1. Management by part-time amateurs (benchers), whose work is mostly charity. “Amateurs” because they don’t have the expertise necessary for solving difficult problems such as the unaffordability of legal services (and they don’t try to get it);
2. An unwillingness to attack the causes of difficult problems such as the unaffordability of legal services because their main duties are to their clients and institutional employers, who are their sources of income;
3. A refusal to innovate because benchers have not reached the point where the fear of the consequences of not changing is greater than the fear of the consequences of changing (e.g., the fear of the consequences of a failed innovation);
4. The lack of accountability to the democratic process, i.e., benchers’ main duty is to the public, to make legal services adequately available, but they are elected by lawyers, and accountability to an elected government has not been effective, and in fact is not operative;
5. The absence of a process for developing continuing expertise for solving such problems, such as a civil service provides to an elected government;
6. The necessary but unknown qualities of time and trial-and-error effort to solve such problems, conflict with fulfilling the incentives for becoming a bencher, e.g., becoming a judge or obtaining other government appointments, or formally establishing the fact of one’s success and popularity, and giving back to the profession the benefit of one’s years of experience, and being re-elected as a bencher;
7. A conflict of interest between the law society’s duty to regulate the legal profession so as to make legal services adequately available, and its duty to represent the interests of lawyers, i.e., law societies’ regulatory powers conflict with their representative powers, and being elected by their lawyer members, benchers deal with the problems and complaints of those who elect them;
8. The absence of public pressure, i.e., insufficient opportunity and ability of the public to affect the making of law society policy and practice, and lay benchers are not the professional experts needed to adequately provide for such public in-put and represent the public interest, as they may have been in the 19th century;
9. The absence of adequate government surveillance as to: (1) the use by law societies of the monopoly over the provision of legal services granted by law, such as the use of that monopoly as a shield against unfavourable economic circumstances; and, (2) surveillance of the performance of duties imposed upon law societies by law, e.g., s. 4.2 of Ontario’s Law Society Act; and,
10. The absence of pressure from lawyer members upon their law societies to deal with such problems, due to a lack of knowledge of the causes, and the corresponding failure of law societies to so inform themselves and inform their membership.
The resulting conflict of interest and refusal to innovate has created the problem. To compensate for such defects, the Federation of Law Societies of Canada should sponsor the creation of a national institute that would provide that necessary permanent development of expertise function that law societies lack.
If law societies choose to ignore such advice, government intervention could impose a Canadian version of the 2004 Clementi Report in the United Kingdom by moving law society regulatory powers to such an institute, leaving law societies with the representative powers concerning lawyers’ interests. Unfortunately, law society benchers are elected by lawyers, not the public.
As to funding, CanLII should be scaled up to provide, at cost, the legal opinion and other research materials provided by Legal Aid Ontario to lawyers in private practice who service legal aid cases. It has a 36-year history of success and know-how. But CanLII would have a national market of all lawyers and judges. And there are many university and other institutes connected with and studying the justice system with whom to form agreements, including matters of funding.
But instead, the law societies’ response to the problem is a “cutting costs by cutting competence strategy” of alternatives to the affordable, fully retained lawyer, such as:
• legal clinics of various types;
• programs for targeted (unbundled) legal services (as distinguished from a full retainer to provide the whole legal service);
• pro bono charity, for short cases only;
• paralegal and law student programs;
• family mediation services;
• social justice tribunals;
• court procedure simplification projects;
• a national self-represented litigants project; and,
• arbitration and mediation for alternative dispute resolution.
Such programs have no capacity to make legal services affordable again. And as these alternatives employ an increasing number of lawyers, the fewer will be the lawyers in whose interest it is to solve the problem.
They will gradually become permanent i.e., the law societies’ complete and permanent answer to the unaffordable legal services problem, and thus a good example of benchers’ taking a simplistic approach to their duties.
But such evolution in the provision of legal services leaves out:
1. An accountability to the democratic process by benchers for the use of their powers and the performance of their duties as created by law;
2. The population’s views and desires as to this evolution in the use of the legal profession’s monopoly over the provision of legal services to impose a “cutting costs by cutting competence” limitation upon people’s ability to access justice;
3. The population’s consent to the use of that monopoly for the economic purpose of shielding the legal profession from having to change its method of delivering services so as to be compatible with the economic ability of the population to afford the profession’s legal services; and,
4. The taxpayers who finance the justice system in which the legal profession, including benchers, earn an income that is considerably better than the average income of taxpayers, but the majority of those taxpayers cannot have a lawyer who can provide legal advice services at reasonable cost.
And so law societies have no answer for the angry taxpayer who demands to know, via social media, or news media:
“Why can’t I have an affordable lawyer of my own? I pay for the justice system where you lawyers earn a very good living compared to me. But I must use the second-best solutions of clinics, and pro bono and targeted legal services, and various forms of self-help. You say you take this ‘access to justice’ problem very seriously. I don’t believe that. If you were serious and ethical, you would be trying to solve the problem. You can’t show me anything that you have done about trying to solve the problem. I can’t have an affordable lawyer of my own because you use your monopoly over legal services to serve yourselves, but not the needs of the public for legal services. Why should I give my respect and tax money to your justice system?”
For a fuller description see, “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem.” And see related articles on my SSRN author’s page.
Ken Chasse is records management lawyer and member of the law societies in Ontario and British Columbia.