The More That Law Society Committees Change, the More Things Stay the Same

As an exception to the universally accepted view that law society committees are “all form and no substance” in regard to the “unaffordable legal services problem” (“the problem”), there is one Law Society of Upper Canada (LSUC) committee that has produced a Discussion Paper that has great substance, although some ingrates are so inconsiderate as to say that it’s not “the right stuff”; see: Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper. It was released by LSUC on September 24th, asking for comments by December 31st.[i] It proposes “alternative business structures” (ABS’s). They have three parts: (1) law firms can be invested in (owned—up to 49% or 100%) by non-lawyer people and entities; (2) legal services be enabled to be provided with related non-legal services; and, (3) routine legal services be automated by software applications. The theme of these ABS proposals is that in order to have (2) and (3), the legal profession must accept (1). It’s innocent fun because we all know that, that “ain’t necessarily so.”[ii]

Firstly, as I explained in an earlier post,[iii] with good leadership from Canada’s law societies working together, the legal profession itself can bring to the practice of law all the automating of routine legal services with software applications necessary, without having to surrender its professional integrity to investors providing ABS’s. Secondly, this ABS proposal does nothing to improve the affordability of legal advice services, because they cannot be automated.

In compensation, this Discussion Paper very cleverly sets a scene of urgency and tragic drama by citing the high percentages of people needing legal advice services, some of whom are going to court without lawyers, even though its ABS proposal can’t do anything to help them. Court cases need legal advice services from lawyers, because there are no “routine legal services judges” whose work can be automated. These quoted percentage figures state (at p. 13):[iv]

(1) “In Canada and elsewhere, in family law, most litigants do not use lawyers – recent studies show 70% are unrepresented”;

(2) a 2009 federal government text states that, “legal advice is sought for less than 15% of justiciable problems in Canada”;

(3) the same study states that, “42.2% of respondents who experienced a personal injury problem consulted an unregulated source of assistance” (i.e., a non-lawyer);

(4) “In 2009, the Ontario Civil Legal Needs Project found that one-third of low- and middle-income Ontarians did not seek legal assistance for what they regarded as legal problems”; and,

(5) “A recent study of 259 self-represented litigants in family and civil law matters in Ontario, British Columbia and Alberta reported that the most consistently cited reason for self-representation was the inability to afford to retain, or continue to retain, a lawyer.”

Now this irrelevant dramatizing is all in good fun, so don’t go thinking that LSUC’s Treasurer, who has put her name to the Discussion Paper by way of an opening letter urging participation in the discussions, has spun back the odometer on us like an old-time used car salesman (a now reformed “salesperson”), telling us that a used car with wings is just as good as a late model airplane. But earlier law society publications, not needing any such “urgency scenarios” with which to sell their wares with straight-faced exaggeration or excessive minimization, don’t mention such “self-represented litigant” figures at all.

For example the Federation of Law Societies’ (FLSC’s) text, Inventory of Access to Legal Services Initiatives of the Law Societies of Canada of 2012,[v] defines the problem in its opening paragraph as being merely, “gaps in access to legal services.” Such figures would be inconsistent with such a definition. Then it summarizes all of the programs, now operative, of all of the law societies in Canada, all of which collectively couldn’t make a “dent” in the size of “the problem.”[vi] But perhaps filling gaps with dents is not its purpose.

Even funnier was the previous LSUC Treasurer’s published letter of February 7, 2014, to Ontario’s Minister of Finance, urging better funding for Legal Aid Ontario. However, the law societies’ monopoly over the provision of legal services means that legal services have to be made available to everyone who is subject to that monopoly, which is everybody. But because the unaffordable legal services problem now means that the majority of Canada’s taxpayers must deal with their legal problems without lawyers to help them, it’s now politically very ill-advised for any government to take more of their tax money to provide more free legal services to poor people, even though it’s the law societies’ decades-long inaction that has caused the problem. So that letter is very funny because it’s like a bank robber asking that the banks be funded better.[vii] Other such statements have been made,[viii] and the Canadian Bar Association has also done so.[ix] So they too see the humour in the Treasurer’s letter.

But the approach to the problem is becoming more serious, albeit only structurally, but possibly with a note of concern as to what such structures are supposed to do. The, Report of the Treasurer’s Advisory Group on Access to Justice Working Group of the Law Society of Upper Canada, January 23, 2014, presents no such precise figures, nor programs with which to cope with the problem, nor does it identify the cause of the problem, nor give it a clearly stated definition as to its true nature and extent of damage, actual or potential. It merely cites the types of recommendations offered by other reports, none of which alone or collectively is capable of solving the problem.[x] But it does present a motion to LSUC’s governing body, “Convocation,” urging the creation of committees within committees, in this way:

(1) merger of the Access to Justice Committee and the Equity and Aboriginal Issues Committee to become the Access, Equity and Aboriginal Issues Committee;

(2) appointment of members of the Access, Equity and Aboriginal Issues Committee to serve as one of the vice chairs of each of the Professional Development and Competence, Professional Regulation and Paralegal Standing Committees; and,

(3) the creation of a new Access to Justice Coordinating Committee.

