Three Routes to Justice for All

Lawyers Weekly, October 30, 2015.

Full text:

The LSUC needs to expand the scope of paralegals, online information and ABS.

A statutory mandate was given to the Law Society of Upper Canada almost ten years ago: “Act so as to facilitate access to justice for the people of Ontario.” How effectively has it been carried out?

Undeniably, access to justice is now taken seriously at Osgoode Hall. Recent initiatives such as the treasurer’s action group on access to justice are encouraging to those who want all Ontarians to enjoy the law’s benefits.

While great strides have been made, a great distance remains to be travelled. Three policy areas — paralegal practice, online information, and alternative business structures — illustrate both how far the law society has come and how far it must still go.

Paralegal practice

The legislation (Access to Justice Act 2006) that created the access to justice mandate also entrusted the law society with the regulation of paralegals. The good news is that paralegal regulation appears to be effective in terms of licensing, codes of conduct and discipline. Lawyers’ fees are beyond reach for most Ontarians when billed hourly. When levied on a contingency basis, they cut deep into recoveries for individual plaintiffs, who are seldom financially secure even after a favourable litigation outcome. It is very important that there be an affordable, but still reliable and regulated, alternative to lawyers.

The problem is that the paralegal alternative is open for only a very small set of legal needs: Small Claims Court, administrative tribunals, and minor criminal cases. In family law, which is probably our worst access to justice quagmire, paralegals are prohibited to engage in any independent practice whatsoever.

The traditional objection to expanded paralegal practice is that everything outside of the current scope is so complicated and risky that no one without a full lawyer license can possibly offer competent service. This objection should be subjected to comprehensive and objective scrutiny.

What types of case can be competently handled by what legal professionals? How do we establish scopes of practice that maximize the public interest, taking into account client interests in price and choice as well as quality? Is it really impossible for licensed paralegals to competently handle, for example, legally straightforward “guideline” child support cases? These questions should be answered through open and rigorous study, informing evidence-based scope of practice definitions.

Finding legal professionals

Even if the fees are manageable, it is often a struggle for an individual to find a law firm with the right expertise, service package and trustworthiness. Personal referral is the time-honoured way to find a professional, but in our urbanized mass society it no longer works for everyone. The law society’s referral service and lawyer and paralegal directory are already helping access to justice by connecting people to legal professionals.

The next step is to build out the directory into a full-featured platform telling prospective clients how to find the perfect firm. Borrowing from sites like Airbnb and TripAdvisor, the directory should include detailed information about each professional’s services and, importantly, prices. This information can be gathered from licensees on their annual reports.

Reliable and unbiased service quality information should be in the directory as well. The law society can use practice audits and client surveys to gather this information and make it freely available online. Doing so would make a major contribution to access to justice in this province.

Alternative business structures

Permitting alternative business structures (ABS) means allowing lawyers and paralegals to collaborate with non-licensees in new ways. Access to justice can flourish if Ontario firms offer innovations such as flat fees, better use of technology and one-stop shopping for legal and non-legal needs. However, it is very difficult for the small, owner-operated law firms which serve Ontario’s individual clients today to provide all of this alone. They need capital and expertise from outside the legal guild.

The law society has shown commendable flexibility in permitting professional corporations and multidisciplinary practices. It is now time to take another careful step forward, and permit limited non-licensee investment in and management of law firms.

To foreclose on ABS’ access-enhancing potential on the basis of speculative ethical concerns would be gratuitous, given that these concerns can readily be addressed through fine-tuned entity regulation. To foreclose on this potential in order to protect Ontario lawyers from new competition would be a grave dereliction of the law society’s public interest mandate.

The next reforms

Over the past decade, the Law Society of Upper Canada has done good work to facilitate access to justice for the people of Ontario. The fact that the problem is (obviously) not yet solved is not the law society’s fault. However, this reality does necessitate continued and expanded efforts from the law society, along with the courts, the government, the law schools and the entire profession.

The next generation of access-enhancing regulatory reforms should include an evidence-based paralegal scope of practice definition. It should include a full-featured online directory of legal professionals including price and quality information. It should include an open door to alternative business structures, accompanied by fine-tuned regulation to safeguard clients and legal ethics.

These are not easy pills to swallow. Although they offer exciting opportunities, they also require a tolerance of new competition and new accountability. For the law society to embrace them will prove that our public interest regulator, and the legal profession that stands behind it, are truly dedicated to making justice accessible to all.

Noel Semple is assistant professor at the University of Windsor Faculty of Law. He is the author of Legal Services Regulation at the Crossroads: Justitia’s Legions.