Law Society Accountability for the Access to Justice Problem

33 Pages Posted: 16 Dec 2018 Last revised: 27 Dec 2018

Date Written: November 27, 2018

Abstract

The majority of the population that is middle and lower income people cannot afford a lawyer’s services that are more than simple, routine legal services. That is the “access to justice” problem (the A2J problem). Law societies make no attempt to regulate the legal profession so as to make legal services affordable for that majority. The problem is victimizing not only the majority of the population, but also the functioning of the justice system, particularly so the courts system, which is being overwhelmed by self-represented litigants, and the legal profession itself. Legal services are unaffordable because there are no economies-of-scale in the practice of law. As a result, the method by which the work is done to produce legal services is obsolete.

This article proposes that law societies sponsor a transition to a “support services method” of producing legal services with the aid of a national “civil service for law societies.” That would allow their elected lawyer-managers (“benchers”) to operate as do government Cabinet ministers and not also have to be a law society’s civil service. All goods and services are now made by means of highly specialized, high volume support services. Manufacturers no longer make all parts of their goods and services themselves. Otherwise the A2J problem cannot be solved. That will leave the legal profession increasingly vulnerable to having its markets taken over by the large commercial producers of legal services, and by the great many small “start-ups” that have developed software programs to provide legal services direct to the retail market. The general practitioner will be the first to disappear. But law societies have no history of sponsoring such substantial innovations and governments do not hold them sufficiently accountable to the political-democratic process. As a result, in Canada now: law societies rule by law, but they themselves are not in fact subject to the rule of law; law society lawyer-managers (“benchers”) operate in a 19th century management structure; as a result, law societies in the 21st century are inherently incompetent as is shown by their inability and unwillingness to deal adequately with the A2J problem; because the major problems of law societies now require more than the expertise of lawyers: (1) our law societies are managed by part-time amateurs (amateurs who work only part-time); and, (2) our law societies operate like an elected government without a civil service. Such a government cannot govern, and neither can Canada’s law societies deal successfully with their major problems, such as the A2J problem; therefore, it is no longer possible to be both a good lawyer and a good bencher, but because benchers are not held accountable in fact (as distinguished from accountability in law), they do nothing to resolve that conflict of interest, which has led to incompetent management; while everything in the world around them is under constant and rapid change, law societies do not change, including doing only that which is consistent with what they have always done; law societies have successfully resisted any significant change since their creation, in particular: (1) they have not changed their management structure, nor (2) sponsored changes to the way the work is done by lawyers to produce legal services; as a result, it is impossible for Canada’s law societies to solve the A2J problem, because without change to those two factors, it is impossible to produce the large economies-of-scale that the affordability of all goods and services, including legal services, require; and so, the A2J problem exists and will persist until the rapidly increasing sophistication of software and marketing of the commercial producers enables them to displace general practitioners, or law societies adequately respond to the A2J problem and the political-democratic process; therefore, our law societies are incapable of protecting: (1) the future of the legal profession from new sources of legal services such as the commercial producers of legal services such as, LegalZoom, LegalX, and RocketLawyer; they are now in Canada. (2) the general practitioner, and small unspecialized law firm from loss of their market to those commercial producers, and therefore the disappearance of those practitioners; and, from all of the many “AI Start-Ups” that automate many legal services.); and, (3) they are incapable of protecting themselves from being abolished or drastically shrinking along with the drastic shrinkage of the legal profession itself, i.e., the reduction in the per capita number of lawyers in private practice has been on-going for more than 20 years and will be speeded-up by those commercial producers.

And so, the severely economically depressed condition of the legal profession will remain as long as these present circumstances remain; and so, because of this institutional culture and mind-set of law societies, the A2J problem of unaffordable lawyers’ services will be solved, if ever, only by some form of government-sponsored socialized law.

Effective government oversight of law societies that makes them accountable to the political-democratic process must begin now, along with beginning to replace them with permanent institutions having the requisite expertise. Or, law societies in Canada should create the equivalent of a civil service, for which there is a method to finance it described.
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Keywords: law society, access to justice, A2J, justice system, lawyers, attorneys legal profession, economies of scale, political-democratic process, support services method, practice of law, LegalZoom

JEL Classification: WGSRN, PSN, AARN

Suggested Citation

Chasse, Ken, Law Society Accountability for the Access to Justice Problem (November 27, 2018). Available at SSRN: https://ssrn.com/abstract=3291699 or http://dx.doi.org/10.2139/ssrn.3291699

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