Access to Justice Support Services or Government Intervention — A Solution for Canada's Unaffordable Legal Services Problem

67 Pages Posted: 2 Mar 2014

Date Written: February 25, 2014

Abstract

The solution to the “access to justice” problem that the majority of the population cannot obtain legal services at reasonable cost, is to enable the Canadian Legal Information Institute (CanLII) to provide the support services to all lawyers in Canada, that the LAO LAW division of Legal Aid Ontario (LAO) provides to lawyers in Ontario who do legal aid cases. In contrast, all of the literature and conferences that this most serious of law society problems has generated, recommend solutions that involve treating the symptoms of the problem but not the cause. For example, the solutions put forward by the Federation of Law Societies of Canada involve cutting the cost of legal services by using: (1) self-help solutions; (2) people of lesser competence than lawyers; (3) pro bono services. This article discusses the inadequacy of those solutions to cope with: (1) the ever-increasing volume of laws, (2) complexity of those laws; (3) technology to be understood; and, (4) the greater volume of e-records to be reviewed. Such increasing legal infrastructure creates an ever-increasing need for lawyers to interpret and apply it, which means increasing time to deliver every legal service so as to maintain its high quality. In that sense, legal services are under constant pressure to improve. The failure of Canada's law societies to produce the innovation that enables a product or service to be improved without increasing its price, has caused legal services now to be unaffordable for the majority of the population. Therefore, society and reality are going forward, but the law societies are taking the legal profession and the availability of legal services backward.

The long history of law society failure to solve this problem, and chronic inaction, is due to a lack of understanding of its cause. As a result, the solutions that have been recommended are meant to improve the existing system of providing legal services. That is the cause of the problem, the preservation of the existing system — the “handcraftsman’s method of delivering legal services whereby the same lawyer, or group of lawyers, does all of the work necessary to deliver each legal service. Instead, LAO LAW enables the use of a “support services” method of delivering legal services — like the family doctor referring patients to specialists and the rest of the medical world's infrastructure of support services; and like the car manufacturers using "special parts companies." There is no equivalent in the legal profession to the specialist that is the family doctor. If the legal profession in Canada does not make that transition, the problem will never be solved. It has to be solved, otherwise the small and middle-sized law office will disappear, and government intervention will be necessary — either by: (a) a program of socialized law by way of government-funded and cost-recovered legal services; or, (b) enabling the free enterprise competitive marketing of legal services by: (1) allowing law firms to be owned by non-lawyer commercial entities; and, (2) allowing such entities to provide legal services directly to their customers, by employing lawyers from all the disappearing law firms. That appears to be the only way in which the necessary innovation that creates the necessary cost-efficiency that drives down the price of legal services, will occur. Or, improving CanLII as a support service for all lawyers in Canada is the only way to escape government intervention. Otherwise, “Being without a lawyer means being without power in our society,” which means, the Canadian Charter of Rights and Freedoms is a "paper tiger," which means, Canada is no longer a constitutional democracy; merely a parliamentary democracy.

Keywords: access to justice, support services for legal services, constitutional democracy, parliamentary democracy

Suggested Citation

Chasse, Ken, Access to Justice Support Services or Government Intervention — A Solution for Canada's Unaffordable Legal Services Problem (February 25, 2014). Available at SSRN: https://ssrn.com/abstract=2401203 or http://dx.doi.org/10.2139/ssrn.2401203

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