No Longer Is It Possible to Be Both a Good Lawyer and a Good Bencher

The longstanding massive damage and misery being caused by the unaffordable legal services problem (the “accesses to justice” (A2J) problem) compels this conclusion: the problems of law societies are now such that they need an agency that performs a civil service function—one to serve all of Canada’s law societies. The A2J problem has victimized the majority of society for years. It shows that: (1) law societies are the “lynch pin” of the justice system—when they fail, it fails; and that, (2) law societies’ major problems: (a) will be national; (b) require national solutions; and, (c) will be problems for which lawyers and law societies lack the necessary expertise. Nor do benchers[i] have time for the long, detailed, “hands-on” management that such problems require, i.e., no capacity for the long-term development projects necessary. Law societies must resolve that conflict or be replaced. Instead now, our law societies are neither trying to solve the A2J problem, nor are they confessing their inability to do so. Is that criminal conduct—possibly breach of trust by a public officer (Criminal Code s. 122), or obstructing justice (s. 139)? Nineteenth century law societies can’t cope in a 21st century world.

There is much that law societies could be doing collectively such as a centralized legal research service providing legal opinions for all lawyers in Canada, as a service provided by CanLII. The knowledge how to do it already exists; see: “Access to Justice – Unaffordable Legal Services’ Concepts and Solutions” (SSRN, pdf, May 2017). That article provides the solution to the problem. And it recommends several other “support services” that could be made available at cost, without having to change the management structure of law societies or replace them with institutions having more permanent management.

The “support services method” exists everywhere in the production of goods and services, including the medical profession, because that is the way: (a) to improve a product or service without increasing its price; and, (b) to cope with changing circumstances that increase the difficulty or time needed to produce a product or service without increasing its price. But benchers themselves lack the necessary time and expertise to make such support services operational. And so lawyers have to increase the price of legal services because more time is needed to produce them due to changing circumstances, i.e., the rapidly increasing volumes of law, their complexity, dependence upon technology, and the great volumes of records that electronic technology has made possible.

Needed is a civil service for law societies because a civil service is: (1) permanent; (2) an institution of continuously developing expertise; (3) charged with a duty of vigilance as to public need; and, (4) able to carry out programs requiring long-term development, including development that bridges bencher elections and requires the trial-and-error learning for which benchers are not equipped. A civil service can be proactive before problems are major problems. That will be needed to bring, for example, the automation of routine legal services, and better marketing of legal services. And it would be much more expertly able to conduct in Ontario, the Law Society of Upper Canada’s (LSUC’s) recent “Dialogue on Licensing” estimate as to the future need for lawyers.[ii] It could do so for all of Canada and would be in a better position to estimate the impact of the highly competitive LegalZoom,[iii] LegalX etc., commercial legal services market than can any law society. And law societies should be sponsoring innovations in the methods of doing the work to provide legal services comparable to what is being provided commercially by MaRS, and by MaRS LegaX and LgalRnD to improve access to legal services. If there were such a civil service advisor, benchers could then justify giving priority to their own sources of income, i.e., to their clients and employers. Now, their much greater public duty to solve the problem of unaffordable legal services, dictates that they shouldn’t.

Ryerson University in Toronto and the University of Ottawa provided that necessary civil service function to create LSUC’s Law Practice Program; Ryerson-the English language version; Ottawa-the French language version. Expand their function to a bilingual national civil service for all of Canada’s law societies.[iv] As to financing it: create CanLII’s legal opinions service, provided at cost, plus the necessary profit. I learned how when I created LAO LAW, which began on Tuesday, July 3, 1979. Word-processing was rudimentary, nevertheless by 1988, my research staff was producing 5,000 legal opinions a year for lawyers willing to do legal aid cases. That production volume was achieved because it helped lawyers make money instead of doing their own legal research.[v] Therefore I can confidently state that CanLII’s national market will earn more than enough money.

Otherwise, a substantial change in the management of the legal profession is needed. The great volume of laws and their complexity etc., mean that people have never needed lawyers more. If legal services were affordable, lawyers would be overwhelmed with work and begging the law schools to increase their student populations. Instead, the opposites prevail. Therefore, let us rid our profession and Canada’s population of: (1) the law societies’ pathetic “access to justice” performance; and, (2) the idea that the self-regulation of the legal profession can be competent.[vi]

If law societies do no more than they are now then: (1) the general practitioner will be replaced by “fast food-law” legal services such as, LegalZoom, RocketLawyer, LegalX, and private practice will be reduced to specialized law firms and those servicing big business and other institutions. Law societies’ purpose, power, and prestige will be reduced accordingly. LegalZoom etc., emphasize affordability and are advancing rapidly along with automation’s progress from routine legal services to providing the more complex, which is something law societies should be sponsoring for their members. And: (2) “alternative legal services,” (ALSs)[vii] as recently expanded and simplistic as they are, will nevertheless become permanent and institutionalized. ALSs are charity—an insult to the taxpayer who pays for the justice system where lawyers work but can’t give that taxpayer an affordable lawyer; see: “I Don’t Want a Free Lawyer, I Want a Real Lawyer,” (the Lawyerist.com (November 14, 2016)).

