Canada's Law Societies Need a Civil Service

Abstract

The law societies’ articulated mandate shows insufficient concern as to: (1) the threats to the legal profession’s markets presented by the commercial producers of legal services such as the very successful LegalZoom; and, (2) the legal profession’s political vulnerability due to its failure to try to solve the access to justice problem that is the unaffordability of legal services for middle and lower income people (the “A2J problem”). Theirs is a mentality of maintaining fixed and unchanged: (1) law society management infrastructure; (2) the “bencher mentality” of its lawyer-managers; and, (3) its 19th century institutional culture. That will bring about either, their replacement, but more likely their continued reduction in purpose, power, prestige, and lawyer membership.

The price of the “bencher mentality” is inherently poor law society management by practicing lawyers. No longer is it possible to be both a good lawyer and a good bencher. Canada’s law societies need a national civil service so that its bencher-managers can act like an elected government’s Cabinet ministers, and not have to be its civil service as well.

The cause of the A2J problem is, “there are no economies-of-scale in the practice of law.” For that reason, all of the manufacturing of goods and services has moved away from the “cottage industry” method of production that is still used by the legal profession, to various forms of “support services” methods of production. Automobile manufacturers have their “parts industries.” And no doctor’s office provides all medical treatments and remedies for all patients as does a law firm try to do for all clients. A civil service for law societies could establish such support services for the legal profession. Otherwise, affordable of legal services, beyond routine legal services, for middle and lower income people is not possible. This article sets out a long list of such support services.
But, such a solution leaves in place, management by way of the “bencher mentality.” Lawyers like the opportunity to embellish their careers that the bencher position gives them. It can be helpful in becoming a judge and advancing the fortunes of one’s law firm. And, “organizations do not change until the fear of the consequences of not changing, is greater than the fear of the consequences of changing.” Until they fear the consequences of not changing, law societies will remain too devoted to maintaining their 19th century origins of institutional structure and culture. Then the only way the A2J problem will ever be solved is by way of some form of socialized law.

Innovation requires pressure, but that pressure can be that provided by inducement as well as by fear. A support services method of production can help lawyers make money as well as serve their clients better.

Keywords: Law Society, Bencher, Civil Service, Access to Justice, Unaffordable Legal Services, LegalZoom, A2J Problem, Canada