Echoing a query that we hear often about the practical impact of the various meetings, task forces and other efforts to draw together stakeholders to talk about A2J barriers and innovations, Margaret Hagan asked this question in a survey on her site posted from November to December 2014. The results are visually summarised here:
http://www.openlawlab.com/2015/01/19/whats-going-wrong-access-justice-movement/
We were struck by how much these results – citing “challenges mis-framed”, “chill from regulation” (“big system changes are constrained by rules and norms that seem unalterable”), “lack of scaling” (many small scale projects, and a failure to spread ideas and innovations that work) “not user-centred”, “movement is disengaged” (“the public is not being involved in conversations about A2J”) – accord with what we hear in discussions on the NSRLP Blog https://representingyourselfcanada.com/category/blog/ among both SRLs and other system stakeholders who are becoming impatient for change.
This is not just idle criticism. All reasonable people recognize that the complexity of the A2J challenge – and the cultural resistance to change within the legal system – means that this is a long-term project – Rome was not built in a day. But there are solutions to some of these critiques.
See for example our New Year blog calling for more public engagement https://representingyourselfcanada.com/2015/01/08/new-year-wishes-5-excuses-for-not-involving-the-public-in-a2j-reform-to-leave-behind-in-2014/ . We could also do a better job of building out from innovatory projects – in courts, law schools, Legal Aid Plans – that are showing good results, allowing for local modifications and making a virtue out of the leadership efforts of small projects all over the country. For our part, at NSRLP we shall continue to try to keep you informed of the “best of the best”.
The “unaffordable legal services problem” (“the problem”) exists because Canada’s law societies have not tried to solve it, and they aren’t under adequate pressure to solve it. Law society benchers earn a good living from the justice system, which taxpayers provide them. But they do not give taxpayers affordable legal services. Instead they are allowing several programs that provide less competent substitutes for lawyers’ services, to become the permanent answer to the problem. There is no law society publication that says the problem is the law society’s problem and the law society’s duty in law to solve it. There is no law society program whose purpose is to solve the problem. Instead of treating the problem as a human-caused problem capable of a human-caused solution, they are treating it like the weather, i.e., something that cannot be solved or prevented. That is being neither competent nor honest.
People have never needed lawyers more. If legal services were affordable, lawyers would have more work than they could handle. The legal profession would be expanding. Instead, it is a victim of law society intentional incompetence. Canada’s population and its courts are also victims.
The 19th century management structures of Canada’s law societies by part-time amateurs (benchers) contain these conflicts of interest that require law societies either be re-structured or replaced: (1) the conflict between law society regulatory and representative functions; (2) the conflict between duties to clients, and duties to law society work, which time is mostly charity; a sideline; (3) the conflict between the interests of big law firms and those of smaller law firms. They are amateurs becomes they don’t have the skills, nor try to get the skills to solve problems like the problem of unaffordable legal services.
Benchers are not personally suffering from the problem, and within the next 5 to 10 years, they will all be happily and comfortably retired. They use their positions to fulfill their personal reasons for being benchers, but do not fulfill their duties to the public. They won’t try to make legal services adequately available to the public, therefore they have no purpose. Abolish them. Otherwise, lawyers can blame themselves for tolerating their own very poor economic future. And taxpayers are not getting what they are paying for. It doesn’t have to be that way. On these points, see my “access to justice” articles on the SSRN (.pdf download free) at: http://ssrn.com/author=1398484 .
— Ken Chasse, member, LSUC & LSBC.