The performance of law society benchers in relation to the A2J problem raises three definitive rhetorical questions (that might well serve as the main theme of a courtroom opening address):

1. Is there a law society program to solve the A2J problem, as distinguished from the current “alternative legal services” (ALSs), the purpose of which is merely to help society learn to live with the problem? For the former, benchers would have to do the work; for the latter, other people do the work.
2. Is there a law society public declaration that in effect states that, “this problem is our problem, and it is our duty in law to solve this problem”? (See for example the duties of the Law Society of Upper Canada (LSUC) set out in s. 4.2 of Ontario’s Law Society Act).
3. Given that the problem is: (a) national, having the same cause everywhere—i.e., the affordability of legal services; and, (b) causing extreme damage and misery to: (i) the population; (ii) the courts; and, (iii) the legal profession itself; shouldn’t Canada’s law societies have joined together in a common effort to retain the expertise with which to devise a strategy with which to solve the problem?

Supporting evidence proving the following factors is relevant and available:

(1) the longstanding refusal to attempt to solve the problem, even though law societies are the only agencies having in law, the power and duty to solve the problem;

(2) the amount and duration of damage and misery being done and has been done to the population;

(3) the damage being done to the justice system including, the courts, the legal profession itself, and to public perception of Legal Aid funding, given that the majority of the necessary tax money to fund Legal Aid comes from that majority that cannot afford lawyers. Such damage shows that the law society is the “lynch pin” of the justice system. When it fails to perform, all aspects of the justice system fail;

(4) the breach of a duty imposed by law, to make and maintain legal services as adequately available;

(5) the absence of a law society public declaration of responsibility for solving the problem;

(6) the failure to join with other law societies in a common effort to solve what is a very serious and long-standing national problem;

(7) lack of accountability in fact to the democratic process (accountable merely in law, but not in fact, i.e., when law societies fail to make legal services adequately available, governments don’t demand that they justify their monopoly over the provision of legal services);

(8) the problem is the most serious threat to the availability of a lawyer’s advice and accompanying fiduciary duty and services, in Canadian history;

(9) the problem is therefore the most serious threat to the continued existence of law societies;

(10) the problem endangers the reputation of the justice system and its ability “to do justice”; e.g., the increasing percentages of litigants who are self-represented litigants (served by the National SRLs Project) is increasing the probability of wrongful convictions, and causing judges to warn that their courts “are grinding to a halt” because of the greater time SRLs’ cases take to go through court processes;

(11) the problem is damaging the legal profession by way of: (1) the increasing number of law firms in severe financial distress because of shortages of clients; (2) the reduction of the number of lawyers in private practice, particularly so as sole and general practitioners and small law firms; and, (3) damage to the profession’s reputation;

(12) the use of ALSs by law societies to create the appearance of an adequate response to the problem, i.e., helping the population learn to live with the problem is not trying to solve the problem;

(13) law society “access to justice” committees have existed for several years without any apparent concern that they have accomplished nothing towards a solution;

(14) there has been no investigation as to how other professions and providers of goods and services deal with such a problem—the provision of legal services is not unique in this field of analyses, which shows that the cause of the problem is the obsolescence of the method of providing legal services, (it is a handcraftsman’s-cottage industry method, long abandoned by the medical profession, and by all of competitive manufacturing in favor of “support services” methods that use highly specialized services for parts of their work);

(15) there’s a conflict of interest: (1) being a good bencher only up to the point that it doesn’t interfere with being a good lawyer; therefore there are no programs or seminars on trying to solve the problem; and, (2) serving “the public good,” but not to the extent of trying to fulfill the purpose of a law society—to make legal services adequately available, so as to justify its monopoly over the provision of legal services.

Benchers refuse to sponsor the necessary innovations that would make legal services affordable and thus adequately available. They haven’t tried to solve the A2J problem, instead, they merely help the population learn to live with it. But if law societies are free not to have to try to solve the problem, there is no one to try to solve it, except for government intervention.