But don’t you go thinking that it’s a, “make more committees within committees, hand-is-quicker-than-the-eye shell game,”[xi] because justifying all of this re-structuring is the following recommendation (to which I have added embolding to facilitate any further dressing, or re-dressing of law society windows that might ever be needed):

“That Convocation approve the creation of a framework to facilitate the reinforcement and integration of access to justice objectives into the core business, functions and operational planning of the Law Society, the key components of which are as follows, and as further described in this report:

(a) an internal focus on access to justice as a strategic objective underpinning all of the Law Society’s work, which will include: (i) designating appropriate resources to enhance the Law Society’s approach to developing access to justice objectives integrated across program areas; (ii) strategically reviewing, reconsidering and, where appropriate, amending the Law Society’s rules, regulations, policies and practices to foster change and innovation and achieve the Law Society’s access to justice objectives; and (iii) developing metrics to measure the effectiveness of actions taken; and.

(b) An external focus through which the Law Society will provide facilitation of a standing forum for collaboration on access to justice by: (i) Reconstituting the Treasurer’s Advisory Group on Access to Justice as a standing forum called the Treasurer’s Action Group on Access to Justice; and (i) Providing administrative and other resources necessary to convene and support the ongoing functioning of the standing forum.”

But note that in spite of all of that much-needed extantly essential, presidential, and existential verbiage, for the first time in the long history of “the problem,” we have a law society committee that expresses the right attitude (would you believe, “sincere fear,” at pages 4-5 of the Report itself, being pages 235-236 of the Report to Convocation, January 23, 2014), in paragraphs 6 and 9:

6. This report from the Treasurer’ Advisory Group on Access to Justice (TAG) Working Group proposes a framework for change which would see the Law Society lead and innovate on these important issues, rather than have change imposed upon it.

. . .

9. Despite significant individual and organizational efforts, including those of the Law Societies, the “crisis” only seems to be growing, highlighted perhaps most starkly by the numbers of self-represented litigants appearing in courts across the country. As a result, the attention being focussed on the need to address the obvious and growing imperative to provide more effective and meaningful access to justice in the last few years has been unprecedented.

So therefore, don’t go thinking that any three reports, like those above, and law society presidents’ and treasurers’ letters, mean: (1) that the law societies pick their facts to suit their published conclusions; and, (2) although they may be good at re-structuring, they are not so good at putting anything like a substantive innovation aimed at a solution, into their re-structured structures and committee working groups and sub-committees thereof.

In such wise organizations, the successful strategy says, “if it’s not broken, don’t fix it,” because “it” is never “broken” until there is sufficient political pressure to say that it is broken, which pressure never happens because, “there are no votes in justice.” So the more the committees change, the more things stay the same, as does the unaffordable legal services problem, except that the percentages of self-represented litigants are getting larger, as is the majority that cannot afford legal services.

So here’s the formula for the above very successful dynamic stasis:

1. Nobody involved is being personally hurt by “the problem,” financially or otherwise;
2. There isn’t enough effective pressure to do otherwise than what is being done;
3. All the people the Benchers are in contact with want to feel involved; so,
4. Committees within committees, and various groups—action, working, advisory, and other varieties of the same and other species thereof, and motivations and intentions as to, strategies, initiatives, themes, forums, approaches, and facilities, are created.

So the result is more heat than light, and more unproductive action than can justify the heat. It’s like a very busy traffic circle whereat nobody wants to get off. That is to say, everybody “gets off” on such circles by not getting off. This formula has the appearance of an institutional culture that has proven to be successful all down through the generations since LSUC’s creation, on July 17, 1797, in the beautiful little tourist town of Niagara-on-the-Lake (pop. 15,000), shortly before moving to “muddy York” (Toronto), and then in 1832 into Osgoode Hall on the northeast corner of Queen St. West and University Ave. It has been continuously saved from becoming a beautiful museum by successive Convocations looking fondly and addictively backward with ever-fixéd gaze to the day of LSUC’s creation. All of which also explains why the Law Society in Ontario still uses its British colonial name. But will that half of Toronto’s residents who were not born in Canada,[xii] understand that “Upper Canada” does not mean that LSUC is a law society for lawyers whose offices are up there in Canada’s Territories, above the 60th parallel of north latitude?

LSUC’s Benchers might answer these words with a disdainfully annoyed, “we are not amused,” using the fine words of Her Majesty’s 19th century British Empire.[xiii] But more regretfully not amused should be the lawyers in the middle-sized and smaller law offices, which offices are forecasted to disappear over the next ten years.[xiv] And even more so should be that majority of the population that cannot afford legal services.
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[i] See this statement on LSUC’s website: “The Law Society released Alternative Business Structures and the Legal Profession in Ontario: A Discussion Paper on September 24, 2014, to seek input from lawyers, paralegals, stakeholders and the public about Alternative Business Structures (ABS).” Comments and requests to attend meetings may be sent to, abs.discussion@lsuc.on.ca, by December 31, 2014.

