Access to Justice Levies for Lawyers: Putting Our Money Where Our Mouths Are
Tyrell Moodie, accused of drug offences and facing several years in prison, was denied a Legal Aid Ontario certificate because his income of $16,211 per year exceeded the cut-off threshold. Legal aid services for refugees in B.C. and Ontario were threatened with drastic cuts in 2017. Self-represented litigants are now the majority in many family courts, mostly because people cannot afford the legal assistance that they would love to have, and legal aid won’t pay for it.
Every media story about a legal aid shortfall includes a quote from a lawyer, pointing the finger at the government for inadequate funding. However, every time the legal profession points its finger at the state, three fingers are pointing back at the legal profession. As trustees and beneficiaries of the legal system, lawyers should make a more tangible contribution to ensuring its accessibility.
I suggest that our law societies should collect mandatory “access to justice levies” from all licensees, and use the money to fund access to justice for people of modest means. These levies should be progressive (calculated based on the income of each licensee). The clinics and programs receiving the funds should be selected by the licensees themselves, through participatory democracy processes.
Isn’t this the Government’s Job?
It is true that legal aid is a collective social obligation that the state must support. However, there is no reasonable prospect that the state will meet access to justice needs, especially given voters’ persistent apathy on the topic. It is lawyers who know the problem exists, and lawyers who have the means to solve it. We should take responsibility for doing so.
Canadians have an unfortunate tendency to assume that (i) the government will take care of people in need, and (ii) individual citizens are therefore off the hook for doing so. (This might be why Canadians tend to be less personally generous than Americans with charitable donations.[1]) Legal aid is one of the areas in which Canadian governments are definitely not taking care of people in need.
Another argument for giving back is that lawyers are financial beneficiaries of a legal system that we largely control. Legal services regulation, which is largely devised and enforced by lawyers, is tight in Canada compared to many countries. There are relatively few lawyers per capita here, and a very large set of profitable activities is reserved for lawyers to the exclusion of potential competitors. Tight regulation both increases Canadian lawyers’ incomes and makes our services less accessible. An access to justice levy is one way to give back.
From Each According to Their Means
Any access to justice levy should be progressive, like income tax (and like dues in some professional organizations). Income inequality has increased in the legal sector, as in other parts of the workforce. Many lawyers earn less than the average Canadian, and these practitioners are often the same people who actually work for low-income clients. Others earn six- or seven-digit annual incomes from the practice of law.
Calculating progressive levies would require information about lawyers’ incomes, and this would lead to challenges. If it is considered too intrusive for law societies to require T4s from every lawyer, then a flat access to justice levy could be established, with discounts offered to those who can document income below a certain amount. Lawyers in most provinces must already disclose annual billings to indemnity insurers, and this information could also be used to calculate the levy.
Participatory Budgeting
You might not trust your Benchers to decide how best to spend your money on access to justice programs and clinics. A participatory budgeting process would allow licensees to vote, on their Annual Reports, for the most important causes. Those votes would determine how the levy funds would be distributed by the law societies. Alternatively, each licensee could be allowed to choose the recipients of his or her own levy, from a pre-approved list.
Participatory budgeting, like progressive rates, could make access to justice levies more palatable than proposals for obligatory pro bono, or mandatory flat contributions to support articling positions helping underserved populations.
Avoiding Perjury
“I shall seek to ensure access to justice and access to legal services.” Every lawyer recites these words before being called to the Bar in Ontario, as part of the Barristers’ Oath. On a plain reading of this language, pursuing access to justice is not merely a collective aspiration. It is a duty which falls on each individual lawyer. The mandatory access to justice levy would be one way to ensure we are not perjuring ourselves when we take this Oath.
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[1] According to tax data analyzed by the Fraser Institute, 21.3% of all Canadian taxpayers donated, and donations equaled 0.56% of our aggregate income to charity. 24.5% of our southern neighbours collectively donated 1.42% of their aggregate income.
