Access to Justice -- Unaffordable Legal Services' Concepts and Solutions
TL;DR: In this paper, the authors present 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) fulfill 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.
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.
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11 May 2020
TL;DR: In this paper, the authors investigate the effects of amendments to Ontario's Rules of Civil Procedure that came into effect on January 1, 2010 and were subject to interpretation by the Supreme Court of Canada in a 2014 decision.
Abstract: This dissertation investigates the effects of amendments to Ontario’s Rules of Civil Procedure that came into effect on January 1, 2010 (the “2010 Amendments”) and were subject to interpretation by the Supreme Court of Canada in a 2014 decision (“Hryniak”). Hryniak concerned summary judgment. However, the dissertation largely concentrates on the effects of Hryniak and the 2010 Amendments outside the summary judgment context, inquiring into whether Hryniak’s call for a “culture shift” and the 2010 Amendments’ enshrinement of the principle of proportionality have had noticeable effects. It does this by analyzing three aspects of Canadian procedural law that were not amended in 2010 but were amended (or enacted) shortly thereafter and can facilitate or hinder access to justice depending on how they are used: 1) jurisdiction motions; 2) dismissals without an oral hearing, potentially sua sponte; and 3) interlocutory appeals. This more quantitative analysis of case law was complemented by results of qualitative surveys of lawyers about their experiences with Hryniak and the 2010 Amendments. With regard to the three procedural rules analyzed, the dissertation makes suggestions for their re-interpretation to minimize unnecessary interlocutory wrangling. At a broader level, the dissertation concludes that there have been positive effects of Hryniak and the 2010 Amendments, but they have been limited, and tend to have been greatest in areas where tailored amendments in procedural law have occurred rather than in response to broader statements that a “culture shift” is required in the conduct of litigation. In any event, more work is required outside the realm of civil procedure reform to effectively improve access to civil justice in Canada.
104 citations
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TL;DR: The authors argued that the strength of a nation's rights, freedoms and rule of law lies not in its Constitution, but in its politics and that a racist government is a reflection of the success of racist groups, in spite of such declared protections in the written constitution upon which that government stands.
Abstract: This article demonstrates the truth of this proposition: “The strength of a nation’s rights, freedoms and rule of law lies not in its Constitution, but in its politics.” And so, a racist government is a reflection of the success of racist groups—they are parts of the same political force, in spite of such declared protections in the written constitution upon which that government stands. The riotous insurrection at the Washington capitol building on January 6, 2021, and, Canada’s 1970 FLQ October Crises caused by Quebec terrorists wanting to have Quebec separate from Canada, are compared as examples of populist domestic terrorism. Both are populist-inspired terrorist attacks upon government. Conversely, as examples of government terror imposed upon severely abused sections of a country’s population, the World War Two (WWII) internments of the Japanese Pacific coastal populations by the federal governments of Canada and the U.S are contrasted. Also described is Canada’s 19th and 20th century history of racial discrimination against its Japanese and Chinese populations. Political events reflect upon the instant strength of constitutionally-guaranteed rights, freedoms, and rule of law. And judicially provided remedies and damages obtained later for their infringement and denial, determine their protective and deterrent value. Before and even after WWII, the Canadian population and its politics were still far too racist to support truly liberal, constitutionally-entrenched rights, freedoms, and the rule of law, such as has been established since April 17, 1982, by the Canadian Charter of Rights and Freedoms.
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TL;DR: The U.S. faces a mounting crisis in access to justice as mentioned in this paper and it is essential that the legal profession abandon the prohibition on the corporate practice of law in order to remedy the access problem.
Abstract: The U.S. faces a mounting crisis in access to justice. Vast numbers of ordinary Americans represent themselves in routine legal matters daily in our over-burdened courts. Obtaining ex ante legal advice is effectively impossible for almost everyone except larger corporate entities, organizations and governments. In this paper, I explain why, as a matter of economic policy, it is essential that the legal profession abandon the prohibition on the corporate practice of law in order to remedy the access problem. The prohibitions on the corporate practice of law rule out the use of essential organizational and contracting tools widely used in most industries to control costs, improve quality and reduce errors. This keeps prices for legal assistance high by cutting the industry off from the ordinary economic benefits of scale, data analysis, product and process engineering and diversified sources of capital and innovation. Lawyers operating in law firms have not generated these benefits but they have appeared in countries, such as the U.K., where the corporate practice of law doctrine does not prevail. Eliminating restrictions on the corporate practice of law can significantly improve the access ordinary Americans have to legal help in a law-thick world.
34 citations
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TL;DR: In this article, the authors present an argument and a blueprint for law firm regulation in Canada, focusing on the Law Society of Upper Canada as the regulator of the largest number of lawyers in Canada and the jurisdiction with which I am most familiar.
Abstract: In Canada, the regulatory focus of law societies has always focused on the people who provide legal services rather than on the vehicles through which legal services may be provided. The traditional model of the delivery of legal services then was the sole lawyer in private practice. This model has survived for over two centuries. However, law firms of all sizes are now omnipresent in the Canadian legal profession. While law firms are ever present in the practice of law, they are peripheral in the regulation of lawyers in Canada. At the very least, this discrepancy presents a question that should be addressed: should law firms be regulated? Law Societies should regulate law firms. They should do so primarily on the basis of ensuring public confidence in self-regulation and respect for the Rule of Law and only secondarily out of concerns regarding public protection. The proper question is not why should law firms be regulated but why do they largely escape Law Society regulation? It is widely recognized that law firms have their own culture. It is contested whether this culture strengthens or weakens ethical conduct of the firm’s constituent lawyers. Resolution of this issue is not necessary for the purposes of my argument. Once it is acknowledged that the law firm is an independent actor exerting significant influence on the practice of law, the burden of justifying why it should be regulated necessarily shifts. The absence of law firm regulation creates a problem of legitimacy for Law Societies mandated to regulate the practice of law in the public interest. This regulatory gap also raises Rule of Law concerns and may threaten public confidence if the public believes that the most powerful groups of lawyers escape regulation. Bar leaders in Canada have ratcheted up the expectations of self-regulation through the strength of their rhetoric and their actions against perceived incursions of self-regulation. As a result, lawyers in Canada have set the bar for what self-regulation is supposed to accomplish at a very high level. Consequently, the failure to regulate law firms may threaten self-regulation of the legal profession in Canada. This paper presents an argument and a blueprint for law firm regulation. It has five parts in addition to this introduction. In Part I, I detail why Canadian law societies should regulate law firms. Part II undertakes a “regulatory audit” of how Law Societies in Canada currently regulate law firms. In this section and in this paper I focus on the Law Society of Upper Canada as the regulator of the largest number of lawyers in Canada as well as the jurisdiction with which I am most familiar. Then I turn to comparative experience in Part III by examining how law firms are regulated in three comparable jurisdictions: the United States, Australia and the United Kingdom. Then in Part IV, I present a suggested template for law firm regulation. Finally, Part V provides a brief conclusion.
8 citations