Access to Justice: A Critique of the Federation of Law Societies of Canada's Inventory of Access to Legal Services Initiatives of the Law Societies of Canada

48 Pages Posted: 21 May 2014

Date Written: May 20, 2014

Abstract

Canada's unaffordable legal services problem: The Federation of Law Societies of Canada's text, "Inventory of Access to Legal Services Initiatives of the Law Societies of Canada," contradicts the law societies' duty to maintain affordable legal services. It considers the problem of unaffordable legal services as being one of mere "gaps" in the availability of legal services. And in the province of Ontario, in an expressly blunt contradiction of its statutory duty to "facilitate access to justice," the Law Society of Upper Canada's website states that the law society does not set fees for legal services, and it cannot reduce a lawyer's bill. Such publications tell the population that the law societies disassociate themselves from the problem of the unaffordability of legal services. If as a result, people were to think that the problem of unaffordable legal services must be the government's problem, the law societies would be quick to reject that solution as a violation of the principle of the independence of the legal profession. Then apparently, it's nobody's problem and duty.

And therefore, in place of lawyers' affordable services, the "Inventory of Initiatives" text summarizes the law societies' greater use of programs of "cutting costs by cutting competence" by way of, self-help, law students and paralegals, "unbundling" of legal services, and lawyers' pro bono charity.

The problem is causing four types of damage: (1) to the many thousands of people whose lives have been severely damaged for lack of legal services; (2) to the courts clogged with the very slow moving cases of self-represented litigants; (3) to the legal profession, shrinking instead of expanding to meet the ever-increasing need of the population for lawyers' services; and, (4) to legal aid organizations who provide free legal services to poor people, but whose funding governments fear to make adequate to meet the need for such services while the majority of the taxpayers cannot afford legal services for themselves.

A democracy does not have to accept such poor performance and neglect from its law societies, nor the loss of its ability to make effective use of the rule of law and constitutional rights and freedoms. Therefore, to forestall the inevitability of government intervention, Canada's law societies have immediate need for some program in place that makes persuasive their claims that they are doing something of substance, beyond mere vague expressions of concern, to solve the problem. Now, they have nothing. But undertaking to improve the Canadian Legal Information Institute (CanLII) to become a support-service providing legal opinions and related services to lawyers nationally, as has LAO LAW provided to Ontario's lawyers successfully for 35 years, would immediately show that they are taking action that will definitely have a substantial impact upon the cost of legal services. Otherwise, they will do nothing, or "too little, too late." Then government intervention will be needed, to impose a new form of management structure that is more responsive to the absence of affordable legal services than is the self-regulation of the legal profession as presently provided by Canada's law societies.

Keywords: access to justice, unaffordable legal services, law societies' inaction, cutting costs by cutting competence, government intervention to provide legal services

Suggested Citation

Chasse, Ken, Access to Justice: A Critique of the Federation of Law Societies of Canada's Inventory of Access to Legal Services Initiatives of the Law Societies of Canada (May 20, 2014). Available at SSRN: https://ssrn.com/abstract=2439526 or http://dx.doi.org/10.2139/ssrn.2439526

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