RSS FeedThe Unrepresented: An Update
A few weeks ago I posted a blog about the Unrepresented – those who can’t afford a lawyer and don’t qualify for legal aid. A few days ago I noticed an article in the Star about an initiative called justicenet that seeks to address this very problem. Through the efforts of Heidi Mottahedin, an internet-based service has been launched that connects people in need with socially conscious lawyers who are willing to work at a reduced rate.
I think that journalist Carol Goar is absolutely right when she suggests that this effort will be insufficient to deal with the enormous structural problem facing our legal system; however, Heidi Mottahedin deserves high praise for her efforts, as do the lawyers who are sacrificing income to be a part of justicenet.
Meanwhile, Legal Aid Ontario is planning to open a Family Law Services Centre in North York. No doubt this will be similar to the Family Law Information Centre at the London Superior Court, where those in need can get information about the law, shelters, counseling and mediation services in the area etc..
Family Law is an area where the lack of affordable legal help is particularly acute, and although the legal assistance provided at these service centres is limited, it is quite helpful nonetheless. A brief consultation will ensure that matters that don’t belong in court are redirected while matters that do belong in court are refined to exclude extraneous issues. The result is a more streamlined court system. At a lecture at Western Law a few weeks ago, Justice Harper expressed his desire for every court to have a Family Law Information Centre. He left me with the impression that he is working behind the scenes to try to make it happen.
Apparently there are people in the legal community doing the hard work to bring about change. If enough people step up to the plate, who knows? Maybe the problem of the unrepresented can be wrestled to the ground without resorting to harsher measures.
The Unrepresented
A serious problem with the Ontario justice system that is overshadowed by the legal aid boycott is the enormous segment of the population that does not qualify for legal aid but can’t afford a lawyer. These are the unrepresented.
To understand the scope of the problem, one must appreciate that only those who earn approximately $8,000 a year or less qualify for legal aid. This is a shocking figure. Imagine a single mother with two children earning $16,000 who is embroiled in a bitter custody battle with a physically abusive dead-beat ex. In Ontario, she must pay her own legal bills while supporting herself and her family.
A recent article in the Globe and Mail highlights the efforts by Bay Street heavy-weight Heenan Blaikie to help the unrepresented in high risk communities in Toronto. Qualified candidates receive legal advice free of charge, the cutoff income for a family of four is $75,000 and associates can count their pro bono work as billable hours. This is generous and very commendable. Unfortunately this firm doesn’t have any family or criminal law lawyers, and this is where the need is most accute. None the less, Heenan Blaikie deserves high praise.
I doubt very much that a concerted effort to encourage pro bono work would be sufficient to alleviate the problem. Something larger needs to be done. Various members of the legal community are pushing for reforms, however a broader public awareness of the problem would definitely help to generate the political will necessary to bring about change.
Vancouver 2010 and Civil Liberties
The British Columbia Civil Liberties Association and Pivot Legal Society are looking for volunteers for Legal Observer teams during the Olympics. They’ll be having training sessions (in fact, their training manual is already online (PDF)):
Legal Observer teams will be observing major protests and other potential conflict hot spots like Olympic venues and the Downtown Eastside. They’ll report observations back to the BCCLA’s team of volunteer lawyers who are prepared to go to court to protect people’s rights where complaints can’t be resolved informally. Our Observers’ first-hand evidence will form a solid foundation for those legal actions. Observers are the watchful eyes that will be focused on police, military and private security conduct to ensure accountability.
The BCCLA has a pretty good roundup of reasons to be concerned about how the Olympics are negatively impacting civil rights:
- The Olympic Torch Run Manual that calls on cities to limit the distribution of political leaflets during the torch run.
- The Clean Venue Agreement that outlines a VANOC swat team that will seize offensive literature on public property, how the IOC required VANOC to prevent anyone other than Olympic sponsors from advertising during the Games, and how private security guards will prevent people from holding signs or wearing clothes with political messages in Olympic venues.
- The Olympic Host City Agreement in which the IOC required the City of Vancouver to prevent international media and attendees at Olympic venues from seeing political speech inside and outside the venues, which was signed by then Mayor of Vancouver Larry Campbell.
- The Olympic Charter in which the IOC dictates at Rule 51 that “No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas. “
- The Manual for Candidate Cities which demands compliance with the terms of the Olympic Charter for all candidate host cities, including Vancouver, during and after the bid process.
- The Olympic Technical Manual on Media, in which the IOC attempts to limit coverage of the Games to coverage that “by its content, spreads and promotes the principles of Olympism,” and which grants the IOC the ability to withdraw accreditation from any journalist at any time for any reason.
- Letters in which the Olympic Integrated Security Unit and Canadian Security Intelligence Service (CSIS) refuse to refrain from using Agents Provocateur or to assume the leadership of activist organizations, following a request from the B.C. Civil Liberties Association to foreswear the tactics. Such tactics may be permissible under certain interpretations of Canadian criminal and constitutional law, but their legality is disputed by the BCCLA.
Access to Legal Services: Lessons from the Medical Profession (Part 3 of 3)
This is the final instalment of a three-part series on access to legal services. In Part 1, I argued that the crisis facing access to legal services is precipitated by a fundamental mismatch between supply and demand: we simply can’t increase the number of practising lawyers fast enough to meet the rise in demand for legal services. In Part 2, I contrasted lawyers’ professional monopoly on providing legal services with the health sector, in which a myriad of different kinds of doctors, nurses, pharmacists, physiotherapists, and other service providers all have a role to play in delivering health services to the public. The model adopted in the health sector has been successful because it enables more service providers to be trained and hired at a lower cost, increasing access to service. At the same time, a robust but flexible model of training, accreditation, and disciplinary oversight ensures that access does not come at the cost of quality of service.
Today, I would like to close the loop by examining some ways in which the legal profession can learn from the health sector. First, I will argue that the legal profession is already losing its monopoly on providing legal services through a series of domestic and international examples. Second, I will posit some possible emerging new job categories in the legal profession that could, if supported by law societies, allow non-lawyers to offer an extensive range of legal services without compromising quality of service. Finally, I will address some possible objections that might be raised against my proposals and consider some pragmatic barriers to moving forward.
