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

143 Pages Posted: 19 Jul 2016 Last revised: 29 Aug 2017

Ken Chasse

Independent

Date Written: August 28, 2017

Abstract

Because of the unaffordability of legal services problem (“the problem”) great damage is being done to the population, the justice system, and to the legal profession itself, i.e., if the majority of the population cannot obtain affordable legal services, then the majority of law firms is very short of clients. The major problems of law societies are: (1) national; (2) require more than lawyers’ expertise; and, (3) 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). A “civil service for law societies is needed,” i.e., an institution of permanently developing expertise. Now, law societies are like an elected government without a civil service. Therefore they are incompetent.

Law society elected bencher-managers are practicing lawyers first, and managers a poor second. They are still 19th century institutions, incapable of dealing with 21st century law society problems—problems such as the substantial incursions into the market of general practitioners by the highly competitive commercial producers of legal services, such as LegalZoom, LegalX, etc.

Law societies, and their “access to justice” committees, fail because: (1) they are made up entirely 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 It is obsolete.

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 it never started.
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.” There are parts of the work done to produce all legal services that can be much more competently, and cost-efficiently 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 is used everywhere except in the legal profession, (and where other forms of monopolized production prevail). Without the necessary pressure that compels innovation, cost-efficiency is not maintained. As a result, the legal profession lacks the ability to deliver high quality legal services affordably.

Because of government pressure (unique in its application to the legal profession), 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, i.e., staff, materials used, and principles of database management. By its ninth year of development, it was producing legal opinions at the rate of 5,000 per year for Ontario lawyers in private practice who do legal aid cases (a “judicare” model of legal aid). Lawyers use LAO LAW 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, and the funding for a national civil service-type institute for all law societies in Canada.

The law societies’ response to the problem has been merely to help the population learn to live with the problem, but not to try to solve the problem. They do no more than to sponsor, “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. Alternative legal services are in effect, a public declaration that the days when middle and lower income people can have “their own lawyer” are gone. And, it is a confession of an intentional incompetence to solve the problem—like providing palliative care instead of trying to cure a life-threatening disease. It is a breach of a legal duty to make legal services adequately available. If they don’t try to solve the problem, law societies have no reason to exist.

Because they are not accountable to the democratic political process in fact (but merely in law) law societies are incapable of solving the problem. Therefore an institute serving all of Canada’s 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 an institute. 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 (support services methods cut costs by increasing competence); (2) the commercial production of legal services outside the management 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. Otherwise the lawyers’ fiduciary duty to clients is at risk of being severely suppressed by the profit duty imposed by investors. The solicitor-client (attorney-client) relationship has important advantages over the merely buyer-seller relationship of the commercial producers.

The saying, “there are no economies-of-scale in the practice of law” is true only because lawyers have failed to demand that their law societies make it untrue. “Organizations do not change until the fear of the consequences of not changing is greater than the fear of the consequences of changing.” Therefore, the problem will not be solved until lawyers and governments make their law societies fear abolition.

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, LSal research lawyers, clerking, judges’

Suggested Citation

Chasse, Ken, Access to Justice -- Unaffordable Legal Services' Concepts and Solutions (August 28, 2017). Available at SSRN: https://ssrn.com/abstract=2811627 or http://dx.doi.org/10.2139/ssrn.2811627

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