Lawyers: Another conspiracy against the laity?

The common law system is too complex and costly—let's fix it.

The inefficiency and high cost of the Canadian legal system has always amazed me. Why should it take six or more years for a court case to come to a conclusion? Why are lawyer’s fees so high that going to court is affordable only to Canadians who are quite wealthy or poor enough to qualify for legal aid?

Part of the answer, no doubt, is custom. The common law system, inherited from Britain, has evolved over centuries. That’s the way things have been so that’s the way it seems they should be. It could also be that the Law Societies in the 13 provinces and territories, which are entrusted with regulating the legal profession in the public interest, actually appear to be functioning more like cartels.

At least that is what a recent ruling in a New Brunswick court case would seem to indicate. The case began several years ago when First Canadian, a title insurance company, sued the Law Society of New Brunswick for amending its professional standards to require a lawyer to be present when property owners swore affidavits for the sale or mortgage of a property. This amendment dealt a blow to First Canadian’s growing business of offering a cheaper alternative to lawyer’s title registration services.

Last month, First Canadian received news that it had won. As reported in the Globe and Mail on Oct. 31, the judge ruled that the Law Society had put the commercial interests of its members ahead of its statutory duty to protect the public interest. “The predominant purpose … was to address the concern about competition. … This purpose was not authorized by the Law Society Act,” he said.

This outcome is consistent with the view long held by many economists—see, for example, Milton Friedman’s Capitalism and Freedom (Chapter 9). They claim that the power of licensure bestowed by governments on professional associations often ends up misused. The intention of licensing is to preserve professional standards but it can also be used, under the guise of maintaining those standards, to prevent persons from offering competing services at lower prices.

Applied systematically to restrict competition, the result is a service that offers Cadillacs when most people have budgets only for Camrys. This leads one to wonder what good are quality standards when only the wealthy and subsidized poor can afford the service. Shouldn’t there be better balance between accessibility and professional standards? It’s enough to make one recall George Bernard Shaw’s quip about the professions being a conspiracy against the laity.

Things must be truly getting out of hand when even senior members of the legal profession complain about high lawyer fees. Retired Quebec Superior Court Justice John Gomery (who presided over the federal sponsorship inquiry) is on record, as reported in a National Post article, as saying the justice system is on a “suicidal” path unless lawyers drop their fees. And Philip Slayton, a former University of Western Ontario dean of law who recently authored Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession (2007), is critical of the profession’s disregard for the inability of the middle class to access the courts.

Then there is the Chief Justice of the Supreme Court, Beverley McLachlin, who on several occasions has decried the rise in the number of Canadians’ representing themselves in court because they cannot afford the legal fees. “In some courts, on some days, I am told, unrepresented litigants are up to 40 of the cases,” McLachlin told a Canadian Bar Association audience. This adds further delays to a system that is already overloaded, she added.

Allowing more non-lawyers to provide legal services would be a key step toward lowering fees and speeding up the judicial process. Other countries allow more scope for non-lawyers. For example, in Britain, one of the biggest providers of legal advice is the Citizens’ Advice Bureau, which is staffed with salaried managers, trained volunteers, and professionals (including solicitors) available as backup or for specialized advice.

According to Slayton, it’s also time for the Canadian legal system to abandon self-regulation and adopt reforms like those proposed in Britain. The reforms, in essence, would create an independent panel composed mostly of laypersons to oversee the profession, and an independent office for the investigation of complaints against lawyers (a real life, “highly successful” example is the Office of the Legal Services Commissioner in New South Wales, Australia).

Montreal doctor Jacques Chaoulli spent eight years representing himself all the way up to the Supreme Court where in 2005 he successfully persuaded the top court to strike down Quebec’s ban on private medical insurance. One of his suggestions for improving the legal system: Canadian lawyers should provide consulting services for people who want to represent themselves, just like lawyers in the U.S. do (which is a lower cost alternative to direct representation).

Deborah Rhode, a Stanford law professor and leading scholar on legal ethics, argues in her book, Pro Bono in Principle and in Practice (2005), that lawyers bear an ethical duty to ameliorate “their monopoly’s deleterious effects” by doing more pro bono work for those who are disenfranchised. After all, “the state-sanctioned scarcity of legal services” is the reason for their affluence, she writes.

To be fair, the problem lies not entirely with the law societies. The complexity of court procedures also contributes to delay and high costs (the Supreme Court of Canada’s Web site has a section on self representation that advises: ” … it is a good idea that you get a lawyer as the procedure is complicated”). It thus follows that another part of the solution would be to simplify the tangled web of court procedures.

Until fees come down, litigants can save themselves a fortune and register a vote against a cartel-like arrangement by joining the do-it-yourself trend running through other industries such as investing and real estate services. The great enabler, of course, is the Internet, which yields easy access to any Canadian statute, regulation, or case. If you have the time and dedication to do it right, success is possible, as Chaoulli demonstrated.