The Failure of Law Societies to Accept Their Duty in Law to Solve the Unaffordable Legal Services Problem
There are five propositions that Canada's law societies must accept if their statements as to what they refer to as their “concern about the access to justice problem” are to have credibility:
1. The precise statement of the nature and extent of the problem of unaffordable legal services is: “the majority of the population cannot obtain legal services at reasonable cost.”
2. The duty to make affordable legal services available to the population arises from the law that requires the law societies to regulate the legal profession and the monopoly it has over the provision of legal services. For example, in the province of Ontario, that duty of the Law Society of Upper Canada is made express and precise by the statutory duties created by the Law Society Act, s. 4.2 of which states:
4.2 In carrying out its functions, duties and powers under this Act, the Society shall have regard to the following principles:
（1） The Society has a duty to maintain and advance the cause of justice and the rule of law.
（2） The Society has a duty to act so as to facilitate access to justice for the people of Ontario.
（3） The Society has a duty to protect the public interest.
（4） The Society has a duty to act in a timely, open and efficient manner.
（5） Standards of learning, professional competence and professional conduct for licensees and restrictions on who may provide particular legal services should be proportionate to the significance of the regulatory objectives sought to be realized. 2006, c. 21, Sched. C, s.7.
3. Therefore, if the problem of unaffordable legal services exists, it is the law societies' fault that it exists. If the law societies had been sufficiently responsive to the population's need for legal services, the problem would not exist.
4. Therefore, it is the exclusive duty of the law societies to solve the problem of unaffordable legal services.
5. If the law societies cannot make legal services available to the population, they have no purpose. Therefore a different management structure has to be put in place that can regulate the legal profession so as to make affordable legal services available.
Note that s. 4.2 of Ontario's Law Society Act provides no exceptions to the Law Society's duties in regard to: （1） the rule of law; （2） access to justice; and, （3） acting in a timely, open and efficient manner. It cannot be said, as the Law Society of Upper Canada's history of failing to act would imply, that the unaffordable legal services problem is an exception to such duties. And dare Canada's other law societies reject such duties because their law society legislation is less explicit as to their duties?
But as though to deny such duties, Canada's law societies have allowed the problem to develop over decades without doing anything. That is because they do not accept the principle that the duty to solve the problem arises from their duty in law to regulate the legal profession. For example, there is a webpage within the Law Society of Upper Canada's website entitled, “Your Legal Bill - Too High?” It begins: “The Law Society does not set fees for legal services and cannot reduce a lawyer's or paralegal's bill that you think is too high.” And it concludes, “If you have a complaint about your lawyer or paralegal that does not involve the amount of the bill, see the Law Society's page on Complaining about a lawyer or paralegal. ” Nowhere does either webpage say, “however, these are the proactive steps that we are taking to make legal services affordable,” followed by a list of such “steps” in proof of being sufficiently proactive. There are no such “proactive steps.” But if it is argued that in fact they do exist, then why for decades has the problem continued to grow worse?
If it is not the law societies' duty to solve the problem, it is nobody's duty. It cannot be government's duty to deal with unaffordable legal services because such government intervention into lawyers' fees would violate the principle of the independence of the legal profession from government intervention. If it is nobody's duty, then that majority of the population that cannot afford legal services must accept as a perpetual reality, that they must deal with their legal problems without the help of lawyers. That is the conclusion one must draw from the Federation of Law Societies of Canada's 2012 published text, Inventory of Access to Legal Services Initiatives of the Law Societies of Canada （click on the highlighted word “inventory ” in the last sentence）。 Those “initiatives,” are existing, operative programs. They are of three types: （1） self-help programs; （2） “cutting costs by cutting competence” programs, by way of greater use of, students, paralegals, and “unbundled” legal services, wherein the client does more with the intended result that the cost will be lower because the lawyer does less; and, （3） pro bono charity, which, albeit commendable, is too small to have any significant impact upon the volume of legal services needed. Nor will it service those long and difficult cases that spend a year or two in the courts, requiring multiple proceedings, meetings, and the drafting of many documents; they being cases generated by all income levels of society. Accordingly, the first paragraph of this “Inventory of Initiatives” text defines the problem as being merely, “gaps in access to legal services.” The fact that the majority of the population cannot obtain legal services at reasonable cost is hardly a “gap” in the availability of legal services. It appears that the definition of the problem has been crafted to suit these operative programs, rather than an accurate definition of the problem used to determine the programs needed. If the answer to be accepted is that this “Initiatives” text was not intended to deal with the unaffordable legal services problem, then what published law society text describing operative programs does? There is none.
