Moving the A2J Conversation to a New Level

Moving the A2J Conversation to a New Level

I am writing my first blog of 2018 from Sydney, Australia. I love Sydney, and I definitely prefer the weather here in February to the weather in Ontario (sorry guys).

This morning, after some first-thing Skype calls with my wonderful NSRLP team back in Windsor, I dressed in shorts and a T-shirt and picked up some produce at the outdoor farmer’s market, and then went down to the beach for a swim.

OK, so I’m bragging a bit.

Aside from better weather, another intriguing part of being in a different country is that it offers an opportunity for a fresh perspective on things both large and small. Just going to the grocery store is fun in another country (“look what they have here!”) and crossing the road is a whole new challenge (“what direction are the cars coming from?”).

One of my fresh perspectives is what it will take to remedy the sorry state of Access to Justice – in Australia, Canada, the US, the UK, and elsewhere, and in particular, how to move our analysis of the problem to a deeper level.

In order to do this, we have to talk about some issues that make lawyers very nervous. To all my friends in the profession: this is not about “lawyer bashing”. I hope that the record of my work over 30 years is clear – I believe that lawyers make an essential contribution to promoting and protecting justice for many people. Instead, this is about looking frankly at the problems we face, and I think that it’s well past time to do this. As I have often said, the A2J crisis is a systemic problem, and this monster has many heads.

But without changing how we think about expert legal assistance, we are simply not going to be able to come up with long-term solutions.

Looking Beyond Partial Solutions

NSRLP is proud to promote unbundled legal services, legal coaching, and other alternate service delivery models that can make legal help more affordable (the first episode of the new season of our podcast, Jumping Off the Ivory Tower, is my conversation with Forrest Mosten, the venerable “grandfather” of unbundling).

And while these delivery models are big improvements over take-it-or-leave-it full representation with a retainer, they come nowhere close to a complete fix. Nor would more legal aid or pro bono legal services.

The core problem is beautifully expressed by Professor Gillian Hadfield, who pulls no punches in what is, so far, my favourite tweet of 2018.

Hadfield says:

“It’s really time to admit that we have allowed tremendously complex legal processes to develop that exploit the fact that the vast majority of people cannot manage tremendously complex legal processes.”

Does the Legal Profession Exploit the Public?

The key word in Hadfield’s tweet is “exploit”. If legal processes are so complex that people cannot navigate them successfully without lawyers (which for the most part is true), then the public is effectively at the mercy of the legal profession.

The legal profession’s grip is in turn protected by regulatory systems, assiduously defended, that prohibit anyone other than a lawyer from carrying out most legal tasks. The result is a professional monopoly over access to an essential service. And as is the case with so many monopolies, the result has been the protection of self-interest by offering less responsive, and more expensive, services.

Which leaves the matter of cost.

$500 an hour is more than people pay for most other essential services, including most professional services (compare the hourly consulting rates of psychologists, architects, software engineers and most accountants).

What we hear from the public comments to NSRLP over and over again is that $500 an hour is an unreasonable amount to pay for any kind of professional service.

We have to take a hard look at why such a staggering hourly rate – sometimes a lot higher than $500 – is accepted and normalized among members of the profession. Why, in fact, is it a mark of prestige rather than a source of embarrassment? There are some obvious reasons, but the I think that the real source of the problem is deeply entrenched in the structure and culture of the legal profession. Contributing factors include: the high cost of legal education; fetishistic “due diligence” requirements by regulators that cost clients dearly; the billable hour system, which is essential to the business model of law firms (fractionating every task into 6 minute slivers and billing out juniors more than they are paid, enabling partners to make very large salaries); and the overhead regarded as essential to the trappings of law offices (downtown office locations, secretaries, artwork & plush carpets, etc.).

All these factors drive up the end-user costs of legal services, but they also reflect something  deeper: a disconnect between a commitment to providing access to justice in the public interest, and entrenched assumptions about what constitutes professional success.

But Don’t Other Professions Do the Same?

Law is not the only system that has, over time, cultivated a dependence on privileged experts to enable successful access. Other examples include financial systems, the tax code, the real estate industry, and of course, the medical profession. And don’t most major religions require the intercession of a cleric to communicate with God?

