IT WAS INEVITABLE: as the courts shut down and the work-from-home edict spread, I was reminded of Luddite lawyers sitting in their offices. It would be a gargantuan undertaking to take files to and fro between home and office, and impossible to convert to a paperless office in the blink of an eye. Not surprisingly discoveries and mediations were cancelled, revealing those behind the curve. What we have preached as best practice for decades is now the only practice: paperless remote work is the one game in town.
Speaking of behind the curve, the conservative-to-a-fault Law Society of Ontario relaxed its requirement for in-person verification of client identities, to cheer and derision. Cheer – the right decision. Derision – what took so long? Lawyers on the ground have long been verifying clients with the likes of Skype and FaceTime and WhatsApp, despite the arcane Rules of Professional Conduct, reacting to the needs of the present and not the rules of the past. As the gravity of expectations in today’s society is set by the mobile phone, where a swipe of a screen can achieve a result, lawyers have failed to fall into line and the law society has failed to encourage the profession. But one cannot escape the grasp of the inevitable, which seemed 10 years away and is now here. Those who have already adapted must ask: when will the regulator wake up from its 1800s slumber?
The natural catastrophe mirrored the same clarion call to bring the future to the present as the artificial one in British Columbia, where the no-fault auto insurance regime eliminated livelihoods for hundreds if not thousands of lawyers. Online dispute resolution had shown for many years its ability to resolve a large volume of disputes to the self-reported benefit of consumers. The developments there, too, have been inevitable. It is devastating for those affected. For bystanders the lesson is that we must all anticipate market forces – what users of our services want and what others are doing to meet those wants – or be left out in the cold. When a person gets hit by a train coming a mile down the road, horns tooting, engine chugging, brakes screeching, one must question the wisdom of the person. The train coming our way is filled with apps that bridge the gap between legal services for the poor and the rich but nothing in between; alternative dispute resolution; remote services; flat rates; and firms in other industries, salivating at the chance to do what we have been unable to do.
And by the way: blame the regulator, blame ourselves. Our regulator is governed by ourselves. We have imposed upon ourselves a monopoly that refuses or has been slow to allow disrupting influences like apps, alternative dispute resolution, remote services, flat rates, and other firms to play the game. While the regulator’s executive bickers over issues of free speech and equality – important values – it remains blind to the massive forces that will destroy it. At this rate, our profession will eventually be revealed as unsuitable for public consumption and the regulator will either be removed or overhauled in favour of a more responsive regime.
The courts exist to mete justice, and the public now suffers because it is a crippled beast, unable to function remotely. The rule of law is needed more, not less, in times of suffering, and yet access to it has been diminished. As a society we look inward and observe what importance we have given justice is in our society. It is not a lot. In rural counties once ruled by multiple judges we now one or no judges at all. Court staff are overwhelmed and their ability to maintain grace under pressure is truly treasured. Criminal lawyers eye Supreme Court of Canada decisions regarding delay because the justice system is increasingly delayed. Paperless filings are in fact printed out in hardcopy and put into paper files in courts, making a mockery of electronic filings. Lawyers must bring their own equipment into court to hold electronic trials, separating the haves from the have-nots in a forum established to give equal opportunity to all sides. Courts throughout the country are under-manned, under-equipped, and under-maintained.
Observe instead what we have made beautiful, accessible, and powerful: architectural marvels house private companies that tower above us like so many toothpicks in a bottle; the culmination of technology brings Netflix and newspapers and Instagram to our fingertips; futuristic cars roam the streets, showing that we care more about signalling our socioeconomic power to each other, than we do to be taken safely from A to B. From this vantage point, we value commerce, entertainment, social competition and pleasure more than we do justice.
Our society has taken a hit and an exigency arises out of the fog: justice must be given priority.