity of services. But the law now always has to move towards greater complexity. If lawyers’ legal advice services were affordable, they would be overwhelmed with work.
In the following article I, Ken Chasse, develop these ideas and observations. It provides a “support services solution” to the unaffordable legal services problem: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (open access SSRN pdf. download). Reflecting similar views of: (1) law society performance; (2) the fixed, unchangeable methods of the legal profession; and, (3) of the beginnings elsewhere of support services for legal services, is this book: Richard & Daniel Suskind, The Future of the Professions: How Technology Will Transform the Work of Human Experts (Oxford University Press, 2015). It states (p. 71): “… our research suggests that traditional lawyers will in large part be replaced by advanced systems, or by less costly workers supported by technology or standard processes, or by lay people armed with online self-help tools.” Dan Pinnington has written a very good book review (Slaw, November 7, 2016). He describes this book as a, “must-read for anyone who wants to gain insights into where the legal profession is going.” And, “for anyone seeking a clearer picture of the future of legal services.”
[i] Lawyers’ legal labour provided pro bono does involve a fiduciary duty to the client, whereas other alternative legal services don’t. However, the amount of such labour provided, albeit commendable, is but a very tiny exception in comparison with what the problem requires, and pro bono legal services cannot be made available for long and complex cases. They require too much unpaid time. But those cases are generated by all income levels of society. If targeted legal services generate a fiduciary duty, it is only for the very limited work provided by the lawyer.
[ii] Anthony J. Casey, Anthony Niblett, Benjamin Alarie, & Albert H. Yoon, “Artificial Intelligence, Big Data, and The Future of Law,” volume LXVI, Number 4, Fall 2016, University of Toronto Law Journal 423 at 427.