Yes but… today there is a flourishing online investment system, while the vendor DIY revolution in real estate began in the 1970s (the precursor of unbundled legal services, as you’ll learn when you listen to Mosten’s podcast episode). In Canada, universal access to public health services protects us from a have and have-not system (thank goodness) that would exploit  the vulnerable. Heck, even institutionalized religion now finds itself challenged by the growing popularity of personal spirituality which eliminates the need for an intermediary with God.

It is fair to say that most professions are facing the same pressure from the public for more equitable power sharing. Many professions are already a lot further along in this evolution than law. And yet law is at the heart of perhaps the biggest challenge to our democratic values – maintaining access to an equitable system of justice.

Relatively unchanged in its regulatory and delivery models, the potential for public exploitation by those who offer legal services is much higher. Because lawyers and insiders in the justice system have a lot of power.

Recognizing our Power

Look back at Hadfield’s statement for a moment.

It’s shocking – and it’s true. It means that those of us who work “inside” the justice system have tremendous power and privilege. How are we going to use it? To protect and justify the present system? Or to advocate for a new one?

In order to kick this discussion up to the next level, we must start talking seriously – politely, respectfully, but directly – about  regulatory reform and legal costs.

We need to talk about how we stop exploiting the public, for whom solo navigation of our ridiculously complex legal processes is overwhelming, help is usually unaffordable, and genuine access to justice remains elusive and often illusory.

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Comments (5)

  • Chris Budgell Reply

    Very nicely put, as always Julie.

    I’m going to address just one point. Though I waged a long battle with the legal system without the aid of a lawyer I certainly tried very hard to secure such aid, at least for the first couple of years. I found talking to lawyers on the phone very awkward. Why, I wondered, were these lawyers reluctant to quote their hourly rates.

    Yes, the billable hour model is fundamentally problematic, but it remains what the legal profession wants.

    So about a year ago I emailed the then president of the Law Society of B.C. and suggested that what every lawyer is currently charging should be posted online – preferably on the LSBC’s website.

    Here’s the reply I received:

    ” Thank you for your suggestion.

    I think lawyers are moving away from hourly rates to charging a client a fee commensurate with the value of the legal services and the ability of the client to pay. Even now many lawyers have different hourly rates depending on the type of file or client.

    I think your basic point that the cost of a lawyer’s services should be more easily discovered is a valid one and I will look for ways to promote that.

    Herman Van Ommen QC ”

    Has he “looked for ways to promote that”? Of course not. He put the issue out of his mind the moment he hit SEND.

    In the grand scheme of things it’s probably a very small matter. But what’s the real reason they won’t do it? Is it true that lawyers have variable hourly rates – depending on . . . what? Do they deliberately discourage prospects they don’t want to take on by quoting rates they know they won’t be able to afford? That was the impression I got in a number of the conversations I had.

    February 8, 2018 at 2:41 pm
  • sandra olson Reply

    pleased to hear you are relaxing. a necessary thing.. perhaps you missed the Vancouver sun news story from jan 30.
    A column written Christopher Hinkson chief justice of the supreme court of BC. Title,, Free press must not undermine justice system. once I got over my indignation at this blatant attempt to silence any criticisms of their actions, I felt angry enough to let the justice know,, that in my opinion, this horse had already left the barn. The process of calling vast numbers of the self represented “vexatious” and levelling huge cost orders against them, is a form of slapp legal action.. And one that is being followed as the appropriate way to rid the courts, of hearing the annoying sounds of the public and their opinions. Our judicial system out here in BC is still more concerned with shutting everyone up, then in addressing access to justice issues. The idea of a democratic access to the courts, and to justice, is still a dead idea out here. And even comments made here, on your site, about how it needs to change, seem invisible.. I will add what I believe would work for a billing system for the legal system.. Lawyers like to compare themselves to doctors,, very well, then we need a single billing system. Just like the medical system. We need independent oversight of the lawyers, AND the judges. No one is above the concept of acting in a JUST AND RESPECTFUL MANNER. The wild antics of the justice system and its players, are worthy of history. and need to come to an abrupt stop. I applaud your attempts at doing what you can to direct this sort of change. take care

    February 8, 2018 at 3:24 pm
  • Dr. Chander P. Grover Reply

    In the context of A2J I am reminded of the speech by Canada’s Governor General (now retired) David Johnston at the 2011 convention of the Canadian Bar Association in Halifax. Mr. Johnston, a former dean of law at the University of Western Ontario, commented: “Canada’s lawyers and judges are losing sight of their commitment to justice and the public good, and the profession must reform itself and rebuild the trust of ordinary citizens.” The complex legal processes mentioned in Professor Gillian Hadfield’s tweet perhaps encompass other inadequacies as well which make our justice system less than perfect. My letter to the editor in the Toronto Star (October 29, 2012) is a comment on the need for reforms in Canada’s justice system.

