Why the “Access to Justice” Activity Should Be Trying to Solve the A2J Problem

[The content of this article is closely related to six of my previous posts on Slaw, dated: July 25, 2019; April 9, 2020; May 29, 2020; August 6, 2020; October 22, 2020; and October 24, 2020. See also the full text on the SSRN. And, the articles cited below without authors named, are mine.]

The responses being advocated for the access to justice problem (the A2J problem) of unaffordable lawyers’ services, do not involve solving the problem. Instead, they propose using: (1) “lesser legal services providers”—people of lesser qualifications as to education and training than lawyers, such as paralegals; and, (2) ABSs (alternative business structures) that will allow law firms to become investment properties. But solving the problem by transitioning the legal profession to a “support services method” of production would: (1) make more money for lawyers in all kinds of law practice; (2) enable them to serve their clients better; and, (3) avoid adding to society’s extremely disruptive “income inequality” discrimination, which will force middle- and lower-income people to getting their legal services from: (1) paralegals and other “lesser legal services providers”; (2) the online legal services of the commercial producers (such as LegalZoom, RocketLawyer, and the hundreds of small “start-ups”[1]), and law society very simplistic “alternative legal services”[2] provided as charity. Except for very routine, paper-work type of legal services, lawyers would remain too expensive for them—how extremely insulting and insensitive to society’s suffering from the consequences of unserviced legal problems that is! Only the more affluent levels of society would have the services of lawyers available to them.

The larger the group that a support-services method of production serves is, then: (1) the greater is the ability to lower the costs of production; (2) the better are clients, patients, and customers served; and therefore, (3) the more money do the producers of those services make. That means that a single support-services system should be made big enough to serve all lawyers—general practitioners, unspecialized law firms, and as well, lawyers having highly-specialized law practices such as lawyers working in large corporate-commercial law firms. Because in the manufacturing of anything, not all the costs of production vary in proportion to the volume produced, “nothing is as effective at cutting costs as scaling-up the volume of production.” And so, the greater the production volume, the greater is the ability to spread costs, which don’t increase in proportion to the volume produced because many of them stay fixed, and so, progressively less expensive it is per unit produced to produce more and more. That is what is meant by “economies of scale”—the economies obtained by greatly scaling-up the volume of production so that, that part of the manufacturer’s price to the consumer that is profit steadily increases, i.e., profit-margins increase.

But that would require law societies to bring about the transition of lawyers from the profession’s present “cottage-industry method, i.e., from, the manufacturer of the finished product making all parts of it itself, to, the manufacturer having some or all of the parts made by external, highly specialized, high volume, “special parts” support services. That is done to create the large economies-of-scale that are essential for goods and services to be produced affordably for all income levels of society. Examples are, the “parts industry” that serves the automobile manufacturers, and the infrastructure by which medical services are provided. If automobiles were still made by way of their original cottage-industry method, their manufacturers would have the same problem that the majority of lawyers have—a shortage of clients due to the A2J problem. That is the cause of the A2J problem, i.e., the cottage-industry method is very obsolete, cost-inefficient, and therefore unduly expensive. As a result, currently, “there are no economies-of-scale in the practice of law.”

Bigger law firms (outside Canada) are now providing an example of the solution to the A2J problem. The well-known author of several books dealing with such “costs and management” problems of the professions, Richard Susskind in, The Future of the Professions (with son Daniel); (Oxford University Press, 2015), describes a support-services strategy for drastically reducing the costs of producing legal services as follows (at p. 68):[3]

More generally, larger firms are responding to cost pressure by establishing a new division of lawyer. Lawyers are breaking down legal work into more basic tasks, and finding alternative ways of sourcing the more routine and repetitive work, such as document review in litigation, due diligence work, routine contract drafting, and rudimentary legal research. Legal tasks in this way are now being outsourced, offshored, passed along to paralegals, subcontracted, and sold to clients on a fixed-priced basis. Some leading firms are setting up their own low-cost service facilities.[4]

Paralegals and other “lesser legal services providers,” cannot be expected to cope, without the assistance of lawyers, with important areas of the law that are very complex but are applicable to the legal services to be provided to all types of clients, and legal proceedings, i.e., to the poor as well as the rich and the large and small organizations they own and manage, and to prosecutions for lesser criminal offences as well as the complexities of murder and sophisticated fraud schemes; e.g., (1) the vast and complex legal literature that has been generated by the Canadian Charter of Rights and Freedoms; and, (2) the great technical complexity of the electronic systems and devices that now generate most of the evidence that is used in legal proceedings and also for legal services—it should not be admitted into evidence without a knowledgeable challenge of its reliability.[5] For example, the Law Society of Ontario (LSO) has authorized paralegals to defend persons charged with summary conviction offences where the maximum penalty does not exceed 6 months’ imprisonment and/or a fine of $5,000. And consider the great length and complexity of the Supreme Court of Canada’s reasoning and decision in, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. It’s an administrative law decision, but its principles of interpretation are applicable to criminal law prosecutions, almost all of whose defendants cannot afford lawyers, and most appear in court without lawyers. Most lawyers might have trouble digesting Vavilov, let alone those “lesser legal services providers” having lesser legal training and educational requirements.