“’I shall seek to ensure access to justice and access to legal services.’” Every lawyer recites these words before being called to the Bar in Ontario, as part of the Barristers’ Oath.” Most licensees who’ve taken this oath solemnly will swear they provide access and that they do carry out the this pledge as the oath does not specify to whom they are to ensure access to justice and to legal services. Unlike the oath reading: “I shall seek to ensure access to justice and access to legal services to the best of my abilities to ensure everyone is equal before and under the law.” The oath’s vagueness avoids licensees having a duty to provide access to justice and legal services to “anyone” or “everyone” who seeks their service and may not be able to afford such service.
Has any consideration been given to how much money should be collected from lawyers in Ontario to fund such a proposal? Given the crying need for legal assistance, it’s safe to assume that the amount would be substantial were lawyers asked to fund the shortfall at 100%. Were that to happen, then there’d be no incentive for the people of Ontario, acting through their government, to ever provide adequate funding for legal assistance. On the other hand, if the levy was minimal, then the exercise would accomplish little save, perhaps, to make us feel better about ourselves. This is not to say that the writer’s proposal is without merit. To the contrary, it might well prove to be an essential aspect of any solution to this problem. Before that can happen, though, there are many more questions that need to be asked and answered.
I agree Noel. And the basic idea of a levy is not historically unprecedented — the LSUC used to exact a modest flat levy from all Ontario lawyers as a contribution to legal aid funding, back in the day when LSUC ran the legal aid system. In an illustration of the ‘pass the buck to government’ mentality you mention, the levy was dropped during the period that legal aid transitioned to LAO.
The A2J levy is concept I can heartily support. I heard Jamie McLaren from BC float this a few years ago at a presentation I attended and ever since, I’ve quietly promoted it myself whenever an opportunity presents. But I wonder how much the could reasonably be raised through such a “tax” and whether it could possibly be enough to do more than add another drop in the not very full bucket? In the less populous provinces and territories, it really wouldn’t make much more than a symbolic or token contribution as the costs of legal aid services continue to rise.
As noble as this proposal sounds, it basically turns what should be a right into pure charity. It is akin to asking doctors to pony up money to make emergency rooms more accessible, by setting up a private kitty. Most family lawyers that I know here in Edmonton are already participating in some form of voluntarism (public family law seminars, summary legal advice clinics, taking pro bono files, subsiding Court projects for self-represented people needing help on child support etc etc) It goes on an on. Family lawyers give more time, and don’t tend to earn the kind of incomes that lawyers in big firms doing other kinds of law earn. How do we balance this if we simply do a “levy” across the Board? I am aware it’s a crisis, but from a principled basis, it is a slippery slope to start to turn everything into a private charity.
Are doctors not trustees and beneficiaries of the medical care system? I would say they are. Yet the answer there is state funding, ostensibly according to need. Should we retool the healthcare system so that doctors shoulder the cost themselves?
As a lawyer, should I, A. Lawyer, be the one to provide funding to ensure the rule of law, to the benefit of the state, while the state stands idly by?
Rather than a new levy, I would heartily support a move by law societies to re-allocate a substantial portion of existing license fees to this purpose. If the public interest warranta any allocation of lawyer licensing fees to supporting access to justice for people of modest means, surely that would rank above some of the ways the Law Societies are currently spending the money collected today in lawyer licensing levies.
A levy on top of our already exorbitant fees & insurance? I’m sorry but I completely disagree. If you want to ask for more money to fund new programs then go after the law firms that charge $400/hr. Their self-serving fees remove access for any low to middle income client from accessing justice. For practitioners who already participate in access to justice projects such as JusticeNet, Reach Canada, Legal Aid or other pro bono/low income programs, this additional levy is an insult. More than half of my clients are billed through income based programs. Or how about this: tell Legal Aid Ontario to get rid of the new red tape that prevents lawyers from joining a panel. I offered my services and was faced with a list so arduous even the person giving it to me expressed doubts that I would be able to meet the requirements. And law schools: stop pushing everyone onto Bay street and pandering to big law. We’ve got bigger issues to deal with.
