Access to Justice -- Unaffordable Legal Services' Concepts and Solutions

153 Pages Posted: 19 Jul 2016 Last revised: 8 Nov 2018

Date Written: September 25, 2018

Abstract

Because the majority of the population cannot obtain legal advice services at an affordable cost, great damage is being done to the population, the justice system, and to the legal profession. The major problems of law societies are national, require more than lawyers’ expertise, and require a national effort by all law societies acting together. It is no longer possible to be both a good lawyer and a good law society bencher (manager). Law societies need the equivalent of a civil service to detect and analyse problems, and devise and carry out solutions. A civil service is: (1) a permanent body; (2) of continuously developing expertise; (3) charged with a duty of perpetual surveillance as to public need; and, (4) capable of carrying on projects requiring long-term development — including development that bridges law society elections. Law society elected bencher-managers have none of these. Therefore they are incapable of dealing with problems like the current unaffordable legal services problem. From now on, that will be the nature of the major problems of law societies. But now, they are still 19th century institutions, and therefore they are incapable in dealing with 21st century law society problems.

The solution to the unaffordable legal services problem is to convert the way legal work is done, from a handcraftman’s-cottage industry method, to a support services method, which is method used by the medical profession and all of competitive manufacturing. There are parts of the work done for most legal services that can be more cost-efficiently done, and more competently done, by a highly specialized, high production volume support service, particularly so legal research. Every factor of production is highly specialized and re-use of previously created work-product is maximized so as to maximize the economies of scale that large-scale production volumes produce — “nothing is as effective at cutting costs as scaling-up the volume of production.” The support services method provides the highest degree of competence with the greatest cost-efficiency. It is used everywhere except in the legal profession. Without the necessary pressure that compels innovation, cost-efficiency is not maintained. The legal profession therefore lacks the ability to deliver legal services affordably.

No doctor’s office provides all treatments and remedies for all patients the way a lawyer’s office does for all clients. The whole of the medical services infrastructure is made up of highly specialized, high volume, mutually interdependent support services. Similarly, the “parts industry” is a massive, highly specialized support service for the automobile manufacturers. The innovation to bring about the highest degree of competence and the greatest economies of scale never stops. In the legal profession that type of innovation never started because the pressure that causes such innovation has never happened in the private practice of law.

But because of government pressure, LAO LAW, a legal research unit at Legal Aid Ontario developed the best centralized legal research unit in Canada. Using a support-services method, the author specialized all factors of production: staff, materials used, and principles of database management. Staff members are career-oriented, specialized legal research lawyers. By its ninth year of development, it was producing legal opinions at the rate of 5,000 per year for lawyers in private practice who do legal aid cases (a “judicare” model). Lawyers use it because it helps them make money and serve their clients better.

That service should become a national service producing legal opinions for all lawyers at cost including funding for a national civil service-type advisory institute for all law societies in Canada. “Access to justice” committees fail because: (1) they are made up of lawyers, but the problem is not a legal problem; and, (2) they assume without analysis that the solution lies in providing improvements to the existing method by which legal services are produced when in fact the cause of the problem is “the method” itself; it is obsolete. They also supply “alternative legal services” such as, clinics, targeted legal services (limited retainer services), pro bono work, and self-help. None provides people with “their own lawyer” — a lawyer in a fiduciary relationship, who will do all the work arising from a client’s legal problems and do it affordably. Eventually, the power of communication that we all now have via the social media and news media will end that.

Law societies do not try to solve the problem, but merely help the population get used to living with the problem by supporting alternative legal services. That is an implied public declaration that the days when middle income and poorer people can have “their own lawyer” are permanently gone. And, it is a confession of an intentional incompetence to solve the problem. It is a breach of their legal duty to make legal services adequately available. If they don’t try to solve the problem, law societies have no reason to exist. They should be abolished, and their regulatory functions moved to another agency that is more responsive to public need and the democratic process.

Law societies are incapable of solving the problem because their bencher-managers are a 19th century creation that does not have the time away from their law practices, or expertise necessary for solving such 21st century problems. And, accountability to the democratic process exists in law but not in fact. Therefore an advisory institute, that performs the same functions that a civil service provides to an elected government, is necessary. This article outlines the functions of such an advisory institute, including the automation of routine legal services. The same can be done by any state or group of jurisdictions having sufficient population.

Innovation is happening. But it is the innovation of: (1) alternative legal services that cut costs by cutting the competence of the people who deliver the legal services; (2) the commercialization and industrial production of legal services outside the control of law societies; and, (3) ownership of law firms by investors by way of “alternative business structures” (ABS) proposals. The legal profession can do everything for itself that such proposals can do, and do it by itself without need of such investors’ money and the duties that come with being owned to any degree. Otherwise the fiduciary duty is at risk of being severely suppressed by the profit duty imposed by investors.

It is innovation that will reduce the number of lawyers in the private practice of law. It is not the kind of innovation that will give the population what the law requires by way of legal services by lawyers — their lawyers, nor provide the justice system that the taxpayer pays for, nor change the poor economic future that the legal profession faces.

Because of the increasing volume and complexity of law, people cannot deal with their legal problems by themselves. The population has never needed lawyers more. But law societies do not try to solve the problem of unaffordable legal services. The law and those who manage our law societies are going in opposite directions. If law societies won’t accept that their duty in law to make legal services adequately available includes making legal services affordable, the abolition of law societies best follows.

This article contains many references to the reports, case law, and other materials concerning these subjects.

Keywords: Law society management structures, Access to justice, A2J, Alternative legal services, judicare model, alternative business structures, Law Society of Upper Canada, CanLII, justice system, unaffordable legal services, legal research, clerking, judges’ clerks, LSUC, bencher, rule of law, cause of jus

Suggested Citation

Chasse, Ken, Access to Justice -- Unaffordable Legal Services' Concepts and Solutions (September 25, 2018). Available at SSRN: https://ssrn.com/abstract=2811627 or http://dx.doi.org/10.2139/ssrn.2811627

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