I’m in favor of using paralegals and other such “lesser legal services providers,” so as to make legal services more affordable for everybody. But because of such “caselaw and other legal literature and technology’s complexities,” I want them to work under the supervision of lawyers. The control and discipline to be provided by a supervising lawyer is more certain and proximate than what any law society oversight mechanism may provide. And the lawyer is always accountable for the mistakes of the paralegal and to ensure that all laws and technical sources of evidence are adequately understood, challenged, and applied by the paralegal. Sole practitioners and small law offices should be able to share paralegals so as to make their services affordable to all lawyers.

However, the Bonkalo Report (for the Ontario Ministry of the Attorney-General, dated Dec. 16, 2016, by Justice Annemarie E. Bonkalo), which has motivated LSO’s Family Law Action Plan to create a family law specialist paralegal (the “Family Legal Services Provider”), recommends that they be allowed to work independently of lawyers’ supervision. The reason given is that the competition thus provided will create “downward pressure” upon the size of lawyers’ fees. However, LSO has been regulating the paralegal profession since 2007, but there has been no such effective downward pressure provided by those paralegals who have chosen to operate independently. And, it must be stressed in their training that paralegals are to send cases to lawyers that are not within their authorized scope of practice. There’s the dangerous contradiction—an effective competitor does not give-up cases to the competition. When financial security and professional success are involved, the power of human rationalization is best overestimated, as distinguished from assuming that when very ambitious professionals are making their choices, “the demands of ethical practical will nonetheless prevail.”

And that applies to lawyers’ money-motivations as well as those of paralegals, i.e., to ensure that lawyers do charge clients a lower fee for the work of their support staff, as distinguished from their own work and time, there will need to be the threat provided by stiff and effective competition, or effective law society surveillance and discipline; and best there be both.

As to ABS investors, there is insufficient concern shown by their advocates as to: (1) lawyers becoming too much under such investors’ control; and, ABS advocates provide insufficient detail as how exactly, and to what extent such money provided to lawyers will enable them to produce affordable legal services for middle- and lower-income people. That is so because the A2J problem is not a legal problem. It is a problem concerning the interplay of economic factors pertinent to different models for producing goods and services. But all of the advocates of the several various responses to the A2J problem are merely lawyers. Some state that they have had economics training. But definitely they haven’t had the experience, as I have as a lawyer having to establish a centralized, highly specialized, high volume legal research support service providing such services to lawyers for thousands of clients each year; see: “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, August 5, 2020), at pp. 70-98.

That article also explains: (1) how a national civil service for law societies could be created and financed. It could provide services such as establishing the support services necessary to remove the obsolescence of lawyers’ current cottage-industry production (pp. 70-98); and, (2) the improbability of ABS investors’ money enabling lawyers to provide affordable legal services (pp. 98-148). Creating such a civil service would also remove the very destructive conflict of interest that is law society lawyer-managers (the benchers)[6] no longer being able to be both good lawyers and also able to regulate the legal profession so as to make legal services adequately available. As a result, that conflict of interest is the cause of the A2J problem. It is the justice system’s “bencher-burden.”

In regard to law societies having to be persuaded or forced to allow ABS investment, I believe that law societies, at least in Canada, will be quite eager to do so. Those law society practising benchers who are in the majority and thereby have control of law society decisions, have clients very able and eager to be ABS investors. And so those clients’ lawyers will be very eager to represent them in negotiations with all of the many hundreds of client-starved lawyers and law firms across Canada. Such a state of desperate vulnerability to losing their law practices will make them very easy to negotiate with; see: “Alternative Business Structures’ ‘Charity Step’ to Ending the General Practitioner” (SSRN, September 30, 2018, 68 pages). That article describes how the Law Society of Ontario created the ABSs that are CSOs (Civil Society Organizations,” pp. 14-17) such as, charities and non-profit organizations, that wish to have their lawyers provide legal services to their members. To me, that is but the “thin edge of the wedge,” i.e., the precedent that will become common practice that, “follows the money.”

Of course, the ABS investors will openly agree, in writing or otherwise that, that which must be respected and preserved are, law society financial oversight and disciplinary systems, and the obligations and safeguards of the lawyer-client relationship. But in their business practices, when put into words will say, “of course preserved, as long as they don’t interfere with our need to use very aggressive commercial strategies of very precise and detailed business management and control for marketing and profits promotion.” ABS investors are looking to be the online “fast-food providers” of the legal services market, where “the quick and easy money is.” Therefore, they are not interested in providing the more complex legal services that are much more demanding of a lawyer’s time and expertise. But it is those more demanding legal services whereat the A2J problem exists.

Much, much better it would be to have ABS investors finance the creation and operation of the various support services that a support-services method of production requires. That would not only avoid all of the legal problems and fears involved in allowing law firms and lawyers to be owned by commercially-oriented investors, but also would be much more capable of providing and certain to provide affordable legal services for middle- and lower-income people, i.e., much more likely to solve the A2J problem.

