The Law Society’s role regarding public access to legal services

A recurring access to justice discussion has concerned the role of law societies in meeting the legal needs of the public. The Winter 2016 CBA National Magazine contains an article (“Should lawyers have a monopoly over the provision of legal services?”) arguing that lawyers are not meeting the public’s need for legal services, and that lawyers in England lost the right of independent self-regulation in part because their regulating bodies acted as anti-competitive monopolists. The authors, both lawyers, write, “The principal ethical imperative engaged by lawyers’ monopoly is our duty as a profession to provide access to justice.”

In British Columbia, Ian Mulgrew has penned an article (“BC law society sidelines paralegal access-to-justice initiative”) criticizing the Law Society of British Columbia for its approach to regulating legal services, opining that “the worsening access-to-justice crisis is due in part to the monopoly lawyers have on providing legal services” and calling on the monopoly to end.

The Law Society of British Columbia describes its function on its website (“About Us”) as, among other things, ensuring the public is well served by legal professionals and bringing a voice to issues affecting the justice system and delivery of legal services. The society has expressed concern about the inability of the average person to access lawyers’ services and has incorporated that concern into its strategic plan. One task under this rubric has been to support lawyers in offering unbundled legal services, a topic I discussed in a previous blog post. Other access-related activities include the society’s longstanding support for lawyers’ pro bono services; the work of its current Legal Aid Task Force; significant funding for access initiatives (including Access to Justice BC); ongoing participation in public education and awareness resources and events; and reporting and investigating alternative legal services delivery options.

The law society’s leadership on these issues is encouraging, including its examination of ways to expand legal service regulation to include new classes of people, not just lawyers. Although one of the projects — which allowed paralegals to make court appearances —has concluded, a recent report indicates that the law society continues to consider the issue.

Access to Justice BC exists to support and align initiatives intended to bring positive change to our legal system. It is a network of justice system stakeholders with the aim of encouraging collaborative, user-centred action and indeed a culture shift in the justice system.

This recent dialogue about the law society’s role in our legal system helps provide different perspectives on the regulation of legal services and sheds some light on the issues. As more is understood about the public’s unmet legal needs — including the unsettling statistics —I encourage lawyers, paralegals and the public to continue the dialogue and to let Access to Justice BC know how it can best support improvements to our justice system.

2 thoughts on “The Law Society’s role regarding public access to legal services

  1. Such talk as to giving away law societies’ monopoly over the provision of legal services to other, less qualified sources is unnecessary, and is a surrender of law society statutory duty to an unacceptable strategy of “cutting costs by cutting competence.” The unaffordable legal services problem is a law society-caused problem, capable of a law society- caused solution. Law society creations such as, CanLII and the Mobility Agreement prove that.
    The necessary solution exists everywhere around the legal profession in the production of goods and services. An excellent example is the medical profession. Consider, 200 years ago, a doctor and a lawyer had a very similar work situation. They had only their own personal resources and maybe an assistant or two. But now, no doctor’s office provides all treatments and all remedies for all patients the way a lawyer’s office does for all clients. The difference has been caused by the use of a support services method of producing medical services. But the legal profession still uses a handcraftsman’s-cottage industry method of production. Law firms are highly silo-ed production units, using only their own internal resources. Legal services are produced in the same way that they have always been produced. Therefore the necessary maintaining of cost-efficiency by innovation, that maintains affordability is not possible. There is no reliance upon external, high specialized support services, such as that provided by the “parts industry” of many “special parts companies,” to the automobile manufacturers. In such industries, and in the medical professions, innovation in the methods of production never stops. In the legal profession it never started. That is because the necessary sponsoring agency of innovation, the law society, still uses a 19th century management structure and concept of what a law society bencher should be and do. That is because there has not been the necessary pressure upon law societies that forces innovation in, management structure, purpose, and concept.
    The current emergency in the production of legal services that is causing great damage and massive misery to millions of people’s lives should be creating that innovation. Instead, because they don’t try to solve the problem, law society benchers are guilty of the crime in s. 122 of the Criminal Code: “breach of trust by a public officer.” (See the definition of “public officer” in, R. v. Boulanger 2006 SCC 32.)
    And see: Ken Chasse, : “Access to Justice: Unaffordable Legal Services’ Concepts and Solutions” (posted on the SSRN),
    at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2811627 (open access pdf. download. At the top or bottom of the abstract summary, click on the words, “Download this Paper”).
    — Ken Chasse (“Chase”), J.D., LL.M.; member, LSUC (since 1966); and, LSBC (since 1978).

