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

144 Pages Posted: 19 Jul 2016 Last revised: 7 Jun 2018

Ken Chasse

Independent

Date Written: May 29, 2018

Abstract

This article provides a solution to the unaffordable legal services problem in Canada (“the problem”), so as to: (1) maintain law society management structures as they are; (2) fulfilling their duties in law to make legal services adequately available; (3) avoid law societies being abolished; and, (4) enable that solution to pay for itself. What is needed is to convert the way the work is done to provide legal services from a handcraftman’s method to a support services method. There are parts of the work done for all legal services that can be more cost-efficiently done, and equally competently done by a highly specialized support service, particularly so legal research.

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. There are no “generalists.” Even the family doctor is a type of specialist. 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 because the pressure necessary for such innovation has never started.

In law firms, the degree of specialization of all factors of production and volume of legal services produced are insufficient to make legal services affordable to middle income and poorer people — particularly so legal advice services. They are the source of the problem; not routine legal services. Such people are the majority of the population that cannot afford legal services. They pay for the justice system where lawyers earn, on average, a much better income than they do.

People want “their own lawyer” and not the “alternative legal services” that are the law societies’ answer to the problem. Such services do not provide a lawyer in a fiduciary relationship to do all the work arising from a client’s legal problems and do it at reasonable cost. They are based upon a strategy of “cutting costs by cutting competence” — the competence of the person who provides the service. But the successful strategy is the opposite — increase competence by higher degrees of specialization, and volume of production, so as maximize the economies of scale that maintain a product or service as affordable. This faulty choice of strategy means that Canada’s law societies have no answer to these accusations of the angry taxpayer and self-represented litigant:

Why can’t I have an affordable lawyer of my own? I pay for the justice system where you lawyers earn a very good living compared to me. But I must use the second best “alternative legal services” such as, clinics providing advice from students, paralegals and other non-lawyers, targeted-unbundled legal services, and various forms of self-help and public legal education. You say you take this ‘access to justice’ problem very seriously. I don’t believe that. If you were sincere and honest, you would be trying to solve the problem. You can’t show me anything that you have done about trying to solve the problem. I can’t have an affordable lawyer of my own because you use your monopoly over legal services to serve yourselves, but not the needs of the public for legal services. Would you send your close relatives to “alternative legal services”? Of course not; that’s not good enough for them, but it’s good enough for us — yes us, the majority of the population who cannot afford legal services. Why should I give my respect and tax money to your justice system?

Why indeed!
The unaffordable legal services problem is not a legal problem. Law society benchers — the elected lawyer-managers of Canada’s law societies — do not have the expertise necessary to solve the problem. Needed is a permanent civil service-type institute of continuously developing expertise with which to advise all law societies as to the many ways that costs can be cut so as to make legal services affordable while competence is maintained. Elected governments, like law society benchers, are amateurs too in regard to the management problems of their government departments. But they have a civil service to advise them; benchers don’t. Without such an advisory institute, dedicated to constant surveillance of, and response to public need, problems such as unaffordable legal services will never be solved. And they will continue to inflict major damage and misery upon society until law societies are replaced with agencies that are more responsive to public need and the democratic process.

In addition to legal research, there are many other specialized support services that can be provided with such expert advice, including the automation of routine legal services at a lower cost than can the investor-owners of law firms (the ABS alternative), and advice as to marketing strategies and methods of maximizing income and client services and satisfaction. That is what law societies lack — the expertise to deal with problems as serious as unaffordable legal services. They are not legal problems. That is one of the reasons why law societies and access to justice committees fail. They are made up entirely of lawyers.

Without an advisory institute to advise and carry out benchers’ choices, it is not possible to be both a good bencher and a good lawyer. Because of that conflict, benchers do the easy things such as promoting alternative legal services, but not the hard things such as carrying out the difficult trial-and-error work necessary to solving the problem but will leave them short of time to serve their clients and employers. They don’t try to solve the problem, but merely promote those programs and services that will help the population learn to live with the problem — like providing palliative care instead of trying to cure the disease.

Because of a lack of law society leadership, lawyers have priced themselves beyond the majority of the population. The resulting vacuum is being filled in ways that work against lawyers. 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 (such as, LegalX, LegalZoom, LegalZoom (Canada), Axiom, and, Neota Logic); and, (3) of ownership of law firms by investors referred to as, “alternative business structures.” It is innovation that will speed the reduction of the per capita number of lawyers in the private practice of law.

Law society efforts and access to justice committees have been in effect for several years now, but the victims of unaffordable legal services continue to grow in size and number. The coming problems, like the present problem, will require types of expertise that lawyers’ committees and law society convocations do not have. That is why they fail.

The consequences of not learning how to solve the problem are very destructive consequences to: (1) the population; (2) the courts and the justice system; and, (3) the legal profession. The continuing growth of that destruction, combined with the great power of communication provided by the social media, the news media, the pressure groups, and opposition political parties, will not allow matters to remain as they are. Governments will have to intervene. But law societies have no answer — no program whose purpose is to solve the problem.

Because of the increasing volume and complexity of laws, people cannot deal with their legal problems by themselves. If legal services were affordable, no law firm would be short of clients. Instead, providing nothing more than alternative legal services is to ignore that volume and complexity by responding with methods of comparative incompetence and simplicity. The law and the population’s need for help to use it effectively are moving in one direction, but those who manage our law societies are moving in the opposite direction. If law societies won’t accept the principle that their duty in law to make legal services adequately available, includes making them affordable and provided by a client’s “own lawyer,” the abolition of law societies best follows.

Keywords: Unaffordable legal services problem, access to justice, A2J, CanLII, alternative legal services, bencher, justice system, law society management structure, legal services adequately available, abolition of law societies, support services method, specialization of factors of production, legal aid

Suggested Citation

Chasse, Ken, Access to Justice -- Unaffordable Legal Services' Concepts and Solutions (May 29, 2018). Available at SSRN: https://ssrn.com/abstract=2811627 or http://dx.doi.org/10.2139/ssrn.2811627

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