Law Society Policy for Access to Justice Failure, Part Two

[see the full text on the SSRN (updated in March, 2020)]

The comment of the Treasurer of the Law Society of Ontario (Malcolm Mercer, its CEO) responding to my first article having the above same title, published in Slaw, on July 25, 2019, contains the following objections:

1. That I am wrong to say that law societies should be defending lawyers’ markets. He states:

Rather, the principal role of the Law Society under the Law Society Act (Ontario) is to (i) determine what legal services should appropriately only be delivered by licensees and the appropriate scope of practice and qualifications of those licensees and (ii) seek to ensure appropriate professional competence, conduct and capacity of licensees.

This defining of law society duties in terms of 19th century requirements means that law societies have no responsibility for the unaffordability of legal services even though their present unaffordability is caused by: (1) the obsolete production method used by lawyers; and, (2) law societies’ failure to assist lawyers to create a support services method that can produce legal services affordably. Law societies are thus allowed to be neglectful of their duty, which duty is stated, for example, in s. 4.2 of Ontario’s Law Society Act. It states that the Law Society of Ontario (LSO) has a duty to:

1. 1. maintain and advance the cause of justice and the rule of law;
   2. act so as to facilitate access to justice for the people of Ontario;
   3. protect the public interest;
   4. act in a timely, open and efficient manner. And,
   5. Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized.

“The law is always speaking,” is the relevant rule of statutory construction. Therefore, such statutory duties are not to be interpreted using the limited scope of the duties of a 19th century law society.[i]

2. Treasurer Mercer states:

The role of the Law Society is not to “deliver access to justice”. That is the responsibility of the government and the courts. The Law Society is to regulate legal services so as to facilitate access to justice. This presumably means determining who may provide legal services and determining the required competence and conduct of licensees with access to justice being a central consideration.

Again, the definition given by LSO’s chief executive to the statutory phrase, “facilitate access to justice,” is limited to determining who should become a lawyer and their competence and conduct. Even though the current inability of the justice system to “deliver access to justice” is caused by law societies’ failure to regulate and assist the way in which lawyers produce legal services, he requires the government and the courts to be responsible for delivering such assess to justice. That must mean that the government and the courts should take responsibility for the affordability of legal services, because surely someone must have the responsibility to regulate the way lawyers produce legal services, including their affordability. But, Treasurer Mercer would not agree with such government incursions into the practice of law and the independence of the legal profession. Does that mean that no one is responsible for affordability no matter how much it prevents a growing majority of society from obtaining justice and the rule of law? Doesn’t that mean that governments must be willing to pay for law societies’ insistence that law society duties are no more than what they have always been, regardless the amount of damage, misery, and injustice caused, and obsolescence endured? Surely such a claim for entrenched institutional incompetence should not be accepted. Law societies’ management has caused the access to justice problem (the A2J problem) of unaffordable legal services for middle- and lower-income people. Therefore, they should accept it as their problem or be abolished.

3. In my previous Slaw article, as an example of the kind of support service that law societies should be creating, I cited the centralized legal research service that is LAO LAW at Legal Aid Ontario (LAO). Without justification, Treasurer Mercer referred to it as providing, “prepackaged legal research.” It is anything but “pre-packaged.” Its very high production volumes, accompanied by the high level of competence provided by full time legal research lawyers give it a cost-efficiency that traditional methods cannot match. LAO LAW is the best such specialized and centralized legal research unit in Canada. Its major cost-factors of production—its researchers, materials used, and principles of database management—are each much more highly specialized than exist in other law offices. It is designed to deliver a specialized legal opinion, individually written for each fact-pattern provided for each lawyer who requests it. There is nothing “prepackaged” about it. The Treasurer has disregarded the description of it and its methods in the full text, and the fuller description of it and why it became so popular with lawyers in private practice who do Legal Aid cases, provided in the article, “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, Nov. 8, 2018, see pages 71-80).

However, because of several substantial cuts in its government funding that LAO has suffered in the years since I designed it and got it to a production level of 5,000 legal opinions per year, LAO LAW is a smaller operation now, no longer capable of that volume.

It is the large economies-of-scale produced by the high degree of specialization of every cost-factor of production, accompanied by such very high volumes of production, is why such support services methods are used in all types of manufacturing of services as well as goods. Both the manufacturing of automobiles and the production of medical services use support services methods of production. But the A2J problem exists because law societies have failed to create one for the production of legal services. Without such support services, production that is affordable for all income levels of society is not possible.

Treasurer Mercer’s comment shows a strong resistance to significant change. As a result, law societies will continue to make victims of, the majority of the population, the courts (overwhelmed with self-represented litigants), and the majority of their member-lawyers as well. The general practitioner and unspecialized law office will be replaced by the commercial producers of legal services. If such views and methods were active in the production of medical services, the family doctor would similarly be sacrificed.