As I have argued throughout this series, the legal profession must reject the long-held proposition that lawyers are or ought to be the exclusive providers of legal services. While some argue that only a lawyer can properly identify and address a client’s legal issues, there are already a considerable number of non-lawyers providing high-quality legal services both at home and abroad. To that end, I want to discuss the following examples:
- paralegals;
- student legal aid lawyers;
- social benefit advocates;
- patent agents and trade-mark agents;
- real estate agents and financial professionals; and,
- Japanese shihō shoshi and gyōsei shoshi.
Examples of Non-Lawyer Legal Service Providers
Paralegals
The most salient example in Canada of non-lawyers working in the legal services sector is that of the paralegal. In Canada, paralegals typically work as assistants to lawyers in order to support the lawyer in providing services to clients. In Ontario, paralegals are regulated by the Law Society of Upper Canada under the authority of the Access to Justice Act and are subject to prescribed educational prerequisites and a professional code of conduct. Paralegals undertake a wide range of legal work under the supervision of a lawyer, requiring a thorough understanding of both substantive and procedural laws in their jurisdiction. However, paralegals are not authorized to provide legal advice or representation to clients directly.
Student Legal Aid Lawyers
In part to help meet the demand for legal aid services in Winnipeg and in part to give courtroom experience to law students, Manitoba Legal Aid operates a student legal aid clinic at the Robson Hall Faculty of Law. Working under the supervision of lawyers and faculty, second and third year law students handle criminal matters in which jail is not likely, as well as some civil files. Students handle the file from intake to disposition, including making court appearances and even conducting trials. Every year, the centre handles hundreds of criminal files for defendants who would not otherwise qualify for legal aid representation. The students are regulated by the Law Society of Manitoba.
What is interesting about this clinic, from my perspective, is that it implicitly acknowledges that the full qualifications of a lawyer may not be necessary to handle simple criminal defence matters. By definition, none of the student lawyers has graduated from law school, completed an articling year, or been called to the bar. In fact, the only prerequisite for volunteers is the successful completion of one year of law school (students cannot handle trials on their own until they have completed a second year course in the law of evidence). This means that most of the volunteers at the clinic have only taken a single credit course in criminal law. Implicitly, the Law Society seems to be acknowledging that the completion of law school and articling are not necessary in order to provide defendants with adequate representation in minor criminal matters.
Social Benefits Advocates
The advent of the welfare state brought with it a myriad of new social benefits that qualifying citizens can obtain by application to the government. Unfortunately, ambiguities in qualifying criteria and complexities in application processes sometimes make it difficult for citizens to obtain the benefits to which they are entitled. In many cases, the value of social benefits is small compared to the fees that would be required to hire a lawyer. This creates a vacuum in which there is a need for advice and advocacy, but few lawyers willing to work for the remuneration available in the area.
Increasingly, this vacuum is being filled by non-lawyers who, for whatever reason, have specialized expertise in the workings of a particular area of government social benefits. As an example, I point to local Winnipeg company Brematson & Associates, Inc. which provides services to persons living with disabilities in accessing government disability benefits. Company founder Susana Scott advises clients on the ins and outs of disability tax credits and provides assistance in obtaining the medical documentation required to qualify. In carrying out these services, Scott’s job includes elements of statutory interpretation, providing legal or practical advice to clients, and even representation and advocacy.
This is just one specific example, but it is indicative of a broader trend in relation to the welfare state. As the scope of government programs and benefits increases, so too does the public’s need for interpretation, advice, and assistance in relation to obtaining government benefits. Yet in many cases, hiring a lawyer to provide these services would be tantamount to killing a fly with a sledgehammer. This is fertile ground for non-lawyers to provide much needed legal or quasi-legal advice to the public.
Patent Agents & Trade-mark Agents
Patent agents are individuals with specialized qualifications relating to patent laws and the procedures related to obtaining patents. In Canada, registered patent agents must complete a series of qualifying examinations and practice in the patents field for at least one year. Under the authority of the Patent Act, registered patent agents can represent clients applying for patent protection from the Canadian Patent Office.
Trade-mark agents, under the authority of the Trade-marks Act, provide similar services for clients in relation to registering trade-marks with the Trade-marks Office.
Real Estate Agents & Financial Professionals
There are also numerous professions in which specialized knowledge of a particular area of the law is necessarily incidental to the job. Real estate agents, for example, must be able to foresee possible legal issues and provide practical advice to clients in relation to their rights and obligations when buying or selling a home. Similarly, accountants and other financial professionals must have a detailed knowledge of the legal implications of their work. In particular, extensive knowledge of the Income Tax Act is an essential prerequisite for the job.
Japanese Shihō Shoshi and Gyōsei Shoshi
The Japanese legal system has gone a step further than Canada in recognizing two categories of legal service providers other than lawyers. Shihō shoshi, or judicial scriveners, perform a role similar to that of a solicitor. They represent clients in real estate and commercial transactions, prepare documents for filing in court, and may even represent clients in summary courts or in alternative dispute resolution proceedings. However, they are not permitted to represent clients in the higher courts. Like bengoshi (attorneys at law), shihō shoshi are professionally regulated and must pass a series of exams prior to admittance to the profession which test knowledge of key areas of Japanese legislation. Once admitted to the profession, shihō shoshi must maintain membership in the judicial scrivener association in their prefecture.
Gyōsei shoshi, or administrative scriveners, are responsible for preparing filings with government agencies and may even provide legal advice to clients in the preparation of such documents. Like other legal professionals in Japan, they must be registered to practice and are subject to professional oversight.