I truly think it’s wonderful that legal academics often have great ideas about ways that lawyers can either earn less or give away our earnings to make the legal system more accessible.
Why is it, though, that despite a critical lack of accessible higher education, with University fees always increasing and student debt loads becoming ever more unreasonable our good academics do not solve that problem? I have not seen similar numbers of academic articles by professors offering to teach accredited classes for free, or recruiting their peers to refusing portions of their salaries to fund scholarships.
If nothing else, perhaps all the bright ideas could be put together to create a pro bono law school where tuition covers keeping the lights on, professors teach for free, students get experiential learning delivering free legal assistance, and on graduation have no debt and are able to afford to article for, and later work at, lower paying “social justice” jobs.
It’s difficult to gauge the potential effectiveness of this proposal because the problem is identified, but is neither defined nor quantified.
What exactly does “access to justice” mean? Is it restricted to legal disputes presently covered by legal aid? If not, then what else should be covered? At what level should funding be offered to a person to ensure they’re represented? Is that cutoff or sliding scale intended to ensure universal accessibility to representation? Is there a limit to the funding that any one person can receive? Until these questions are answered it’s not even possible determine what the cost of an effective solution to the “access to justice” issue is.
Until the cost of an effective solution is known, it’s not possible to set a levy to fund it. While I don’t have the quantitative data, my sense is that the cost is too large to be covered by taxing the profession at anything less than a completely onerous rate.
Instead of operating a less well funded legal aid style program, perhaps the profession could start addressing the structural issues that are contributing to the problem amorphously referred to as “access to justice” (which I am defining as a person’s inability to obtain legal representation at a price they can afford) by:
1. Increasing the supply of lawyers. There should be an alternative to articling to enter the profession. At present only 2/3 of law grads obtain an article. Open the doors to the profession. Increase the number of law schools in the country. Presently, various law societies are doing their level best to prevent the creation of a private law school and this is harmful to the public’s need for more lawyers; and,
2. Creating the conditions to offer cost effective delivery of services. This means working as a profession to drive law reform and to ensure adequate funding of the court system to allow for timely access to adjudication when it is needed.
The above is more in line with the law society’s expertise and the historical activity of the CBA (which would benefit from greater participation on the part of the bar). I am reluctant to extend the mandate of the law society to include assessing a tax on the bar and administering a social welfare program that is supported by that tax.
No need for a levy. Why not simply a reallocation of current funding? Each year the ON government cuts a cheque to the CMPA to cover roughly 80% of doctors’ malpractice fees. The CMPA reserve fund is massive (a few billion). Much has been written about CMPA heavy-handed litigation tactics where money is no obstacle. Why is the government funding one side of the fight between doctors and victims of professional negligence? And it isn’t as if the CMPA cover only malpractice – as it claims. It fought to have a BC doctors name removed from their sex offender registry. And people who complain to the CPSO about a doctor quickly become victims of the CMPA’s heavily funded skortched-earth tactics.So affluent doctors get Cadillac lawyering on the backs of working poor and middle class taxpayers.
On the flip side – our government starves Legal Aid and the poor (and middle class) go begging. No more money in the budget for them says the government. But the solution is elegant in its simplicity. Let doctors pay their own malpractice fees instead of dumping the lion’s share on to the taxpayer. And re-direct the roughly $200 million per year (Ontario alone) from the CMPA toward legal aid.
An overfunded CMPA on the backs of taxpayers is undermining justice. An underfunded legal aid system is undermining justice. The fix is drop-dead simple and revenue neutral.
Is it putting our money where our mouth is if the LSUC makes us do it?
If people want to “put their money where their mouth is” there’s nothing that stops them from doing it, regardless of what the law society does.
In any event, it’s hard to see how the law society would have authority to tax lawyers. Only the legislature can impose taxes. The law society can levy fees to support its regultory function, but raising a progressive “levy”, would almost certainly be ultra vires the law society.