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  2. Access to lawyers and access to justice are two completely distinct notions. Which one is A2J BC actually trying to solve?

    Having paid lawyer fees in the $400 per hour range, I have no objection to lawyers dropping their fees. But even if lawyers’ fees drop to zero, and even if at the same time the supply of lawyers increases to infinity, there will be no improvement in access to justice. Access to justice, once you get to court, depends on the quality of the law itself. If the law is not just, then getting to court with or without a lawyer is not going to deliver access to justice.

    And the law is not just. For many decades, and most notably since the inception of the Charter, judges have been in the business of shaping the law so that it serves the legal industry and creates legal jobs, not so that it delivers justice. While many governments have valiantly tried to make rational law through legislation that sustains fundamental rights and freedoms, the quality of judge-made law has gone in the opposite direction, handing out power in lieu of freedom at every opportunity. Nowhere is that more evident than in labour law, which ceased to involve worker self-determination long ago.

    This may be the toxic legacy of dialogue theory, or it may be a simple expression of the human frailties of judges, who are as prone to empire-build as the best of us.

    Canada’s chief justice Beverley McLachlin gave a speech to the Canadian Bar Association in August of 2000 urging lawyers to curb their fees. Yes, you read the year right. She seems to have given that speech many times since, and judges continue to give it, with others chiming in because it is such a seductively easy idea. But these calls for reducing fees have had no effect, and will have no effect, because judges can affect legal fees only by what they do, not by what they say. And what judges have done while calling for reduced legal fees is to continuously create opportunities in law for ever more complex and expensive legal proceedings. They have shaped their law to accommodate those who can litigate, without taking any account of those who cannot litigate even when those people’s legal interests are in play in matters before them. Ordinary people have become invisible to the law, and that is why the courts are not delivering access to justice.

    Under this reality, legal fees will not drop – rather, they will continue to rise.

    How could the law have gone so badly off the rails? It is my belief that the Supreme Court of Canada should never have been given jurisdiction over the Charter. Being given the power to both interpret the Charter and refine the law within its parameters has irredeemably corrupted both mandates. Charter law in particular never fit with the two-party adversarial system because all Charter cases by definition incorporate the legal interests of multiple parties on an equal footing. That is how governments have to govern in response to Charter law, and it is because the courts have had the luxury of looking at disputes just two parties at a time that the vast majority of Charter law has sabotaged rather than enabled responsible governance. That is why dialogue theory has consisted of judiciary and government talking past each other for 35 years.

    There is a way to navigate out of this legal utopia that lawyers and judges currently enjoy, but it will require critical evaluation by judges of judge-made law, and that has to be done outside of the appeal process because that process itself and its outcomes must also come under scrutiny. It is judges, not lawyers, who have built barriers to justice, and only judges, not lawyers, can take them down to create better access. Judges will need multiple inputs, resources, and forms of expertise, but the bottom line is that they must be both the agents and targets of change.

    What if they don’t? What if judges simply continue to hope that a multi-disciplinary or public “dialogue” will somehow miraculously resolve the self-serving nature of the business of law-making? The answer is already evident in current events: the power in the legal system will shift from where it should be – with judges – to where it should not be – with people who find a variety of ways to control judges so that their own fiefdoms are served.

    If the legitimate leadership of a system does not exercise control when it is needed, an illegitimate source of leadership emerges to fill the vacuum. And as we speak, legal academe is already well entrenched as a shadow form of judiciary. In case it was not readily apparent, the recent removal from the bench of Justice Robin Camp was executed by legal “scholars” making an end run around the courts of law by leveraging their credentials to take down Justice Camp in the court of public opinion, which in turn effortlessly controlled the CJC. The fact that the retrial upheld Justice Camp’s original decision was barely noted in public, and was completely irrelevant to justice for Justice Camp in the long run.

    I have written more about Justice Camp and about legal academe on my blog, The Court Jester, at http://ctjester.blogspot.ca/. But much as I have written there and much as other parties have written everywhere else, the key to delivering on the access to justice file is really very short: The law is the problem. Judges are the solution. If judges do not deliver, then the quest for justice will move to the court of public opinion, where others are far more skilled than judges at engineering their preferred outcomes – relative to which “access to justice” will always be an afterthought.

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