No democracy need accept the proposition that it must do without affordable legal services because the unaffordability of legal services is inevitable, and like the weather and uncontrollable economic forces, it cannot be changed. Nor accept that we are no longer a constitutional democracy. That majority needs a lawyer in order to make effective use of the Constitution, particularly so the Canadian Charter of Rights and Freedoms . For that reason the legal profession has traditionally been referred to as, “the gatekeepers of the constitution.” Now unaffordable legal services have cast us as the obstructers of the constitution. This situation violates the duties imposed upon the Law Society of Upper Canada by s. 4.2 of Ontario's Law Society Act, to maintain and advance the cause of justice and the rule of law, and to act so as to facilitate access to justice for the people of Ontario.
Meanwhile, these four types of damage caused by the problem are getting worse: （1） to the population in that there are many thousands of people whose lives have been damaged for lack of legal services; （2） to the courts in that they are being clogged, as judges have warned, by high percentages of self-represented litigants, because their cases move much more slowly than those that have lawyers; （3） to the legal profession in that it is shrinking and is predicted to have a very negative future of contracting and of law firms failing; and, （4） to legal aid organizations because it is politically very unwise for governments to fund them better with taxpayers' money, to enable them to provide free legal services to more poor people, while the majority of the taxpayers cannot obtain legal services for themselves at reasonable cost. The problem must be causing more damage in one day than have all of the incompetent and unethically practising lawyers in the whole history of Canada. But the law societies have failed to be proactive about unaffordable legal services, but they are in regard to the much less serious problem of incompetent and unethical lawyers. Conclusion: the law societies do not accept the proposition that the law imposes upon them a duty to do all that it is possible for them to do, to bring about affordable legal services.
Innovation that moves the legal profession from its present “handcraftsman's method” of delivering legal services to a “support services method” will solve the problem of unaffordable legal services. Now, because there is no reliance on specialized support services, no law firm has available to it the required degree of specialization, combined with the sufficiently scaled-up volume of production, that enables a product or service to improve without having to increase its price. Without a method that constantly increases cost-efficiency, that cost-price conflict cannot be resolved. The price must increase. The legal profession must be constantly improving its services, in the form of maintaining their high quality in a situation wherein there is a need to provide increasingly more time delivering each service-more time because of: （1） the rapidly increasing volume of laws; （2） their greater complexity due inter alia, to the complexity of the technology upon which they are based and impacted; （3） the greater volume of technology to be understood; and, （4） the much greater volume of relevant electronic records to be coped with. Therefore the problem of unaffordable legal services is inevitable.
For example, LAO LAW, the centralized legal research unit at Legal Aid Ontario （LAO）， in its ninth year of development in 1988, was producing close to 5,000 complete legal opinions per year for lawyers in private practice who service legal aid cases. My staff and I （as LAO LAW's first Director of Research）， did that by developing a much higher degree of specialization than exists in any law firm, of: （1） its research staff; （2） a system heavily dependent upon maximizing the re-use of previously created work-product; and, （3） its procedures for database management of its work-product. The constant refinement of each produces a continuingly improving cost-efficiency, which when combined with a greatly scaled-up volume of services rendered, produces a reduction in the costs of production that is not possible in any other part of the legal profession. （See: Ken Chasse, Access to Justice-Innovations for the Unaffordable Legal Services Problem, inter alia: The Technology of Centralized Legal Research, available for free download from the Social Science Research Network.）
In comparison, no law firm produces 5,000 of any legal service per year. LAO LAW's technology of centralized legal research enables it to be a sophisticated support service for Ontario lawyers who provide legal services to those people to whom LAO grants legal aid certificates for legal services. Other lawyers have no support services. Their law firms do all of the work required themselves, i.e., they work by a “handcraftsman's” method instead of a support-services method of providing legal services. Therefore it is impossible for such law firms to achieve the necessary cost-efficiency to solve the problem of unaffordable legal services. They do not have a sufficient degree of specialization or scaled-up volume of production to successfully cope with the cost-price conflict. That is why the “handcraftman's” method has been abandoned everywhere else in favour of a support-services method for the large scale production of goods and services. There was no rule requiring lawyers to use LAO LAW's services. It won its market and reputation by the quality and rapid delivery of its work, and because it enables lawyers to increase their incomes by the greater cost-efficiency provided by such support services. If it didn't, they wouldn't use LAO LAW's services.