Brainstorming New Kinds of Legal Professionals
The above examples make it clear that the proposition that lawyers have a monopoly on providing legal services is at most a myth. There are already a diverse number of professionals providing legal interpretation, advice, and representation to clients. In jurisdictions such as Japan, these service providers are considered part of the formal legal system. In Canada, we have chosen to maintain the myth that lawyers are the exclusive providers of legal services. This attitude has two significant consequences. First, it creates barriers to entry into the legal services market. Second, it means that non-lawyers who do provide legal services are not subject to the kind of oversight, regulation, and educational pre-requisites that would be possible by bringing them under the auspices of the formal legal system.
In terms of the challenge of increasing access to legal services, fragmenting the legal services sector has a number of advantages over the strategy of simply increasing the number of practising lawyers. First, lawyers’ training is extremely expensive from the government’s perspective (as noted in Part 1), which in turn limits the capacity of the government to actually increase the supply of lawyers. In contrast, creating new professions with limited areas of competence saves the government money insofar as the educational requirements are more focused and specialized (unlike a lawyer’s training, which typically requires at least seven years of university). Second, non-lawyer legal professionals will presumably require less remuneration than lawyers, meaning that legal aid dollars can be stretched further to hire more people. Third, since lawyers’ fees are cost-prohibitive for the middle class, new service providers would enable the middle class to access a greater range of legal services than are currently available to them (as discussed in Part 1, those in the middle class often make too much to qualify for legal aid, but not enough to actually hire a lawyer). Finally, by pretending that lawyers are the exclusive providers of legal services, we are failing to bring professional oversight to bear on many existing legal service providers. By recognizing and formalizing new kinds of legal professionals, we could ensure high quality of service through professional oversight bodies.
What I envision are a multitude of new legal service professions, the practitioners of which are authorized to provide legal advice or representation within a clearly-defined area of competence. Each new profession would have educational pre-requisites, a registration process, a code of professional conduct, and oversight by a professional disciplinary committee. Some of these professions might work under the supervision of lawyers, while others might be authorized to work independently.
The possibilities are endless and while it is not my intention to provide a comprehensive set of possible new legal professionals, I would like to proffer a few suggestions where I believe that the need is most critical.
Criminal Defence Advocates
I will begin with the problem that gave rise to the entire discussion: the capacity of legal aid to provide services to criminal defendants. As indicated earlier, the existence of student legal aid lawyers implies that obtaining a law degree, articling, and being called to the bar are not necessary in order to provide criminal defence services, at least for relatively minor charges. We can drastically increase the capacity of legal aid by creating a new category of specially-trained criminal defence advocates. These new professionals could handle routine matters such as remands and dispositions, as well as handling entire trials for minor charges. Rather than spending seven years in university mostly studying content that is not germane to the practice of criminal law, they could pursue a shorter course of study that emphasizes criminal law, rules of evidence, procedure, and constitutional principles. These criminal defence advocates would work under the supervision of lawyers, either for legal aid or in private firms.
Social Benefits Advocates
As noted earlier in this post, the emergence of the welfare state brought with it a need for legal services related to understanding and accessing government benefits such social assistance, disability benefits, workers compensation, etc. This need is not being adequately met by lawyers, in part because prospective clients are typically lower income people. By creating formal qualifications, we can establish a new category of social benefits advocates who are empowered to give advice and represent clients who are attempting to access certain social benefits. These professionals could supplement the work of poverty law centres as well as serving middle class people in private practice.
Judicial Scriveners
As the Japense shihō shoshi demonstrate, there is room for non-lawyers to perform services in relation to real estate, corporate transactions, and related matters. There is a significant demand for legal advice and document drafting in these areas, yet the services of a lawyer are often cost-prohibitive for small businesses and middle-income individuals. Formalizing a new kind of legal professional to provide these sorts of services would not only promote access to new legal services, but could reduce the future volume of litigation down the road. I envision these sorts of professionals working in full-service firms that include lawyers, accountants, and others who would provide an extensive range of services primarily to small business clients.
Wills & Estates Professionals
Every year, a large number of Canadians die intestate, in part because lawyers’ services are cost-prohibitive to middle class individuals. It is notable that most Canadian law schools do not prescribe a required course in will and succession, implying that completing law school is neither necessary nor sufficient to enable a person to provide advice in relation to estate planning. Someone with specialized training in succession, property law, trusts, and related areas may indeed be better placed than most lawyers serve clients’ estate planning needs. Increasing access to these services would have the effect of reducing the number of people who die intestate each year, while also potentially reducing the future volume of litigation.
Domestic Violence Certificates
Partner abuse and child abuse are the most pervasive forms of illegal violence in Canada. Creating a qualification that allows social workers or employees of women’s shelters to assist women in obtaining prevention or protection orders would provide a tremendous resource to a lot of people living in very precarious situations. Moreover, this is a fairly narrow area of the law that can be taught very quickly.
Possible Objections
I foresee two central objections that might be raised against the proposals in this series. Specifically:
- that ending the lawyers’ monopoly on legal services will lead to a decrease in the quality of service; and,
- that introducing greater competition in the legal services sector will lead to a decrease in lawyers’ remuneration.
In relation to the first objection, I raise two counter-arguments. First, as I have taken pains to emphasize in this series of articles, I envision these new legal professions as being subject to the same kind of professional oversight as nurses and lawyers. Specifically, there would be a clear delineation of the areas of competence of non-lawyers, coupled with educational pre-requisites and disciplinary oversight commensurate to the responsibility. All legal service providers would be subject to a code of professional conduct and oversight from a governing college or society. It might even be appropriate to include provisions in the empowering legislation that requires a quota of lawyers to serve on the boards that govern the colleges or societies. Second, since these new job categories are designed to meet needs not currently being served by lawyers, it can be argued that the level of service provided by a non-lawyer is preferable to a complete lack of service in the status quo.
