Should lawyers have a monopoly over the provision of legal services?
Is there a good reason to allow non-lawyers to provide legal services?
Lawyers’ education and training is superior. Admission standards are high. We are bound by codes of conduct and must be insured. Lawyers who breach professional duties may be disciplined. Why should anyone with lesser qualifications be inflicted on the public?
The short answer is that lawyers do not and cannot fill the public’s need for legal services. According to the 2009 Ontario Civil Legal Needs Project, lawyers provide advice and representation for only 11.7 per cent of what the study called “justiciable events:” issues relating to consumers, employment, debt, social assistance, housing, disability pension, discrimination, family law, and hospital treatment issues, among many others.
As Ontario bencher Malcolm Mercer has pointed out, lawyers don’t necessarily perceive the extent to which the public’s legal needs are unmet. We tend to see the access to justice problem strictly from our own professional perspective. And as Professor Gillian Hadfield has noted, the problem is aggravated by the fact that the employer, the bank, or the business on the other side the legal issue, does have access to expert legal advice.
The alternative to ignoring the 88 per cent of the public’s needs that go unmet is to allow qualified non-lawyers to fill much of that huge gap.
“It makes no sense to prohibit anyone but a member of the Law Society from doing work that members of the Law Society don’t do,” Mercer says.
Since 2007, Ontario has allowed paralegals to address a portion of those needs. The fees they charge are modest compared to lawyers. They are required to be educated in their field, and to be licensed – for which they are required to write an examination. They must be insured and comply with rules of professional conduct, or face disciplinary measures. They are required to be of good character.
The services paralegals may provide are limited. They can appear in traffic court, before provincial tribunals, and in Small Claims Court. They cannot draft separation agreements, or appear in Superior Court.
Having said that, we would do well to observe the experience of Limited License Legal Technicians in the State of Washington, who can now assist people with family law matters. Professor Julie Macfarlane’s research has shown that 70 per cent of family law litigants in Canada are unrepresented, and family law is not within paralegals’ scope of practice.
In 2012, five years after allowing regulated paralegals to provide certain legal services, the Law Society of Upper Canada commissioned an independent review of the new regime. The overwhelming majority of clients of independent paralegals reported that they had received satisfactory legal services.
In a 1998 study undertaken of lawyer and non-lawyer representation, Professor Herbert Kritzer concluded that “the presence or absence of formal legal training is less important than substantial experience with the setting.” Other studies have come to similar conclusions: “Specialization is more important than legal qualifications in determining the quality of advocacy.”
As we noted in a previous column, the legal professions in Great Britain lost the right of self-regulation for a number of reasons. But one of the main reasons for the loss of independence – which we rightly value so highly – was that their regulatory bodies were perceived to be anti-competitive. They acted like monopolists.
The principal ethical imperative engaged by lawyers’ monopoly is our duty as a profession to provide access to justice. To oppose the provision of legal services by non-lawyers with lower fees impedes members of the public seeking access to justice, and harms the reputation of our profession. We have to look at the public interest first and the parochial interests
of lawyers second.
Legal services are unavailable to the majority of the population at a reasonable cost. That has been a problem for many years and it has gotten worse. Non-lawyers have a role to play in assisting people with their legal problems – and lawyers today must recognize that.
Gavin MacKenzie and Brooke MacKenzie practise together in Toronto as MacKenzie Barristers, with a focus on civil appeals and professional responsibility issues. You can find them at www.mackenziebarristers.com.