Technology, the Fiduciary Duty, and the Unaffordable Legal Services Problem

• Author: Ken Chasse
• Date: December 06, 2016

The concept of a legal profession should have a strong social welfare aspect to it such that its distant goal is to make a community’s legal health as important to it as its medical health, and its lawyers as important to it as its doctors. Technology can do that. Unfortunately it is becoming a more distant and unattainable goal because our law societies are moving us in the wrong direction.

All efforts are aimed at helping the population learn to live with the problem of unaffordable legal services, but there are none to solve the problem. Law society benchers (elected by their fellow lawyer-members of a law society to be its managers) promote the former but not the latter. Efforts to help the population learn to live with the problem are provided by other people. Benchers merely promote them. Thus the time needed remains in control of each bencher and does not involve a risk of failure attributable to a bencher. Therefore benchers can give priority to being practicing lawyers and to fulfilling the personal reasons for becoming benchers. That leaves law societies’ duties to make legal services adequately available in a very poor second place. That conflict plus a refusal to innovate is the cause of the problem.

A program to solve the problem would involve very detailed hands-on management by benchers. It would require a period of trial-and-error learning, and therefore accepting the risk of failure as the price of learning. That makes the amount of time needed unpredictable. And it creates a risk of being associated with a failure, at least at the beginning of such a project. Therefore, there is no such program.

And there is no public declaration by a law society that states, “this problem is our problem and it is our duty in law to solve this problem.” Thirdly, law societies do not do the obvious—to join together in a national effort to learn how to solve the problem by retaining the necessary expertise to develop a strategy. The problem is the greatest threat and impairment ever, to the availability of legal advice services, and the integrity of Canada’s justice system, and to the continued existence of law societies.

But CanLII (the Canadian Legal Information Institute) and the National Mobility Agreement are impressive accomplishments by Canada’s law societies by way of the Federation of Law Societies of Canada. They prove that our law societies can solve the unaffordable legal services problem.

But, such institutions do not change until the fear of the consequences of not changing is greater than the fear of the consequences of changing. Apparently, our law societies do not yet fear the consequences of not changing, even though they have no answer for the angry taxpayer who demands to know:

“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’ of clinics, public legal education kiosks in shopping malls, help for self-represented litigants, pro bono and targeted legal services, and various forms of self-help. You say you take this ‘access to justice’ problem very seriously. I don’t believe that. If you were serious, you would be trying to solve the problem. You can’t show me anything that you have done about trying to solve the problem. Would you send your close relatives and friends 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 for your justice system?”

The Access to Justice Research Network (the AJRN & CFCJ), and The Action Group on Access to Justice (TAG, an agency of the Law Society of Upper Canada (LSUC in Ontario)) are ignoring that angry taxpayer. There will always be a need for their alternative legal services, but they shouldn’t be the law societies’ reason for not striving for the problem’s solution. They do not provide the fiduciary duty.

What these groups are doing is commendable. But the young lawyers and law students involved will spend the rest of their careers in a seriously economically depressed profession. The population has never needed lawyers more. If...