In relation to the second objection, I again have two counter-arguments. First, a decrease in lawyers’ remuneration might not be such a terrible thing, and competition may very well prove to be a positive force in the legal services sector. Besides, as professionals we are ethically bound to put the public interest before our personal interests: if ensuring that the public has adequate access to legal services means taking a pay cut, we are ethically obliged to take a pay cut. Having said that, my second counter-argument is that I don’t think that my proposals would decrease lawyers’ remuneration anyway. Again, remember that these new professions are practising in areas that are currently under-served, and serving clients who cannot afford a lawyer under the current system. The new professionals would not be “stealing business” from lawyers because they will be serving clients who do not, at present, constitute a lawyer’s business. In fact, having a greater number of service providers could lead to an increase in business for lawyers insofar as non-lawyers will have to refer clients to a lawyer in cases where the client’s legal issue falls outside the non-lawyer’s area of competence, much like the medical services model. Finally, a significant number of these non-lawyers could be hired by private law firms in order to expand their business into new areas (albeit, areas that return a lower fee than those covered by lawyers). Since the partners are taking a cut off the top of all of the fees coming in to the firm, this would be a low-cost way for firms to increase their legal business.
Moving Forward
I have argued in this series that the time has come for lawyers to reject their professional monopoly on providing legal services, following the model of the health services sector. By creating new kinds of legal professions with circumscribed areas of competence and professional oversight commensurate to their areas of responsibility, we can drastically increase the public’s access to legal services without compromising on the quality of service. This has immensely positive benefits, especially for low- and middle-income persons who cannot afford legal services in the current legal market.
There are two major pragmatic barriers facing such a project. First, there will be costs associated with training new professionals that must be borne by the state. However, as I have argued, the cost of my proposal is relatively small compared to the cost of training enough new lawyers to meet the public’s demand for service. This is because non-lawyers would be able to specialize their training in a particular area and, therefore, might not require seven years of university education (as is the norm for lawyers). As the crisis in access to service worsens, governments will be forced to address the situation in one way or another. I would argue that my proposal provides a more cost-effective way to do so than simply increasing the number of law school graduates.
The second major barrier is the legal profession itself. For centuries, lawyers have closely guarded their role as the exclusive providers of legal services. Driven in part by a concern to ensure a high quality of service, and in part by a desire to corner the market, lawyers have gone to significant lengths to prevent any movement in the direction that I am proposing. However, there is reason to be optimistic about the future.
As I have argued, non-lawyers are already providing legal services in a number of different areas. This trend has enough momentum that I don’t believe it can be stopped at this point. Moreover, the drastic inadequacy of lawyers to meet the public’s demand for service is becoming more and more apparent every day. Eventually, law societies and provincial legislatures will need to address this crisis with decisive action. Lawyers have a leading role to play in this discussion. Remembering the ethical duty we owe to the public, progressive lawyers should push their bar associations and law societies to critically re-examine the necessity of maintaining a monopoly on legal services.
Access to Legal Services: Lessons from the Medical Profession
This post is Part 3 in a three-part series. Links to the other portions are found below.
Access to Legal Services: Lessons from the Medical Profession (Part 2 of 3)
This is Part 2 of a three-part series on the topic of access to legal services. In Part 1, I argued that the traditional approach to ensuring access to legal services (that is, increasing the number of lawyers doing legal aid or pro bono work) is inadequate on its own. The reason for this is that there is a fundamental mismatch between the number of practising lawyers and the demand for legal services in Canada. Moreover, it is unlikely that increasing capacity in law schools will be sufficient to meet the shortfall. For these reasons, governments and lawyers need to pursue alternative strategies to ensuring access to legal services.
In today’s instalment, I want to turn my attention to the history of health professionals (particularly the emergence of professional nursing). As I will argue, the health services sector has long faced similar challenges to the legal community in terms of balancing the need to increase the availability of service without compromising quality of service. However, unlike the legal profession, the health sector has embraced a realistic and flexible strategy that has served it well for more than 100 years. The premise of this strategy is to reject the proposition that doctors are the exclusive providers of health services; instead, the health sector embraces a myriad of other health professionals including nurses, pharmacists, physiotherapists, and others. As I will argue, this provides an excellent template for legal services, particularly insofar as it provides for a robust model of oversight, accountability, and quality control.
The legal and medical professions have always faced similar challenges: both are self-regulating professions characterized by specialized knowledge and skill in their respective fields and also by a responsibility to the community that overrides personal interest. In the name of maintaining high standards of service and professionalism, both lawyers and doctors have found the need to be restrictive in terms of which people are admitted into the profession. In order to become a lawyer or doctor, not only must a person follow a rigorous course of academic study, but also demonstrate practical skill, moral goodness, and respect for the profession itself.
Yet despite these similarities, the medical and legal professions have diverged significantly on the point of being exclusive service providers. Lawyers have been extremely hostile toward any attempt by outsiders to provide any kind of legal service or advice, resulting in a professional monopoly. In contrast, doctors have learnt to embrace a health services sector occupied by a diverse group of different health professionals. This raises two questions that I would like to explore. First, what caused the divergence between the professions on the issue of exclusivity? Second, which model has been more successful in terms of balancing concerns of access to service with concerns of quality of service?
I believe that the answer as to why the divergence occurred comes down to two major factors. First, health services are more “natural” in the sense that even non-professionals perform health services from time to time. Second, the great wars of the early 20th century created an incentive for the state to promote an expansion in the capacity of health services.
Human being have, in one sense or another, always performed health services. Even among non-human animals, there is considerable evidence for members of a species caring for one another and tending to each other’s wounds. This fact, combined with long-held assumptions about gender essentialism, meant that even during the rise of professionalized medicine, there were always people (especially women) performing services similar to those of doctors, whether for payment or in the home. By contrast legal services derive from social constructions such as the state, the rule of law, and a system of courts to enforce legal rules. These social constructions do not exist in nature; for that reason it continues to be uncommon for non-lawyers to look after each other’s legal affairs in the same way that we look after each other’s health and well-being.
