Late last year, B.C. Court of Appeal Chief Justice Lance Finch spoke of the high cost of legal services being an obstacle to access to justice.
“What quality of justice can a litigant receive when he has no lawyer to represent him?” he asked, noting he believes it’s “morally wrong that some are able to enforce or defend their civil rights while others, based solely on their inability to pay, are denied access to justice.”
Finch also referred to the high cost of legal services as “the elephant in the room” that “no one wants to talk about.”
To his credit, Finch wants to do something about the high cost of legal services. Instead of debating the issue, he wants to address it.
In seeking to do so, Finch focuses on economic theory, namely the law of supply and demand. Lawyers have a monopoly on the provision of most legal services and, “regardless of the purpose identified for maintaining a monopoly, the effect of the monopoly itself can only be to restrict supply and increase cost.”
His solution is to increase the supply of practitioners by enrolling more students in law schools, reducing the articling period, and qualifying more lawyers to practise.
I suppose they might present partial solutions, although there’s no guarantee the additional lawyers wouldn’t practise in the more lucrative areas of law or that rates would decrease appreciably.
Finch’s remarks may be candid in focusing more on reducing fees as opposed to cutting the costs of litigation or streamlining the civil justice system, but I have some misgivings as to the reasons why he’s concentrating on the monopoly situation.
That’s because he argues we must address the monopoly in large part due to the threat it poses to self-regulation. He believes that “government regulation is to be avoided, and that the profession must strive to protect its independence and self-regulatory powers.”
If lawyers want to put off the debate on whether self-regulation of the legal profession remains appropriate, a better suggestion would see the respective law societies take an active role in reducing legal fees and providing better protection for the public.
Ontario’s Law Society Act specifically states that in carrying out its functions, duties, and powers under it, the Law Society of Upper Canada “has a duty to act so as to facilitate access to justice for the people of Ontario” and has “a duty to protect the public interest.”
Surely, that allows the LSUC to take an active role in reducing legal fees in order to minimize a major obstacle to access to justice.
The LSUC, however, doesn’t appear to be doing so. Instead of providing guidance to lawyers on appropriate and fair billing practices, the Rules of Professional Conduct state merely that a “lawyer shall not charge or accept any amount for a fee or disbursement unless it is fair and reasonable and has been disclosed in a timely fashion.”
They list various factors in commentary in an attempt to assist lawyers to determine whether a fee is fair and reasonable but provide little practical guidance.
In addition, when members of the public seek information on the LSUC web site about fee disputes, it brusquely tells them that “if you believe the fees charged by your lawyer were too high, contact the assessment office of the Ontario Superior Court of Justice.”
In doing so, the LSUC is ignoring its duty to protect the public interest by forcing people to commence a legal proceeding. It’s obvious that commencing an assessment proceeding and carrying it through to a successful conclusion would ideally require the assistance of a lawyer.
Disgruntled clients find themselves in a position in which they must retain someone else to contest the first lawyer’s fees. This situation alone presents an excellent argument for revisiting self-regulation.
Equally problematic is the LSUC message to clients who believe their lawyer has made a mistake. The LSUC web site advises them that “if you believe a lawyer or paralegal has made a mistake, you will have to deal directly with the lawyer or paralegal or sue the lawyer or paralegal. You may wish to seek legal advice about your options.”
If self-regulation means clients are on their own in dealing with fee disputes or negligence claims, shouldn’t the matter be open for debate?
Finch has opened the door to debate on the elephant in the room. By all means, let’s follow through with that debate but at the same time let’s discuss the equally if not more important topic of self-regulation.
Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].
