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

159 Pages Posted: 19 Jul 2016 Last revised: 5 Aug 2020

Date Written: August 4, 2020

Abstract

Because the majority of the population cannot obtain legal services at an affordable cost, great damage is being done to the population, the justice system (particularly to court systems overwhelmed by self-represented litigants), and to the many lawyers who are, as a result, short of clients. Such is the access to justice problem (the A2J problem). The major problems of law societies are national, require more than lawyers’ expertise, and require a national civil service sponsored by all law societies acting together.
But no longer is it possible to be both a good lawyer and a good law society manager (a bencher). Benchers are practicing lawyers elected for but a few years (4 years for the Law Society of Ontario). Therefore, they do not provide long-term planning for the future of the legal profession. Law societies need the equivalent of a civil service to detect and analyze such problems, and devise and carry out solutions as approved by benchers. 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 by which it shapes its needed expertise; and, (4) is capable of carrying out projects requiring long-term development — including development that bridges law society bencher elections. Benchers cannot provide the services of a permanent civil service. Therefore, they are incapable of dealing with problems like the current A2J problem.
The solution to the unaffordable legal services problem is to convert the way lawyers produce legal services 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, e.g., legal research. Every factor of production can be highly specialized, and re-use of previously created work-product can be 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. Therefore, it should be made available for use by all lawyers.
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 collection of support services 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, at Legal Aid Ontario developed an excellent centralized legal research unit. Using a support-services method, the author specialized the major factors of production: staff; materials used; and principles of database management. Staff members are career-oriented, specialized legal research lawyers, each working in only one major area of law. 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 service 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 legal research service producing legal opinions for all lawyers at-cost, plus a profit by which to fund a national civil service for all law societies in Canada. It could facilitate the transition of the legal profession to a support-services method of production.
In contrast, “Access to Justice” committees fail because: (1) they are made up of lawyers, but the A2J 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. Law societies do not try to solve the problem, but merely help the population learn to live with the problem by supporting “alternative legal services,” which are simplistic legal services provided as charity. That is an implied public declaration that the days when middle-income and lower-income people can have “their own lawyer” are gone. If law societies won’t try to solve the problem, they should be abolished, and their regulatory functions moved to a permanent agency, having the necessary expertise and is more responsive to public need and to the democratic process.
Law societies are incapable of solving the A2J problem because their benchers constitute a 19th century management structure. They do not have the time away from their law practices, or the expertise necessary for solving such 21st century problems. But affordability is as much a law society problem as is maintaining the competence and ethical practice of lawyers—all three are an integral part of the way lawyers produce legal services. Therefore, it is not governments’ problem. But, accountability by law societies to the democratic process exists in law but not in fact. Therefore, a civil service for law societies that performs the same functions that a civil service provides to an elected government, is necessary. This article outlines the functions of such a civil service.
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; (3) the development of paralegal workers by law societies, able to work independently without lawyer-supervision; and, (4) the gradual ownership of law firms by investors by way of “alternative business structures” (ABS) proposals—the Law Society of Ontario has established a registration system to permit lawyers and paralegals to provide legal services through civil society organizations (CSOs), such as charities and not-for-profit organizations. The legal profession can do everything for itself that such proposals can do, and do it by itself without needing such investors’ money and the pressures that come with being owned. Ownership might put the fiduciary duty owed to clients at risk of being suppressed by the profit duty imposed by investors.
That is the kind of 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 provided by lawyers in a professional relationship. And it will not provide the high-quality justice system that taxpayers pay for.
Because of the volume and complexity of law, increasingly, people cannot deal with their legal problems by themselves. The population has never needed lawyers more. Lawyers should be overwhelmed with clients and the profession have a very good financial future. Instead, the opposites are true.
This article contains many references to the reports, case law, and other materials concerning these subjects.
Keywords: Access to justice, A2J problem, unaffordable legal services, Law Society of Ontario, LSO, benchers, civil service for law societies, alternative legal services, alternative business structures, legal aid, LAO LAW, support services, legal research, justice system.

Keywords: Access to justice, A2J problem, unaffordable legal services, Law Society of Ontario, LSO, benchers, civil service for law societies, alternative legal services, alternative business structures, legal aid, LAO LAW, support services, legal research, justice system.

Suggested Citation

Chasse, Ken, Access to Justice -- Unaffordable Legal Services' Concepts and Solutions (August 4, 2020). Available at SSRN: https://ssrn.com/abstract=2811627 or http://dx.doi.org/10.2139/ssrn.2811627

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
278
Abstract Views
2,426
rank
122,970
PlumX Metrics