The turning point in terms of the professionalization of non-physician health providers came in the early 20th century, particularly during World Wars I and II. Because of technological advancements, these wars were unlike any other in earlier human history in the sense that combat was more frequent and prolonged. In earlier wars, there were often significant gaps in time between battles as armies moved very slowly from place to place. As a result, soldiers with relatively minor injuries had more time to heal naturally between battles. In the early 20th century, gaps between active conflict were shorter and the battles themselves often lasted longer, meaning that soldiers with relatively minor injuries had less time to heal before being pressed back into active combat.
As a result of these factors, the states engaged in warfare suddenly had an interest in increasing their capacity to deliver medical services in conflict zones. Strategically, the side that stood the best chance of winning was often the side that was best able to patch up its wounded soldiers quickly and send them back into the field. One way to accomplish this would be to increase the number of doctors serving on the front lines in conflict zones. Unfortunately, such efforts met with two roadblocks. First, there was an extremely limited number of qualified physicians and it would be impossible to train more in a timely manner. Second, it would be difficult to persuade physicians making a comfortable living at home to serve in danger zones at a lower rate of pay (the conscription option carried significant political consequences and would be considered as a last resort only).
The solution to the shortage of doctors on the front lines was to turn to women. Women were ideal candidates to perform front-line medical services for two reasons. First, social realities and assumptions about gender essentialism meant that women were considered “naturals” at caring for others including the young, the elderly, the sick, and the wounded. As such, it was believed that it would be relatively easy to train women to treat minor injuries. Second, women had very limited work opportunities in that era, meaning that they could be paid extremely low wages compared to doctors.
When the wars ended and the men returned home, many of the women who had broken into the workplace during the war remained. Despite sexism and attempts to force them back into the home, the economic reality was that women’s lower wages gave them a competitive advantage in the market. It is no coincidence, then, that the early 20th century saw more and more women entering health services, primarily as nurses, but also increasingly as doctors. Unable to prevent women’s entry into the market, the best the medical establishment could do was to regulate nursing by creating formal qualifications, clear limits on a nurse’s job responsibilities, and standards for quality and competence. Some key dates in this period of professionalization include:
- 1901, when New Zealand became the first nation to regulate nursing nationally;
- 1908, when the United States Navy Nurse Corps is established;
- 1916, when the Royal College of Nursing was established in the United Kingdom; and,
- 1919, when the United Kingdom passed the Nursing Act, which provided for registration of nurses.
Over time, the gendered hierarchy of the medical profession began to break down, as more and more women became physicians and more and more men became nurses. While there is still a significant gender disparity in both professions, the gaps continue to narrow year over year.
The two factors that I have identified in the evolution of nursing have been missing from the history of the legal profession. First, it is uncommon for non-lawyers to contemplate providing legal services in the home; for this reason, we are more likely to think that the rigorous academic studies undertaken by law students provide the only sound basis for providing legal services. Second, there has never been a war in which the outcome depended in any significant way on the number of legal service providers on the front lines. Thus, if the legal profession is to follow the example of medicine, the lawyers themselves will have to reject their roles as exclusive service providers.
The next issue that merits attention is whether the fragmentation within the health services sector has, on balance, been more successful than the monopoly in the legal profession at balancing access to service with quality of service. I argue that it has, which is not particularly surprising given the crisis facing the legal community in terms of access to service.
The fragmentation of the health service has been so successful in industrial societies that it has increased both in scope and in scale at an extraordinary rate. As of 2008, there were 16,126 active practising nurses in Manitoba compared to just 2,272 licensed physicians. These health professionals are complemented in their work by thousands of others including pharmacists, physiotherapists, technicians, and scientists.
Like other professionals, nurses are self-regulated based on a public accountability model. In Manitoba, for example, Registered Nurses (RNs) are governed by the College of Registered Nurses of Manitoba, as established by the Registered Nurses Act and its subordinate regulations. The College plays a role in establishing the registration process to ensure quality and competence, establishing best practices and standards, helping nurses to meet those standards through continuing education, and enforcing rules through a disciplinary board. This structure should sound familiar to lawyers, because it mimics other self-regulating professions including law societies and colleges of physicians.
While there was initially some concern that nurses would be unable to provide the same high quality service as physicians, those concerns have largely fallen by the wayside in light of the high level of competence and professionalism demonstrated by nurses over the years. In fact, a 2004 Gallup survey revealed that a higher percentage of respondents expressed “high” or “very high” trust in nurses (79%) than in medical doctors (67%). For the sake of comparison, lawyers were among the least trusted with only 18% of respondents expressing “high” or “very high” trust.
In addition to vertical fragmentation (that is, tiers of hierarchical qualification), the health sector has also embraced horizontal fragmentation (that is, areas of specialization within each tier). In Manitoba, for example, there are several different types of nurses including registered nurses (RNs), registered psychiatric nurses (RPNs), and licensed practical nurses (LPNs). Moreover, registered nurses may obtain an extended practice or nurse practitioner designation, allowing them to offer additional services. The colleges of nurses provide detailed guidelines on the roles, responsibilities, and qualifications required of each different type of nurse, as well as disciplinary boards that enforce the standards for quality and professionalism.
This model is extremely flexible in that it simultaneously promotes both access to service and quality of service. While recognizing the need for well-defined qualifications and professional standards, it acknowledges that the completion of medical school may not be necessary in order to provide patients with certain types of services. As a result, it is easier to train and employ a larger number of nurses to complement the work of physicians and thus to increase the province’s capacity to deliver health services to the public at a lower cost than simply training and hiring more physicians.
I think that the legal profession can learn at least 3 important lessons from the evolution of nursing:
- it is possible to end professional monopolies and still maintain high quality of service, provided proper oversight and accountability measures are in place;
- a full and expensive professional education is not necessary in order to provide limited services within a well-defined area of competence; and,
- the cost of training service providers may be lower if that education is specialized rather than general in nature.
In light of these lessons, I think the conclusion to be drawn is that the lawyer monopoly must come to an end in order to meet the challenge of rising demand for legal services. By creating new forms of qualification that are less than those of a lawyer, we can create discreet new job classes that are qualified to perform a limited set of legal services.