As to the constituent elements of the offence created by Criminal Code s. 122, the CanLII headnote for, R. v. Boulanger, 2006 SCC 32, states in part (see paragraph 58 of the judgment):

The offence of breach of trust by a public officer is established where the Crown proves beyond a reasonable doubt that: (1) the accused is an official; (2) the accused was acting in connection with the duties of his or her office; (3) the accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office; (4) the accused’s conduct represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and (5) the accused acted with the intention to use his or her public office for a purpose other than the public good, for example, a dishonest, partial, corrupt, or oppressive purpose.

The definition of “public officer” is broad enough to include a bencher—see paragraph 5 which deals with the definitions of “official” and “office” in s. 118 of the Criminal Code.

Paragraph 52 of Boulanger states in part:

This said, perfection has never been the standard for criminal culpability in this domain; “mistakes” and “errors in judgment” have always been excluded. To establish the criminal offence of breach of trust by a public officer, more is required. The conduct at issue, in addition to being carried out with the requisite mens rea, must be sufficiently serious to move it from the realm of administrative fault to that of criminal behaviour. … What is required is “conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder… .”

An intentional decision not to try to solve the problem, continued for many years, is not a mere “mistake or error in judgment.” And given the damage and misery that the problem has caused and is causing, it would surely be “sufficiently serious.”

Boulanger’s paragraph 27 is referred to in, Peracomo Inc. v. Telus Communications Co., 2014 SCC 29, (paragraph 57) in defining “willful misconduct” as being, “doing something which is wrong knowing it to be wrong or with reckless indifference”; “reckless” means “an awareness of the duty to act or a subjective recklessness as to the existence of the duty.” See also, R. v. Lavigne, 2011 ONSC 1335.

However, perhaps a prosecution of a law society under Criminal Code s. 122 for its failure to perform its duties in regard to access to justice by at least trying to solve the unaffordable legal services problem would fail because, even if an official knows that a decision does affect his/her personal interests, there is no offence, “if the decision is made honestly and in a genuine belief that it was a proper exercise of his jurisdiction. Conversely, the offence may be made out where no personal benefit is involved.” (paragraph 57 of Boulanger).

Traditionally, a law society’s duty meant access to a competent and ethical lawyer, but not to an affordable lawyer. But that’s a 19th century defence for a 19th century law society. Can it be a successful defence in relation to a 21st century problem? See also:

(1) “No Votes in Justice Means More Wrongful Convictions” (SSRN, pdf., June 10, 2016); and,

(2) “’Counsel, I demand Justice!’ – ‘Most definitely! How much Justice can you afford?’”(Slaw, April 10, 2017).

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[i] “Benchers” are the lawyer-members of a law society elected by its lawyer-members to be the law society’s managers for a fixed term, plus a small number of lay benchers who allegedly adequately represent the public interest. In Ontario, the Law Society of Upper Canada (LSUC) holds a bencher election every four years. The last one was on April 30, 2015; see: “Bencher Election 2015”.

[ii] The materials being distributed (pdf) by LSUC for its “Dialogue on Licensing” are extensive and impressive. But this is a topic it has been developing since law societies were created, and that Canada’s law societies can share with one another. They provide an example of the long-term development that a “civil service for law societies” can conduct on any topic and do so in a much shorter time.

[iii] For the impressive accomplishments of LegalZoom in marketing and avoiding being convicted for, “the unauthorized practice of law” (UPL), see: Benjamin H. Barton, Glass Half Full—The Decline and Rebirth of the Legal Profession, chapter 5, “LegalZoom and Death from Below,” (pp. 85-105), (Oxford University Press, 2015).

[iv] And Ryerson University’s recent proposal for a law school, that would provide new forms of legal education, would greatly compliment such a civil service function. See also arguments for and against another Ontario law school by Michelle Cook, “Ryerson’s Law School Proposal: Gaps in Legal Education” in, the Court.ca: Part 1 (Oct. 27, 2016), and, Part 2, (November 23, 2016).

[v] Because Legal Aid Ontario has suffered a number of funding cuts, LAO LAW is not the organization that it used to be. But it still uses the technology of centralized legal research but provides legal opinions in a much smaller volume.

[vi] For a Canadian treatise on the “self-regulation” debate, see: Professor Noel Semple, Legal Services Regulation at the Crossroads—Justitia’s Legions (Edward Elgar Publishing Limited, 2015).

[vii] Alternative legal services (ALSs) are, for example: clinics offering advice, self-help webpages, phone-in services, paralegal and law student programs, family mediation services, social justice tribunals, and court procedures simplification projects, 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. See: “Access to Justice: A Critique of the Federation of Law Societies of Canada’s Inventory of Access to Legal Services Initiatives of the Law Societies of Canada” (SSRN, pdf.).