Slaw.ca Legal Ethics Column, Dec. 12 2017
Tyrell Moodie, accused of drug offences and facing several years in prison, was denied a Legal Aid Ontario certificate because his income of $16,211 per year exceeded the cut-off threshold. Legal aid services for refugees in B.C. and Ontario were threatened with drastic cuts in 2017. Self-represented litigants are now the majority in many family courts, mostly because people cannot afford the legal assistance that they would love to have, and legal aid won’t pay for it.
Every media story about a legal aid shortfall includes a quote from a lawyer, pointing the finger at the government for inadequate funding. However, every time the legal profession points its finger at the state, three fingers are pointing back at the legal profession. As trustees and beneficiaries of the legal system, lawyers should make a more tangible contribution to ensuring its accessibility.
I suggest that our law societies should collect mandatory “access to justice levies” from all licensees, and use the money to fund access to justice for people of modest means. These levies should be progressive (calculated based on the income of each licensee). The clinics and programs receiving the funds should be selected by the licensees themselves, through participatory democracy processes.
Isn’t this the Government’s Job?
It is true that legal aid is a collective social obligation that the state must support. However, there is no reasonable prospect that the state will meet access to justice needs, especially given voters’ persistent apathy on the topic. It is lawyers who know the problem exists, and lawyers who have the means to solve it. We should take responsibility for doing so.
Canadians have an unfortunate tendency to assume that (i) the government will take care of people in need, and (ii) individual citizens are therefore off the hook for doing so. (This might be why Canadians tend to be less personally generous than Americans with charitable donations.) Legal aid is one of the areas in which Canadian governments are definitely not taking care of people in need.
Another argument for giving back is that lawyers are financial beneficiaries of a legal system that we largely control. Legal services regulation, which is largely devised and enforced by lawyers, is tight in Canada compared to many countries. There are relatively few lawyers per capita here, and a very large set of profitable activities is reserved for lawyers to the exclusion of potential competitors. Tight regulation both increases Canadian lawyers’ incomes and makes our services less accessible. An access to justice levy is one way to give back.
From Each According to Their Means
Any access to justice levy should be progressive, like income tax (and like dues in some professional organizations). Income inequality has increased in the legal sector, as in other parts of the workforce. Many lawyers earn less than the average Canadian, and these practitioners are often the same people who actually work for low-income clients. Others earn six- or seven-digit annual incomes from the practice of law.
Calculating progressive levies would require information about lawyers’ incomes, and this would lead to challenges. If it is considered too intrusive for law societies to require T4s from every lawyer, then a flat access to justice levy could be established, with discounts offered to those who can document income below a certain amount. Lawyers in most provinces must already disclose annual billings to indemnity insurers, and this information could also be used to calculate the levy.
You might not trust your Benchers to decide how best to spend your money on access to justice programs and clinics. A participatory budgeting process would allow licensees to vote, on their Annual Reports, for the most important causes. Those votes would determine how the levy funds would be distributed by the law societies. Alternatively, each licensee could be allowed to choose the recipients of his or her own levy, from a pre-approved list.
Participatory budgeting, like progressive rates, could make access to justice levies more palatable than proposals for obligatory pro bono, or mandatory flat contributions to support articling positions helping underserved populations.
“I shall seek to ensure access to justice and access to legal services.” Every lawyer recites these words before being called to the Bar in Ontario, as part of the Barristers’ Oath. On a plain reading of this language, pursuing access to justice is not merely a collective aspiration. It is a duty which falls on each individual lawyer. The mandatory access to justice levy would be one way to ensure we are not perjuring ourselves when we take this Oath.
 According to tax data analyzed by the Fraser Institute, 21.3% of all Canadian taxpayers donated, and donations equaled 0.56% of our aggregate income to charity. 24.5% of our southern neighbours collectively donated 1.42% of their aggregate income.