In Part 3 of this series, I will explore some case studies that reveal that the fragmentation of the legal profession is already taking place; that is, there are already a significant number of non-lawyers performing jobs that include statutory and common law interpretation, providing legal or practical advice to clients, and even representing clients before administrative tribunals. Using these examples as a starting point, I will posit a non-exhaustive set of proposals to create new formal job designations that incorporate educational prerequisites, standards of competence, a code of professional conduct, disciplinary boards, and an accountability model that clearly delineates the limits of areas of competence of non-lawyers. Finally, I will address some possible objections to my proposals and discuss the practical realities of getting such proposals implemented in Canada.
Access to Legal Services: Lessons from the Medical Profession
This post is Part 2 in a three-part series. Links to the other portions are found below.
Access to Legal Services: Lessons from the Medical Profession (Part 1 of 3)
Back in June, I wrote a reflection on access to justice that evolved out of classroom discussions in a second year poverty law class. Having given further thought to the issue over the summer, I’d like to re-visit the topic in a series of 3 posts. The basic premise is that the legal profession needs an analogue to the roles of nurses and other non-doctors in the health care profession. That is, we need to establish a new categories of legal professionals who are not lawyers, but who have specialized training in a particular area that qualifies them to provide a limited set of legal services.
Before I begin, I must make two notes about terminology. First, this series of posts focuses specifically on access to legal services, which is just one of many components in access to justice. A full access to justice strategy would include, inter alia, increasing the capacity and efficiency of courts, promoting alternative dispute resolution, and a multitude of other initiatives. Such topics will not be covered in this series. Second, when I speak of legal services, I am referring to a category of services that includes, but is not limited to, the work currently performed by lawyers. Certainly legal advice and representation fall under the heading of legal services, but there are other services that can properly be called “legal services” which are not typically performed by a lawyer. Later in the series, I will provide some examples of what I call “legal services” that include providing legal or practical advice based on statutory or case law interpretation, yet would not typically be the job of a lawyer today. As I will argue, we are already beginning to see a proliferation in the categories of legal professions occurring organically in the market.
My thesis in this series is that access to legal services is not coextensive with access to lawyers. Traditional approaches to access to justice over-emphasize the need to increase the pool of lawyers doing legal aid or pro bono work. These are laudable and important goals, but it are not a complete answer to the crisis of access currently facing Canadian jurisdictions. For a more complete solution, we would do well to model our profession after the example set by health professionals.
In particular, we need to abolish the idea that lawyers are the exclusive providers of legal services and advice. Instead, we should create new categories of legal professionals analogous to the medical profession, with it’s myriad of different types of doctors, nurses, physiotherapists, pharmacists, and others. While preserving the current qualifications of a lawyer (analogous to those of a physician), we can supplement the existing legal market with a myriad of professionals with carefully-defined roles and responsibilities, along with specialized training commensurate to those responsibilities. These non-lawyer legal professionals might be analogous to the roles of nurses in the medical profession. Importantly, we can ensure quality of service through an accountability model similar to colleges or associations of nurses.
Before leaping into my proposals, though, it will help guide our discussion to think about the shortfalls of traditional attempts to promote access to legal services. The basic problem is this: there is a demand for legal services that vastly exceeds the capacity of today’s lawyers to serve. As a result, the price of legal services is prohibitively high for many individuals, businesses, and other entities. The end result is that the wealthiest segment of the population gets full access to counsel, while the rest of us get no access. This creates a class-based disparity that has the potential to work injustices in legal outcomes (not just in terms of litigation, but in far more pervasive ways as well).
The traditional response to this phenomenon has been to shift the distribution of legal services away from the extremely wealthy and toward the rest of the population. This happens in two ways. First, state-funded legal aid centres provide limited representation to low income people for the most pressing and essential forms of litigation (mainly criminal and family matters, although very occasionally other types of services are provided as well). Second, non-legal aid lawyers sometimes take on pro bono cases or work for a reduced rate.
This approach suffers from at least three crucial flaws:
- it only affects the distribution, and not the capacity, of legal services;
- it is difficult and costly to effect changes in distribution of services; and,
- it still leaves significant gaps in access to legal services.
The most glaring flaw in the traditional approach is that it fails to address the underlying mismatch between supply of and demand for legal services. Increasing the number of lawyers who choose legal aid or pro bono work only decreases the number of lawyers working in other areas. While the distribution is made slightly more equitable (and only slightly), the inadequacy of legal service providers to meet the needs of the community at large remains. Unless the pool of law school graduates and new lawyers can be increased dramatically (perhaps by an order of magnitude or more), persuading more lawyers to do legal aid is no solution to the underlying problem of inadequacy.
Having too few lawyers to meet the demand for legal services creates a second challenge for legal aid in that it drives up lawyers’ remuneration. As a result, it becomes more and more difficult for the government to hire and retain legal aid lawyers. The issue of inadequate remuneration for legal aid has come to a head in Toronto where the Criminal Lawyers’ Association has been calling for its members to boycott taking legal aid certificates since July. In a sense, the attempt to provide adequate legal aid faces a geometric challenge: how can the government afford to simultaneously hire more lawyers and increase the levels of remuneration for legal aid? The short answer is that most governments either can’t or won’t do both (and in many cases either), ensuring that legal aid will never be adequate to meet the needs of low income individuals.
Finally, even if we were able to drastically increase the capacity of legal aid, we would still face gross inadequacies in access to legal services. Most legal aid centres only deal with a limited set of legal issues and only provide those services to those below an arbitrary income cutoff. While criminal defence and some family matters are usually covered, this barely scratches the surface of the legal services that a low income person might require. Moreover, due to the cutoffs, there is a significant pool of individuals who earn too much money to qualify for legal aid, but don’t earn enough to actually hire a lawyer.
All of the above problems should drive home the point that until we drastically increase the pool of legal service providers, we cannot possibly address the crisis of access. The most immediate inference that can be drawn from these facts is that we need to increase capacity in our law schools and admit more graduates into the profession. This would certainly be a positive step, and I am encouraged to see discussions in both Ontario and British Columbia about the possibility opening new law schools as means to increase the number of law school graduates.