The spreading of costs over thousands of units produced magnifies small cost-savings into big cost-savings to a degree that no law firm is capable of. And the greater that volume, the less each product or service bears of the total costs of production. And, the greater is the advantage that can be taken of the fact that many costs are fixed costs in that they do not vary proportionately with the volume of production. And such volumes provide the revenue that enables the development of a high degree of specialization. Therefore the maximizing of competence can be combined with high volumes produced. This support- services method is based upon the engineering principle that states, “nothing is as effective at cutting costs as scaling-up.” As a result, LAO LAW can do legal research and provide related support services far more cost-efficiently than can any law firm. And so it is that it now has a 35-year history of successful innovation as a sophisticated support-service that has saved LAO millions of dollars. But it needs better funding now in order to adequately show what its methods of centralized legal research can do. Its present situation and services are different than mine were.
[end of Part 1 of the, Access to Justice in Canada blog publication on August 12, 2014]
None of the experts who have studied LAO and made recommendations for its future, examined LAO LAW, its success, or its methods. That is because they are merely lawyers. But the creation of LAO LAW's methods, like the unaffordable legal services problem, are not legal problems. In spite of the long standing worsening of the problem, never have the law societies said, “obviously we need the help of other fields of expertise.” But one does not enlist the help of such expertise unless one accepts that one has a problem and a duty to solve it.
Improvement in legal services is necessary, not as to their quality, but as to maintaining their quality while having to cope with, more laws, more complexity in our laws, more technology to be understood, and more records to be coped with. That is the result of: （1） our lives becoming more technology-dependent, especially electronic records dependent, which requires more legal infrastructure to control the use of that technology; and, （2） demands that the rule of law be made to apply in many new areas such as, the great expansion of the scope of rights and freedoms caused by the Canadian Charter of Rights and Freedoms which now produces issues in every field of law, and by environmental, privacy, and electronic commerce laws, and a greatly expanded Criminal Code. Those two forces are thus impacting every field of practice. So coping adequately, requires that legal services take more time to deliver, and time has to be paid for. But if there is no mechanism whereby such time can be provided without having to increase the price of legal services, the unaffordable legal services problem is inevitable.
The medical profession and all of large scale competitive manufacturing cope with that cost-price conflict by constant innovation that steadily improves their cost-efficiency. They use a support services method of production. The legal profession doesn't, therefore the price of legal services must increase faster than do average incomes, the consumer price index . As a result, the legal profession has priced itself beyond what the majority of the population can afford to pay for legal services.
The handcraftsman's method has law offices do all the work necessary to deliver each legal service themselves. Whatever volume of contracting-out of work there is, is extremely small in comparison. In sharp contrast, car manufacturers use “special parts companies” that specialize by each making a limited number of special parts, but they each make many thousands, if not millions of them. Therefore they, like the car manufacturers themselves, have the necessary combination of a very high degree of specialization along with very high production volumes that enables the development of a high degree of specialization of staff, equipment, and manufacturing methods. Similarly, in the medical profession's huge medical services infrastructure, each part of it is a support service for all of the other parts. No doctor's office provides all treatments for all patients. For example each highly specialized surgeon works within a narrow specialty and does a large volume of work in that specialty. The specialist who was “the surgeon,” is now several individually specialized types of surgeon.