[ii] “It Ain’t Necessarily So” is a popular song with music by George Gershwin and lyrics by Ira Gershwin. The song comes from the Gershwins’ opera Porgy and Bess (1935) where it is sung by the character Sportin’ Life, a drug dealer, who expresses his doubt about several statements in the Bible.

[iii] Legal Advice Services Cannot Be Automated by Alternated by Alternative Business Structures (Slaw, Oct. 9, 2014. And also posted on the, Access to Justice in Canada blog on October 7, 2014

[iv] Because blog articles have to be short, terse, and not take up space to be humorous or otherwise unlawyer-like, I have omitted the footnotes provided with these quoted figures.

[v] This FLSC text can be accessed online: <http://www.flsc.ca/en/access-to-legal-services/>. Click on the highlighted word “inventory,” in the last line at this site, which states: “The Federation’s Standing Committee on Access to Legal Services has produced an inventory of access to legal services initiatives of Canada’s law societies.”

[vi] See: Ken Chasse, “Access to Justice: A Critique of the Federation of Law Societies of Canada’s ‘Inventory of Access to Legal Services Initiatives of the Law Societies of Canada’.”

[vii] That is to say, law societies asking that more money be taken from taxpayers so that those law societies would have fewer poor people to worry about providing legal services for, while making it more difficult for governments to take more money from taxpayers whom law societies had failed to provide affordable legal services for. In fact, in response to the Treasurer’s letter of Feb. 7^th, I sent an email message to the Ontario Minister of Finance using that same, “ungrateful bank robber” analogy. However, in spite my advice, the Minister did announce a small increase in funding for Ontario Legal Aid, and so LAO has announced new financial eligibility guidelines.

[viii] See for example the press release of February 5, 2007, with the heading, “LAW SOCIETY VOICES SUPPORT FOR SUSTAINABLE LEGAL AID.” Its first paragraph states: “The Treasurer of the Law Society of Upper Canada, Gavin MacKenzie, today expressed the Law Society’s continuing concern over the need for a well-funded and sustainable system of legal aid in Ontario.”

[ix] See the CBA’s, Equal Justice, Balancing the Scales, November 2013, at page 53, “Return on Investment for Legal Aid Spending”; and its Special Committee Report, Crystal Clear, Strategic Directions for the CBA, August 2006, at pages 28 and 52.

[x] None of the recommendations shows a recognition of the need to change the method of delivering legal services to a “support services method.” Instead, all are aimed at improving the existing “handcraftsman’s method,” which cannot be made to perform with the same cost-efficiency, and degree of specialization and scaled volume of production as can a support service—just as a bicycle cannot be made to perform like a motor vehicle. LAO LAW at Legal Aid Ontario is such a support service, providing legal opinions for lawyers who service legal aid cases. See: Ken Chasse, Access to Justice-Canada’s Unaffordable Legal Services-CanLII as the Necessary Support Service; and a much shorter Slaw blog version, CanLII as the Solution to the Unaffordable Legal Services Problem, Oct. 24, 2013.

[xi] For those readers too young to have experienced the slang and entertainments of us pre-Boomers, a “shell game” is: “1. A swindling game in which a small object is concealed under a walnut shell or the like; the manipulator then moves the shells around at speed; bets are made on the shell under which the object is found. 2. a generic for any form of confidence trick”, quoting, Cassell’s Dictionary of Slang 2nd ed., by Jonathon Green (London: Weidenfeld & Nicolson, 2005).

[xii] See “Toronto Demographics,” click on, “Immigration, Citizenship, Place of Birth, Ethnicity, Visible Minorities, Religion and Aboriginal Peoples (PDF)”. According to a 2011 National Household Survey, Toronto’s diversity is greater than that of Canada overall, and, “49% of those living in Toronto were immigrants,” and, “33% of immigrants living in Toronto arrived between 2001 and 2011.” Online: http://goo.gl/HKiVk7.

[xiii] This quotation is attributed to Queen Victoria, with varying stories as to the circumstances.

[xiv] See the Canadian Bar Association’s report, The Future of Legal Services in Canada: Trends and Issues , June 12, 2013, at p. 31; online: < http://www.cbafutures.org/trends >. And see also Jordan Furlong’s, The agile lawyer will rise as permanent, full-time, salaried employment vanishes.”

If the middle-sized law office disappears, smaller offices will likely go first, being more economically vulnerable. But it is in middle-sized and smaller law offices that approximately 70% of Canada’s lawyers work. The rich will have lawyers as will those poor people who qualify for legal aid assistance. But the great majority in the middle cannot afford lawyers. That’s “two-tier justice,” which should be declared unconstitutional, and require government intervention to make the rule of law adequately and equally available. See: Ken Chasse, The Failure of Law Societies to Accept Their Duty in Law to Solve the Unaffordable Legal Services Problem.” Also published on the Access to Justice in Canada blog: Part 1, August 12, 2014; and Part 2, August 14, 2014; and pp. 1-3 excerpted on the Slaw blog, Sept. 11, 2014: “Thursday Thinkpiece: Chasse on Law Societies and Unaffordable Legal Services.”