Unfortunately, increasing capacity in law schools won’t be enough. The difficulty in cranking out more law school graduates is that law students are expensive to educate. Although tuition fess (which are, in my view, excessive already) defray some of the cost of teaching, the fact remains governments still subsidize about half the costs of a legal education. In this sense, increasing law school capacity won’t succeed for the same reason that increasing legal aid capacity won’t succeed: governments simply aren’t able or willing to make the investments necessary to complete the task.
From this discussion, it is clear that a new approach is needed. I submit that a more complete solution to the crisis of access to legal services should fulfil the following conditions:
- it should increase the pool of legal service providers in order to address the overall shortage of lawyers;
- is should increase the capacity of legal aid and other entities to provide legal services free of charge;
- it should ensure access to legal services for people of all income levels, including low and middle income people;
- it should not be cost-prohibitive from a government viewpoint; and,
- it should ensure a high quality of legal service as well as competence and integrity among all legal professionals.
In Part 2 of this series, I will examine how the medical profession has attempted to address similar challenges in access to health services. In particular, I will explore the emergence of professionally regulated nursing in the early 20th century and other fragmentations of the medical profession. Using this as a template, I will posit some analogous proposals to fragment the legal profession into a number of specialized jobs with specialized training, regulation, and oversight commensurate to job responsibilities.
In Part 3, I will explore some specific examples of how the fragmentation of the legal profession is already taking place, posit some possibilities for new legal qualifications, and address some possible objections to my proposals (including a possible concern about “watering down” the level of competence and integrity required of legal professionals).
Access to Legal Services: Lessons from the Medical Profession
This post is Part 1 in a three-part series. Links to the other portions are found below.
Want Some Free Legal Advice?
It’s something many lawyers complain about – being ambushed by friends and family with legal problems and expecting an instant answer. Blogging lawyers also face this dilemma from their general readership.
Both are likely to suggest that the person come to their office for a more in-depth consultation. That, and the legal problem thrown in your face is blocking the view on the gorgeous beach.
Now there’s an online site that you can divert these people to for legal advice, or to be more precise, legal information. AdviceScene is staffed by qualified lawyers and judges (yes, judges) who answer questions from the general public.
Although they are careful to refer people to lawyers when necessary as well, they can give the public a few tips on legal principles and how the system works.
As law students we have a similar challenge of not wanting to provide legal advice, and also behave overly cautious in not misrepresenting ourselves as lawyers. Nancy Kinney, founder of AdviceScene, reached out to us and we were more than happy to refer the many inquiries we get over to some qualified professionals.
But lawyers should be eager to join a project like this as well. The site is a great way for lawyers to showcase their talent and build on their client base, especially during these uncertain times. In addition to the free profile on the forum, lawyers can be listed in the site’s directory.
It’s still a young project, but one that can succeed if Canadian lawyers are interested in helping to empower the general public with legal information.
Just save your Q&A until you get back from your office, and not on the beach, or you’ll defeat the whole purpose.
Update
Terry Romaniuk, a Public Legal Education Staff Lawyer with Alberta Law Line, a sub division of Legal Aid Alberta, brought to my attention that they have been offering 4 hours of free legal advice to all qualified Albertans since 2004.
They also have have 3 former members of Alberta’s judiciary on their 27 member staff.
Cross-posted from Slaw
German Multinational Loses Teapot Battle
Have a cuppa.
First posted on Commercial Law International on April 3, 2009.
It is an understatement to say that the English take their tea very seriously. And it is little wonder why a small teashop in Surrey, England, even when faced with potential financial ruin, would not back down from a much larger German multinational. This is a tale about tea better yet teapots; a David and a Goliath; and lest I forget the rights to uses a logo.
Not long after the Tea Box opened, providing an up-market alternative to the run of the mill ‘main street’ coffee shop, it was faced with a legal challenge from a Duesseldorf based company. It would seem Teekanne, which happens to mean teapot in German, took exception to the hand painted teapot logo that Tea Box was using. Teekanne claimed that it was too similar to its own logo and could cause customer confusion.
What Teekanne wasn’t counting on – I guess they expected such a small time operation to be impressed by its sized and resources and cave in but this is the UK and we are talking a bout tea but I digress. What they were not counting on was that one of the UK’s leading intellectual property firms coming to the rescue of Tea Box. Withers & Rogers LLP took on the case pro bono- for my none legal people out there this means free. This is good to see, as a profession we need more of this. The words pro bono for lawyers as become all too often associated with criminal, civil rights, family or judicial review matters, please don’t read this as a dig at the lawyer who perform such work, they are doing a great community service, however, the community can also be served when commercial law firms take on such cases.
And now back to the story.
After receiving early indications from the UK Intellectual Property Office that it would likely rule in favour of Tea Box, Teekanne promptly withdrew, great for Tea Box but not so great for Teekanne. Not did it lose money from mounting this legal challenge but it also had the effect of improving the market awareness of the Tea Box brand. You could even say that for Tea Box Commercial Awareness Is Global – hahahhahah, sorry about the cheesy plug for the site but hey I am a future lawyer trying to carve out a niche for my self.
Who Says Lawyers Are Rats?
The Globe & Mail recently reported on a recurring event that flies in the face of the popular stereotype of lawyers 
being vile creatures beyond salvation. The Lawyers Feed the Hungry program has been providing several free meals per week to the hungry for ten years now and there’s no end in sight despite a slowing economy.
Since its inception, the event has been funded by donations, operated by lawyers, judges and law students, and located in the cafeteria of the Law Society of Upper Canada.
So this event is nothing new, but the pièce de résistance of this delectable deed has to be the upcoming Christmas dinner, including a savory serving of filet mignon, purchased personally by Martin Teplitsky, the event’s founder (no more alliterations, I promise).
As if the deed wasn’t kind enough, Teplitsky will also be giving ten dollars of his own money to each of the 600 expected guests. The Globe & Mail quoted him as saying that people who have nothing would be grateful “just having ten bucks to buy cigarettes or a bottle of wine.”