And, he is wrong in stating, “I doubt that legal research is a big part of the cost of legal services.” It is, except where research is not done that should have been done. If it were not costly, LAO LAW would not have been created to lower its cost to LAO. Since it began operation on Tuesday, July 3, 1979, LAO LAW has saved LAO lots of money that would otherwise have been paid out on lawyers’ accounts. And similarly, the cost of all legal research could be lowered, and its general quality much increased if there were such a national legal research service available to every lawyer in Canada at cost, and a separate judges’ division as well, feeding off the same centralized database of finished work-product.

LAO LAW was created while LSO was the manager of LAO. It was therefore an unwanted improvement that had to be forced upon LAO by a government complaint that LSO was allowing far too much money to be paid-out on lawyers’ accounts for legal research hours claimed. At that time, 1979, LSO feared the creation of a greatly expanded program of government-paid legal services based upon LAO as its foundation. Therefore, it wanted no improvement to LAO such as LAO LAW. Such was LSO’s substantial conflict of interest and refusal to innovate, as was confirmed by two authoritative reports in 1997.[ii] They resulted in the removal of LSO as the manager of LAO by the Legal Aid Services Act, 1998. Benchers’ conflict of interest and refusal to engage in significant innovation are the same two reasons why the A2J problem exists today.

“Clerking” for judges should be considered to be obsolete. Like most law offices, it uses a strategy of cutting the cost of legal research by way of the lower competence of the person chosen to do the research. Instead, support services methods cut costs by increasing competence, accompanied by high volumes of production by highly specializing every cost-factor of production. That includes maximizing the re-use of previously created work-product. But, bringing about such innovations is incompatible with a bencher’s having to be both a good practising lawyer, and a bencher, as well as satisfying the reason for becoming a bencher. Therefore, such badly needed changes never happen and law societies don’t change, and the misery, damage, and injustice caused by the A2J problem grow.

4. And in regard to my recommendation that there needs to be a national civil service for law societies to compensate for benchers’ lack of necessary expertise, the Treasurer states:

Mr. Chasse argues for a national “public service”. He does so on the assumption that the law societies’ mandates are fulfilled by inexpert and unsupported volunteer benchers. This ignores the reality that benchers are advised in their policy and governance work by expert policy staff and that the law society programs and services are managed and delivered by skilled and experienced management and staff. And, for better or worse, professional regulation is a matter of provincial responsibility in Canada.

If there is such expertise in LSO’s management, then I ask:

(1) Why has there been no progress towards a solution to the A2J problem?

(2) Why aren’t law societies trying to solve the A2J problem?

(3) Why does the law society define its duties in such narrow, conservative terms instead of proclaiming that whatever is necessary to solve the A2J problem, the law society must strive to do? Instead, LSO in effect states, “we shall do only that which allows us to remain as we have always been; if anything more is required, that is the government’s problem.” As a result of that attitude, Canada’s law societies have made no effort to obtain the expertise necessary to solve the A2J problem. And, I did not recommend a national “public service,” but rather a national civil service for law societies. It could be paid for by having CanLII provide nationally, at cost, plus a small profit, the same proven legal opinion service so successfully developed by LAO LAW.[iii]

(4) Why is LSO so lacking in capacity to detect problems before they become major problems? And,

(5) If LSO has such experts, what is their answer to this question, why can’t the method by which lawyers produce legal services produce affordable legal services for middle- and lower-income people? It is a problem that all of the manufacturing of goods and services has solved, including other professions, but not law societies.

And if law societies and the legal profession are so exclusively a matter of “provincial jurisdiction,” why is there a Federation of Law Societies of Canada, a Mobility Agreement among the provincial law societies; and CanLII, which is a very successful national research service for everyone by which to obtain statutes, regulations, court decisions, and other legal materials, which is an excellent foundation upon which to develop a national legal opinion service for both lawyers and judges. The major problems of all law societies are the same, and therefore can more cost-efficiently and competently be dealt with by a national civil service for law societies. Currently our law societies are like an elected government without a civil service. Such a government cannot govern, as is proved by the A2J problem. Law Societies are incapable of detecting and dealing with such problems before they are major problems, let alone devising and bringing about successful solutions.

5. Lastly, Treasurer Mercer’s comment states:

Mr. Chasse’s view of what the law societies should do is a radical change from the role assigned to them. It is not so clear that the law societies can or should do as Mr. Chasse suggests.

