Should lawyers have a monopoly over the provision of legal services?

By Gavin & Brooke MacKenzie Winter 2016

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.

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Comments
Anonymous 12/8/2016 2:46:38 PM

Thank you for writing this daring article. Yes, there is no way around it - lawyers have held a statutorily-granted monopoly on the provision of legal services.

Two clarifications, however - It is an oft-repeated myth that lawyers in Canada are "self-regulated" - they are not. A private chess club, or golf club, or sports team or tournament, are "self-regulated". A professional order given exclusive powers by statute and allowed to make its own rules is indeed a government-granted monopoly.

Second, the mere fact that such an article has to be written to lay bare these simple facts in 2016 shows us the sheer unwillingness of interest groups (Law Societies) to admit the truth.

"Legal services are unavailable to the majority of the population at a reasonable cost" -- indeed, as any good economist would tell you, any monopoly, cartel, or artificial restriction on the free market will cause this. This literally economics 101, yet you can speak to thousands of lawyers across Canada and they will try their best to deny this.


Fred Headon 1/27/2017 1:26:26 PM

Thanks for once again providing us with a thought provoking article. I have two comments:

First - I disagree with the comment posted on 12/8/2016. The legal profession is not a monopoly service provider. We are a regulated profession. A monopoly is the sole provider of a service (think an electrical power supplier in, at least, most places in Canada or how the telephone companies used to operate). A monopoly provider sets a uniform price for the services because they are the only supplier of the service.

Legal practice, from this perspective, resembles many other professions and businesses more than it resembles your local hydro company. While we must each hold the proper approvals to practice law, each lawyer can set the price for their services, can choose which services to offer, where to offer those services, etc. For all the differences, for example, between a restaurateur and a lawyer, from this perspective, does this not sound like a restaurant? and air carrier? a bank? For example, the restaurateur must comply with numerous regulations, must hold the proper permits to operate, etc., but can choose what kind of food to offer and at what price. Don't we all make similar decisions about our practices? We face different regulatory and ethical rules than restaurateurs but we make many similar decisions within that framework.

Better to focus on how we are regulated than to cloud the issue with references to "monopoly", which imply that the law societies are somehow making these decisions for practicing lawyers. Like serving meals, offering air transport or banking services, or numerous other activities, to practice law requires permits, of a sort, but that does not make us a monopoly provider.
The second point is related: let's not hide behind an (unfounded) argument that because law societies hold monopoly power that lawyers cannot better serve the needs of our fellow citizens.

I agree that the data illustrates that our profession is falling short: there is a social contract-like bargain that was struck some time ago whereby we agreed to perform certain services which are important to the kind of democracy, market economy, and civil society we expect to enjoy. In exchange, we were granted the privilege to self-regulate (the reasons why not being regulated by the government remain important, but I leave for another day why "independent" regulation, in contrast to "self" regulation, may suffice).

The numbers in the article are consistent with those I have encountered: the vast majority of problems of a legal nature in Canada are being addressed without the assistance of a lawyer. That suggests we are not living up to our end of the bargain. One answer may be, as suggested in the article by the author and in the words attributed to Malcolm Mercer, to leave to people outside the profession the space to provide the needed services. I see that logic: we can't insist on our exclusive right to do things which Canadians need done if we choose not to do them.

I wonder if there is not another, perhaps more satisfactory answer: should it not be up to the members of the legal profession to find ways to serve those needs? Ways that are affordable for the client, yet sustainable for the lawyer involved? ways that address what CBA has heard from clients about the need to deliver legal services, even sometimes at the price we charge today, in ways that better connect with them, that are more transparent, that involve them and other professionals more directly? I don’t find it satisfactory that we, as a profession, would say: “we recognize there is a legal aspect to the problem you are facing, but we will leave it to someone who is not trained in the law to help you resolve it”. That violates the underpinnings of that bargain we struck.

Shouldn’t we say instead: “we have taken on the challenge, we have learned how to deliver legal services differently, we have worked with other professionals to develop processes and systems to meet your expectations, dear client”? Can’t we say, when cost is an issue, that “we can reduce the cost by limiting the lawyers’ involvement to those parts of the matter where our training is needed, and work with others who can handle the other parts”? Might that not better serve the client and leave them feeling better served? To illustrate this point I often look, to dentists. Most of us will now spend most of a dental cleaning appointment with a hygienist, while the dentist works on more complicated matters for another patient. Before leaving the clinic, or if a complication arises during the cleaning, I have the comfort of knowing that the dentist has directed her attention and her professional training to address any part of my problem that the hygienist cannot resolve. Dentists didn’t just say “let's leave cleanings to others”; they found new ways to work. We can, too. We owe it to Canadians to try.



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