I read with interest Vern Krishna’s column [“A small, but significant, step in access to justice,” Sept. 7, 2009] in which he stated that the creation of a new law school in British Columbia, and the resulting increase in the number of practising lawyers, will improve access to justice by reducing the costs of legal services.
This is an opinion I have heard in the past from a bencher here in Ontario, and with all due respect to those who share it, I believe the idea and its promise are unrealistic.
Krishna raised two related but distinct issues. The first is that the number of lawyers who practise in smaller communities seems to be dropping, and that members of the bar serving them are aging. I believe this is a problem but not one that increasing the number of law school graduates will necessarily improve.
The second idea is that legal services are too expensive and that therefore more competition will help. This is an overly broad and not particularly accurate presumption.
For example, in my community the legal fees charged by lawyers for real-estate transactions and for estate administration are generally lower than they were when I started practising more than two decades ago.
The areas affecting ordinary people where costs have increased are limited, mainly in family and criminal litigation. So, it is not costs generally that are high - just costs for specific areas of the law.
Moreover, the issue is not that the fees for these areas are unreasonably high; it is that people often do not have the money to pay the costs.
Statements by leaders of our profession suggesting that the problem is broader than it is are unhelpful. It should be recognized that lawyers practising family law and criminal law on the whole give good value for the money. We need to inform the public that our services are worth the cost. The issue we need to deal with is how to help people handle the cost.
The suggestion that the issue of access to and the price of legal services is simply one of supply and demand, and that the market will drive down costs of private practice lawyers if there are more providers, is overly simplistic.
Does anyone believe that we could reduce the escalating costs of our medical system by graduating thousands more physicians every year? I don’t think so. The same applies to our legal system.
On the issue of lawyers choosing not to practise in smaller communities, does anyone think that law school graduates, most of whom face huge debt from their studies, will eagerly seek work there when the fees they can charge are already lower than in larger urban centres? (This is one area where market forces are readily apparent, but the lower costs result not because we have more lawyers; in fact, we have fewer per capita.)
New graduates want to earn incomes that will allow them to have decent lifestyles. If they have to work an inordinate number of hours to earn a decent income in a smaller community, they won’t choose to work there, particularly when the main alternatives to private practice are very appealing: a lucrative position in a firm in a large urban centre or a job in the public sector.
Neither of those options increases the availability of legal services to ordinary people in our smaller communities. I personally consider it unfortunate that many of the young lawyers practising in my community have left private practice to work in the public sector but I have never heard anyone complain about this phenomenon despite the negative effect it has had on the availability of legal services.
When I started in the legal field many years ago, there were numerous lawyers in our community who had general practices doing criminal cases, family law, and real estate. Their real-estate business was sufficiently lucrative to largely carry their practices and subsidize their criminal law and family law work.
Now, however, financial institutions and title companies have skimmed off some of the real-estate work and driven prices down.
As well, legal aid for criminal and family law work has been cut back or held at low remuneration levels such that many lawyers can’t make a living and therefore refuse or limit the cases they take on.
To the extent that family and criminal law costs have risen, it is partly because lawyers can’t afford to maintain a practice without charging at least reasonable fees. The government has done nothing to seriously address the legal aid problem.
Generalists are disappearing as a result and also because judicial decisions on solicitors’ negligence impose such high standards that quite competent practitioners are leery of the liability. In turn, lawyers become increasingly specialized, which is a problem in small communities where there may only be a few practitioners.
The law societies’ response to the problem is lamentably weak. Instead of useful initiatives, we have the encouragement of specialization and the suggestion that we offer more services pro bono. The latter idea is something we have heard regularly in speeches from members of the bench.
But the fact is that those of us who provide legal services to people of modest means already do a great deal of pro bono work. We do so without recognition and don’t need to be told to do so. In any event, the provision of legal services pro bono would have little impact on the perceived problem of high legal costs generally.
It must be recognized that some responsibility for the higher cost of legal services must rest on our judges. Their failure to control the trial process adequately has resulted in unnecessarily lengthy trials and pretrial procedures. Their decisions on solicitors’ negligence result in lawyers opting for the “counsel of perfection” even in relatively simple matters, which entails more time on the file and more cost to the clients.
So yes, we have a problem with access to justice in this country and with some legal costs rising, particularly for litigation. Our law schools, public sector employers, financial institutions, law societies, and the courts have either exacerbated the problem or are doing nothing to find real solutions.
But let’s not kid ourselves. Simply increasing the number of lawyers out there won’t do much to fix the problem.
Brian Finnigan is a lawyer with Waterous Holden Amey Hitchon LLP in Brantford, Ont. He has practised law for 20 years.