Yes, if one defines law society duties as being merely those of a 19th century law society, and states that the problem of unaffordable legal services, and “doing justice” is the government’s problem, then my recommended innovations are radical. But Treasurer Mercer’s views make an adequate 21st century justice system impossible. The unaided “bencher building block” of law society management makes it impossible. A law society is the lynchpin of its justice system. When it fails, the justice system fails. The A2J problem proves that. Without affordable lawyers, there can be no adequately available justice and the rule of law. People without lawyers are people without adequate power to avail themselves of the rule of law.

In the full text, I set out the topics that should be dealt with in a law society policy statement for its members in regard to, the A2J problem, the commercial producers of legal services, and the challenge of artificial intelligence. That would make the lawyer-members aware that they cannot expect much, if any help from their law society in coping with the gradual disappearance of the general practitioner and unspecialized law office. It would also make necessary the resolution of a number of differences of opinion between law societies and governments, and between law society benchers and the membership of those law societies. Treasurer Mercer’s comment shows that several very important issues need better answers.

As they appear now, Treasurer Mercer’s views make certain that:

(1) LSO will not help lawyers to be competitive with the commercial producers of legal services—adding electronic systems and devices to an obsolete production method cannot do it;

(2) The general practitioner and unspecialized law firm will disappear, to be replaced by the commercial producers of legal services such as LegalZoom and RocketLawyer, and the hundreds of small commercial “start-ups” providing services likewise based upon an intensive use of artificial intelligence, resulting in law societies losing half of their membership;

(3) And therefore, the legal profession will lose its connection with middle–income and lower-income people;

(4) Lawyers will serve institutions and rich people only; and,

(5) If the legal profession is serving less than half of society, LSO, for example, cannot fulfill its statutory Law Society Act, s. 4.2 duties as set out above. It cannot be the “protector of the public interest,” nor protect the rights, freedoms, and rule of law of all the people. The legal profession will be just another highly educated and highly specialized professional service commodity, having given up its special place in society.

(6) Then governments should no longer give law societies equal partnership in the management of justice system institutions such as Legal Aid, because the legal profession will have lost its connection with serving all middle- and lower-income people in general; see, e.g., s. 5(2) of Ontario’s Legal Aid Services Act, 1998,[iv] which creates the Law Society of Ontario’s substantial representation on Legal Aid Ontario’s Board of Directors. That will no longer be justified. The commercial producers of legal services, with their online legal services, will have more to do with providing access to justice for middle- and lower-income people than will law societies. And,

(7) Because the Treasurer’s views prescribe such a very limited scope of law society responsibility for the population of Canada’s access to justice, they do not provide for planning for the future of the legal profession, and therefore, for the future of those young lawyers, and law students who have another 40 to 50 or more years to serve as lawyers.

But the Strategic Plan proposed by LSO’s Priority Planning Committee that LSO adopt for the 2019-2023 bencher term, (dated February 27, 2020), expresses a very different outlook and scope of purpose. LSO’s Convocation has approved the Plan’s four key objectives. That will be the subject of my third Slaw post in this series.

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

[ii] See: (1) the report by Professor McCamus: Report of the Ontario Legal Aid Review-A Blueprint for Publicly Funded Legal Services (1997), recommendation 79 of which states that, “governance of the legal aid system in Ontario should be transferred from the Law Society to an independent statutory agency”; and, (2) the report by Professors Zemans and Monahan, for the York University Centre for Public Law and Public Policy, From Crisis to Reform: A New Legal Aid Plan for Ontario (1997), which also recommended that LSO be removed as the manager of LAO (at pages 2-3, and 65-66), stating: “At the same time, we do not believe that the Law Society has demonstrated the capacity or the willingness to undertake the fundamental restructuring of the Plan that we believe to be necessary if Ontario is to achieve the maximum benefit from the still-considerable funding that is available for legal aid in this province.” (The “Plan” being the Ontario Legal Aid Plan (OLAP), the predecessor of Legal Aid Ontario). And (3), see: the “Trebilcock report,” Report of the Legal Aid Review 2008, being the report of University of Toronto, Faculty of Law, law and economics professor, Michael Trebilcock, to the Attorney General of Ontario, which adopted all of the recommendations of the McCamus Report.

[iii] See the description of this service in the article, “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, Nov. 8 2018, pp 76-95).

[iv] Bill 161, Schedule 16, proposes the Legal Aid Services Act, 2019, which will replace the Legal Aid Services Act, 1998. See: (1) the LSO Gazette article, “Ontario introduces legislative amendments to enhance public protection” (Dec. 17, 2019), and, Bill 161, Smarter and Stronger Justice Act, 2020; status: March 5, 2020, ordered referred to the Standing Committee on Justice Policy. Schedule 15 makes various amendments to the Legal Aid Services Act, 1998. (2) See also; Patricia Hughes, “Searching for Smarter, Stronger – and Better? Justice” (Slaw, Feb. 11, 2020).