I think that’s the fact that gets me the most. It runs completely contrary to the most famous cop out so many of us use to justify not giving money to the poor: “They’re just going to blow it on cigarettes and booze.”
Teplitsky clearly recognizes that people who are down on their luck have just as much of a right to some vices as the rest of us. And I don’t know about everyone else, but if I was dependent on charity for Christmas dinner, I’d probably want a little wine myself. I’m also willing to bet that the proportion of lawyers plagued by alcoholism is probably close to that of the homeless, so be wary of lawyers asking for loans.
Speaking of wine, this Christmas dinner I’ll be raising my glass to all of the good folks involved in the program, working hard to help the hard up. Here’s to another ten years.
If you’re interested in making a donation, you can send a cheque or questions/comments to:
The Law Society Foundation
130 Queen Street West
Toronto, ON, M5H 2N6
lsf@lsuc.on.ca
Med Students Think They’re Isolated? Hah, Wimps!
A study a couple months ago indicated that medical students are socially segregated from each other.
The reasons included:
- High workloads
- school located outside the main campus
- High numbers of contact hours, outside the university
This seems to indicate that contact, inside the university, would alleviate the problem. They should learn a lesson from law students and quickly discover otherwise.
The drawbacks of this supposed isolation included:
- Being a member of a cohesive in-group can increase an individuals feelings of self-worth and lead to perceived superiority over, and prejudice and discrimination towards, members of out-groups
- It lessens integration with clients, who come from a broad section of society
- They usually have to work with other professionals
- Communication is an important skill for dealing with members of the out-group
The sense of superiority in law often leads to a self-selection of dealing with certain members of society, which is probably why pro bono goes the wayside far too quickly.
The CBC reported recently that we should improve medical students’ learning environment by providing sleep breaks. Well, law firms already encountered and overcome that hurdle.
As for working with others and communication, well, all of that is overrated by too many law firms.
Remember this?
Experienced lawyers work with clients. Young lawyers work with paper. You like working with paper, right?
Why You Should Apply to Law School
What I love best about the law is the ability to challenge and break down stereotypes.
For example, Canadians generally overestimate the number of minorities that have committed a crime, which is usually lower than the general population.
However, the 1995 Report of the Commission on Systemic Racism in the Ontario Criminal Justice System stated, it is no secret that “black accused, for example, are more often held without bail”.
The need for advocates to fight this subtle yet pervasive form of discrimination is pressing indeed.
Maybe Criminal law isn’t your thing.
A recent survey indicated that the average salary in Canada was just over $36,000.
The jobs that required a high school education a generation ago now require a bachelor’s degree. The opportunities simply are just not there for recent university graduates without professional and advanced degrees.
Lawyers and legal professionals ranked the highest out of all careers in Canada, with an average of $123,000 for lawyers and $178,053 for judges. Only specialist physicians made slightly more.
But medical schools in Canada are swarmed with applications. There are only 2,400 positions a year across Canada, but there has been a 20% increase in applications recently. Only 0.5% of applicants to McMaster University and 6% at UWO are accepted.
If you have a science background and thought that your only alternative to med school was graduate research, you’re wrong. One of the booming areas of law is intellectual property, and lawyers in this field almost always have a science or engineering background before law school.
That doesn’t mean getting into law school is easy though. You do need a strong undergraduate GPA, and have to worry about this pesky test called the LSAT.
But it’s worth it. A legal career allows you to pursue professional goals while maintaining an advocacy role within society.
And because the law affects nearly everything we do, there are areas of law that are of interest to everyone.
Fred Rodell, a former professor at Yale, wrote back in 1939, in a book entitled “Woe unto you lawyers,”
It is the lawyers who run our civilization for us – our governments, our business, our private lives. Most legislators are lawyers; they make our laws. Most presidents, governors, commissioners, along with their advisers and brain-trusters are lawyers; they administer our laws. All the judges are lawyers; they interpret and enforce our laws. There is no separation of powers where the lawyers are concerned. There is only a concentration of all government power – in the lawyers. As the schoolboy put it, ours is “a government of lawyers, not of men.”
It is not the businessmen, no matter how big, who run our economic world. Again it is the lawyers, the lawyers who “advise” and direct every time a company is formed, every time a bond or a share of stock is issued, almost every time material is to be bought or goods to be sold, every time a deal is made. The whole elaborate structure of industry and finance is a lawyer-made house. We all live in it, but the lawyers run it.
And in our private lives, we cannot buy a home or rent an apartment, we cannot get married or try to get divorced, we cannot die and leave our property to our children without calling on the lawyers to guide us. To guide us, incidentally, through a maze of confusing gestures and formalities that lawyers have created.
A legal career is not only the smart move in tomorrow’s volatile markets, it’s the right one.
The deadline for law school applications in Ontario is Nov. 3, just over a month from now. You still have time to prepare your application and get it in.
Based on a speech given at the University of Western Ontario. Acknowledgment is provided to Craig Cameron of the Black Law Students Association, Ugbad Farah of the African Students Association, and Carly McLarty of the Caribbean Students Organization for hosting the talks.
Success Should not come at Expense of Social Justice
York University President Emeritus Harry Arthurs told graduands at Spring Convocation ceremonies last June,
…if you have abilities, if you have resources and opportunities, you also have an obligation to use them on behalf of people who don’t.
Arthurs, a renowned labour law scholar, graduated with his law degree from the University of Toronto in 1958.
A video of his speech is available here.
Podcast Feeds
Awards
Partners
- Advertise Here
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
The Whiners - The Elusive Fish Creative Services
- Mesothelioma Lawyer
- no win no fee solicitors
- Compensation Claims
- personal injury lawyer toronto
- no win no fee
- Pardons Canada Accident Claim Medical Negligence Whiplash Claim
- No win No fee Claims
- Venue
-
-
-
-
-
-
-
-
-
-
-
-