There is no equivalent in the legal profession, and it has no equivalent of the family doctor, i.e., a specialist in knowing the whole medical infrastructure of support services so as to maximize their use in a cost-efficient way. These are very flexible systems, easily able to create new types of specialization. The legal profession has no counterpart. The Law Society of Upper Canada's Certified Specialist Board is reactive to requests for the creation of new lawyer-specialists, but not proactive in determining and satisfying the need for them.
The support services method produces four very desirable benefits to a degree not possible by the handcraftsman's method: （1） a high degree of competence; （2） very low costs of production; （3） a minimizing of response time; and, （4） a minimization of the probability of committing an error that hurts the patient, client, or customer. Compare the legal profession's giving the bulk of its legal research work to law students, legal research being a “foundation service” for all other legal services involving legal advice. That produces the exact opposite of those four benefits. And such strategy of “cutting costs by cutting competence” will never solve the problem. It lacks the necessary combination of a sufficiently high degree of specialization and scaled-up volume of production.
Would the medical profession give the “foundation services” provided by the family doctor to medical students? Unless lawyers and doctors are looking over the shoulders of their students while they do each part of their work, they are not being adequately supervised so as to justify leaving such important foundation services to their students. But to move to a comparable support services method, it is not necessary that any lawyer or law firm change, except to choose to use support services relevant to their areas of practice.
Another example of a highly specialized support service, is the “electronic discovery lawyer,” who should be made available to all law firms. See for example this announcement made in August, 2013: 'BLG hires Canadas leading electronic discovery lawyer . And LAO LAW has created a number of related support services, spun-off from its initial legal research service. It is an on-going process of creativity. The limit for creating such necessary support services is the limit of the law societies' willingness to bring them about. Now, there is no willingness, therefore there are no support services. Therefore the problem grows worse.
I want the solution to the problem of unaffordable legal services to be a law society solution, because it is the best solution. But given the law societies' history of failing to innovate, it is not going to happen. The necessary first step towards solving the problem is the acceptance of the five propositions stated at the beginning of this article. The second step is to determine the exact cause of the problem. The third step is to achieve a successful solution by way of support services. The law societies have shown no commitment to take on that obligation. They appear not to understand the problem or its cause. Similarly, all that has been published about the problem shows that same lack of understanding, i.e., it recommends various improvements to the existing method of delivering legal services, when in fact, the cause of the problem is the method itself. They have not had the opportunity that I had at LAO LAW-to go beyond mere recommendations to the trial-and-error work that teaches problems' causes and solutions.
Failure is necessary for success, if one learns from one's failures. That was my experience for nine years at LAO LAW while under the fear that if I didn't generate a sufficiently large cost-saving for LAO, I was out of a job. What I solved was a smaller version of the very same problem of unaffordable legal services. The law societies could have solved the bigger version had they felt a comparable pressure and fear. But such organizations do not change until the fear of the consequences of not changing is greater than the fear of the consequences of changing, i.e., fear of the consequences of failed innovations. Therefore the following principle controls the thinking and institutional culture of such organizations until change is forced upon them with a resulting loss of power, pride, and reputation: “if it is isn't broken, don't fix it.” But “it” will never be thought to be “broken,” until there is that necessary fear. If the law societies were sufficiently accountable for their exercise of the powers the law has given them, such principles would not be allowed to control their making of policy and practice.
What is being published about the consequences of the problem is very negative: （1） the legal profession is shrinking as will lawyers' incomes, along with the number of law firms; （2） young lawyers can forget about those secure jobs and partnerships, and instead become independent “agile lawyers” available to help law firms with peak period workloads, i.e. become poorly paid piece-work lawyers unable to develop a specialty or secure income; and, （3） the rich will have lawyers and the very poor will have free Legal Aid services, but the great majority in the middle, being the majority of taxpayers, will not have lawyers to help them.
That is “two-tier justice,” which should be declared to be unconstitutional and require government intervention to preserve and make adequately available the rule of law. See, British Columbia （A.G.） v. Christie,  S.C.C. No. 21,  1 S.C.R. 873, at paras. 19-27. The Court stated in part:
22. … Lawyers are a vital conduit through which citizens access the courts, and the law. They help maintain the rule of law by working to ensure that unlawful private and unlawful state action in particular do not go unaddressed. The role that lawyers play in this regard is so important that the right to counsel in some situations has been given constitutional status.