And so, when arguing as I do, that: (1) all of the current A2J activity is working against the interests of all of the young lawyers and law students who will have to live for the next 40 to 50 years of their careers in the legal profession, with the mess of a much devalued legal profession that the justice system’s leaders will leave behind while those leaders go off to a comfortable retirement and death (see my Slaw posts of, October 22, 2020; and October 24, 2020, which posts explain how those leaders and their followers are being “used” by law societies and governments to avoid their having to bring about significant change to the justice system); and argue that, (2) those governments and law societies that continue to refuse to work towards a solution to the A2J problem, should be abolished, I don’t expect to be very popular. But, given how deeply entrenched the present system is, I don’t expect to have any immediate impact either.

The members of Canada’s justice system’s power structure most definitely like what they have fixed most firmly in place, and their institutional culture demands that they never change to any significant degree. That is why the management structure of Canada’s law societies has never changed during the more than 200 years that law societies have existed in Canada, and why the method by which lawyers produce legal services hasn’t changed in much more than 200 years. That in itself should make all residents of Canada very suspicious as to the very great probability of power being very corruptly used to serve self-interest, and very successfully so because it is a power structure that has been rendered de facto unaccountable to the political-democratic process, i.e. to the electorate that is Canada’s voting public.

Do you want to leave to your children and grand-children a legal profession that no longer provides legal services for middle- and lower-income people, and has thereby given-up its special place in the foundation of Canada’s constitutional liberal democracy? A support-services method of producing legal services by all lawyers would prevent that from happening, and would increase the incomes of all lawyers because they would be providing many more affordable legal services to all income levels of society. That is why all of the manufacturing of goods and services has moved to support-services methods of production for more than 120 years.

Very relevant to the above is the video replay of the online seminar at LIZ (the Legal Innovation Zone, at Ryerson University in Toronto) entitled, Justice for All Ontario: Open the Law and Let the People Decide, (October 29, 2020, approx. 5 hours). The speakers and the various systems for providing legal services that they describe, reside in Canada, Utah, Arizona, California, and the U.K. My criticism is that none of the solutions presented deals with the root of the problem which is, the very obsolete method by which lawyers produce legal services. Instead, it requires no significant change in the way governments, law societies, and the legal profession itself, provide resources and management to the justice system, other than some additions to the types of professionals who can provide legal services, the fragmenting of the legal profession into several separate professions, and the financing of law firms by ABSs. Some significant improvement can thus be provided, but none of it is capable of ending the A2J problem by providing affordable lawyer’s services provided with all of the professional qualifications and protections of the lawyer-client relationship.

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[1] As to how the many such small “start-ups” have automated many commercially-provided legal services that have resulted in the de facto de-regulation of the legal services market, see: Suzanne Bouclin, Jena McGill, and Amy Salyzyn, “Mobile and Web-Based Legal Apps: Opportunities, Risks and Information Gaps” (SSRN, June 16, 2017).

[2] Alternative legal services (ALSs) are: clinics of various types; self-help webpages; phone-in services; paralegal and law student programs; family mediation services; and court procedures simplification projects; arbitration and mediation for dispute resolution; 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. ALSs are charity; and as such, with the exception of services provided pro bono, and limited retained services, do not provide a traditional lawyer-client relationship, involving a fiduciary duty that requires the lawyer to act in the best interests of the client.

[3] Richard Susskind has written several other books on the future of the professions (all published by Oxford University Press (OUP)); see: The End of Lawyers (2008); Transforming the Law (2000); and the, CBA Legal Futures Initiative’s, A Guide to Strategy for Lawyers, (2012). His most recent book deals with a different but related subject: Online Courts and the Future of Justice (2019).

[4] Added is this footnote, note 172: “e.g. Allen & Overy, Herbert Smith Freehills, and Simmons & Simmons. These and many others are described at http://www.lexisnexis.com.”

[5] As to electronic systems and devices having become the source of most of the evidence now used in legal proceedings and for legal services, records now being the most frequently used kind of evidence, see the following showing the complexity of electronically-produced evidence: (1) “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence” (SSRN, Jan. 1, 2020, 62 pages); (2) “Electronic Records as Evidence,” (SSRN, Jan. 1, 2020, 43 pages); (3) “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible,” (SSRN, Oct. 13, 2016, 91 pages).

[6] “Benchers” is an old English term referring to those practising lawyers who have been elected by all of the other lawyer-members of a law society to be its top executive managers for a fixed term—e.g., in the province of Ontario it is a 4-year term, and in the province of British Columbia it is a 2-year term. But being active lawyers duty-bound to clients or institutional employers, they cannot risk being short of time to be good lawyers. Therefore, they must not become involved in bringing about any significant innovations because the necessary development periods must involve substantial uncertainties as to, required time and expense, unanticipated negative consequences, and periods where the price of learning is repeated failure. Therefore, law societies never change, and they will never attempt to solve the A2J problem; see: “Law Societies’ ‘Bencher Burden’ Causes the Access to Justice Problem” (Slaw, August 6, 2020).