    February 9, 2018 at 12:18 am
  • Ian O'Body Reply

    To build on the analogy to the idyllic conditions of a beach in Australia: if you look below the surface you will see you are in dangerous shark infested waters. Then again, one is more likely to be bitten on land by one of the world’s deadliest snakes, many of the most poisonous spiders, or a croc. However, most deadly of all is vegemite.

    Points to ponder:

    1. Adam Smith noted members of an industry never get to together without considering ways to conspire against the consumers of their products. Transparency would be key for consumers, but there is no external (to the system) force for change. And there is not going to be one any time soon. Change never comes from inside a system. A system though always moves to entropy.

    2. In the information age, knowledge is good and bad. People become informed, and appreciate how they’ve been – and continue to be – taken advantage of. But, this knowledge only causes angst, as the information does not bestow power to overcome a system which renews itself at the slightest hint of any challenge to the ordering of things. Either play ball or don’t play at all.

    3. The more the system can charge for access, the less the work that needs to be done. The less you need to work, the more you can afford to charge. It’s a thing of beauty. If you, as principal, can bill out hundreds of dollars for a paralegal or law clerk who earns perhaps one-third of that, do you need to work at all? You can demand $500 for your time as principal if you employ a couple of these working for you.

    Moving from the abstract: the accountant designations were originally (not so long ago) stratified into CA’s, CMA’s, and CGA’s. The CA’s (the highest paid as a whole) gained majority control of the board that approved the process of becoming an accountant. The CGA’s complained (in court) that they were being pushed out by the underhanded acts of the board’s majority – and they were right. Now, there is only one professional accounting designation. What perchance happened to the price of an accountant?

    Similarly, the LSUC has taken control of the paralegals, and already had control of the law clerks. Take an educated guess as to the next step.

    The accountants had their pocket protectors, the engineers their rings, and the doctors their white coats. All of these accoutrements fell by the wayside. Yet, the legal profession still has its gowns; a figurative secret handshake for those of the system. The clothes do make the women and men, a cut above the rabble. Justice – a concept so basic and primeval chimpanzees were found to understand it – will continue to be doled out upon lesser beings by a collective of superiors demanding in concert all that society will bear.

    Will they meet in the gowning chamber to work out the details? It would seem appropriate.

    February 13, 2018 at 9:19 pm
  • Andrew McGinn Reply

    I successfully plowed through the system on two occasions with an occasional consult from a lawyer who willingly offered an hourly service. I think the hourly structure itself is not the big issue, but that the rate is not commensurate with the service. A lot of legal work is routine administrative action and should be billed at about $80 per hour. Other consulting actions which involve the legal expertise at around the same rate as any other skilled trade $120 per hour maybe. For those rare instances where specialized legal services are required, the rate can go as high as someone is willing to pay.

    My one concern as an SRL is that not all SRLs are equal. Those engaging on this forum are typically much better equipped intellectually and perhaps emotionally to stick handle much of their own administrative and case management. Many of those whom I witnessed in the system could barely function in English, struggled to understand basic legal concepts, were overwhelmed by the administrative burden that is unlike anything else they have experienced. I would opine and say, most people are not equipped to self represent and should not do so, making the legal profession a necessity. SRLs are a problem, and not just because the system does not want them, but because they area consequence of a system that is inherently incomprehensible to all but a few.

    This touches on the other point Julie has made, that the monopolistic system is a significant part of the problem. It is a self supporting club. The availability of paralegal options, including something as simple as having a trusted friend able to advocate or participate meaningfully forces an unreasonable equivocation: self represent or lawyer up. And for someone making Canada’s average wage of around $35K, the second option is pretty much off the table if once more that two or three hours are used. It may be cheaper to plead guilty and go to jail or get an imbalanced decision then pay for the advocacy one needs.

    February 15, 2018 at 7:24 am

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