27. We conclude that the text of the Constitution, the jurisprudence and the historical understanding of the rule of law do not foreclose the possibility that a right to counsel may be recognized in specific and varied situations. But at the same time, they do not support the conclusion that there is a general constitutional right to counsel in proceedings before courts and tribunals dealing with rights and obligations.
If the current problem of unaffordable legal services, which makes the rule of law ineffectively available to the majority of the population, is not one of those “specific and varied situations,” then nothing is. Therefore the Canadian Charter of Rights and Freedoms can be argued to require that the agency responsible for this unavailability of the rule of law, be required to take effective action and be held responsible for the current situation and its consequences, and that the government be required to ensure that it happens.
With that constitutional principle in place, when people who cannot afford lawyers apply to the courts for help, the courts should order the law societies to pay for their lawyers' services. Then the necessary pressure to solve the problem would exist, as would the necessary innovation, and as would the solution. Money talks, particularly so when it is the Constitution that does the talking.
The future doesn't have to be that way. Because of the forces that are greatly increasing the volume of laws and their complexity, etc., people are increasingly less able to solve their legal problems by themselves, and thus forced to accept the solutions provided by “cutting costs by cutting competence” strategies. Lawyers are needed more than ever before. Therefore, if legal services were affordable, lawyers would have more work than they can handle. The legal profession and our law schools would be expanding instead of contracting.
Instead, law societies are looking for an easy way out by considering ABS's （alternative business structures）， i.e., non-lawyer entities investing in law firms. They can perhaps speed the adoption of innovations such as the “packaging” of those routine legal services that can be provided more cost-efficiently by software applications such as for writing simple wills and incorporating small companies. But they cannot do the same to legal services that facilitate the making of value judgments and giving legal advice. Software is the product of numbers, but value judgments and legal advice and decisions must be expressed in words. So why should Canada's legal profession surrender its professional virginity, purity, and profits to investors owning law firms?
Better to increase the attractiveness of legal services by enabling lawyers to provide related services accompanying their legal services, e.g., family law lawyers providing financial planning advice, and law firms providing accounting and tax advisory work, and litigation lawyers working with experts who improve and maintain their clients' electronic records management systems, because records are the most frequently used kind of evidence and are completely dependent on their records management systems for everything, particularly their “integrity” （which is what the electronic records provisions of the Evidence Acts require be proved for admissibility; e.g., section 31.2（1）（a） of the Canada Evidence Act -see: Ken Chasse, “Electronic Records as Evidence ,” and the other “records as evidence” articles on 'my SSRN authors page , for free download）。
This is a human-caused problem that can have a human-caused solution （e.g., see, Ken Chasse, “‘Access to Justice-Canadas Unaffordable Legal Services-CanLII as the Necessary Support Service ,” （available for free download at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2365818））。 But given law society performance, I cannot recommend to my grandchildren that they become lawyers. Confession is the road to redemption; denial, the road to despair. But there will be no confession of responsibility for the problem before the Benchers who currently manage our law societies are happily retired. And then young lawyers, and subsequent generations of lawyers will be left to despair. Therefore, to cut their loses, they should campaign for government intervention that will impose a management structure that will again make legal services affordable.
See further: （1） the much more in-depth articles on this subject that I have posted on the Social Science Research Network （SSRN）， which are free to be downloaded from 'my SSRN authors page at: . They provide the footnotes supporting all that is said herein; and, （2） my Slaw blog posts: CanLII as the Solution to the Unaffordable Legal Services Problem , Oct. 24, 2013; and, Government Intervention to Solve the “Access to Justice” Problem is Inevitable , August 9, 2013; and, The End of the Monopoly Over the Provision of Legal Services and Prosecutions for the “Unauthorized Practice of Law”, Parts 1 & 2 , Feb. 5 &12, 2013.
Ken Chasse（“Chase”）， member of the Law Society of Upper Canada （Ontario） since 1966, and of the Law Society of British Columbia, Canada, since 1978.