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“It’s the economy, stupid”

[This blog post was previously published on The Access Revolution, a collaborative blog hosted by Dr. Julie Macfarlane and the National Self-Represented Litigants Project.]

Sorry for the pejorative. It’s me quoting Professor Gillian Hadfield quoting James Carville, who famously advised Bill Clinton to focus on the economy during his 1992 presidential campaign.

Gillian Hadfield is a law professor with a deep background in economics. She is world-renowned.

Professor Hadfield repeated this quote after noting that the demand for legal work is “exploding” (Professor Hadfield’s word) but the demand for what law firms are actually offering is flat or shrinking. And it is all because of the cost of legal services delivered by the traditional service model. At $300 an hour (Professor Hadfield’s arguably conservative number) for legal assistance, ordinary people simply cannot afford to get help.

In her economic analysis, Professor Hadfield notes that the legal profession in North America is locked into a business model that does not innovate to increase value and reduce costs. Why can’t we change the model? Professor Hadfield lays the blame on the legal profession’s traditions of regulation. In Canada, she says, we “throttle innovation” in the profession. Rules by regulators prohibiting the corporate practice of law (and “practice of law” is defined in exceedingly broad terms), fee splitting and other regulations create, in the Professor’s view, a closed system, a homogeneous idea pool, limited consumer feedback, and limited access to (human and financial) capital.

Put simply: we need lawyers, but at $300 an hour, we cannot afford them. We need to bring the cost down but, in Professor Hadfield’s view, the profession’s regulatory regime prevents the creation of innovative business models—such as a multi-disciplinary approach where some legal services are delivered by professionals other than lawyers—that could achieve that. The hourly rate conundrum makes it impossible to meaningfully address the access to justice crisis.

Reformers respond, in one example, by encouraging the delivery of “unbundled” legal services—letting the consumer purchase discrete, or “a la carte”, services at various points on their journey through the system as otherwise self-represented litigants.

I’m supportive of unbundling. The unbundled legal services model is innovative, and it has the potential to increase access to justice. But, it’s really only tinkering with the current legal services delivery model. It is not a robust response to the fact that our system promises citizens the “Rule of Law”, but delivers, at best, only part of that promise.

Professor Hatfield recently spoke to a large audience in Vancouver. I spoke by way of introducing some context for her remarks; I said that true social innovation requires a collaborative effort across the system by all players, always keeping the user at the centre of our efforts.

I also said that we need to collaborate not just with our usual partners and allies—we need the critics, the innovators, the disrupters in our society, in the “tent” with us—provoking us, challenging us, perhaps worrying us, with new ideas and approaches to resolving our access to justice problems.

Ultimately, it is Professor Hadfield’s view that we need to build an independent regulator of legal service providers. In her words, we need risk-adjusted, outcome-based regulation, rather than to dictate business structures and practices. Put another way, instead of sticking with the traditional model where lawyers dominate the delivery of legal services, we need to look at new regulation models that allow for affordable service delivery that is appropriate and proportionate to the person’s legal problem.

Professor Hadfield’s thesis is a disruptive one – to some, a radical one. I take no position on whether her thesis is correct or not. However, if dramatic change is in fact one of the answers to ensuring ordinary people can access legal services, I want to encourage lawyers (and the judiciary, within our usual constraints relating to the protection of judicial independence and impartiality) to lead the way. By leading, the legal profession can confront the problem, while preserving the value derived from the independence of the bar.

Access to Justice BC has identified the need to shift our system’s culture to being user-centred, to making evidence-based decisions, and to challenging entrenched thinking and habits with innovation and experimentation. Professor Hadfield’s thesis is indeed a disruptive one, but it does exemplify some of these vitally needed culture shifts.

We, as a sector, need to grapple with the system’s critics, and with the fact that change will come, whether we choose to lead it or follow it. I have faith that the core principles and values underlying our system of justice—fairness, transparency, accountability and the rule of law—will guide us in meeting the challenges of disruption and change, in whatever form they may take.

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