RSS FeedOccupy Ties to former Bay Street Lawyer
The Occupy movement comes from all aspects of Canadian society, including those with close family ties to the wealthy elite. Jennifer Yang of the Toronto Star provides this backgrounder on Antonin Yvon Mongeau,
He chose the pseudonym “Smith,” the most common of English monikers. It is a name for regular folk and the plebian masses; it is a name for the 99 per cent.
In October, a burly, curly-haired activist calling himself Antonin Smith moved into St. James Park, the nexus of the Occupy Toronto movement.
Over the next two months, Smith – or “Agent Smith,” as he sometimes referred to himself – became one of the most controversial and outspoken citizens of Occupy Toronto, making himself a de facto spokesperson for a movement that did not want one.
Like many occupiers, he used a pseudonym. But to change one’s name is to obscure the past.
One of the more interesting parts of Mongeau’s past is that he is the adopted son of David Charles Mongeau, a University of Western Ontario law graduate who worked at Goodman’s until joining Four Seasons Hotels as an executive, and then vice chairman of CIBC World Markets. David Mongeau eventually moved to London, England and created an investment bank called Avington Financial, focusing on hospitality deals and luxury hotels.
There’s not much luxury in the parks and camps of Occupy Toronto. Antonin Mongeau was kicked out of his parent’s Richmond Hill house at the age of 17 and experienced homelessness, which helped foster his support for the Occupy movement,
Mongeau says his experience as a homeless youth “changed my whole world view.” Several years later at St. James Park, some occupiers would notice Mongeau’s particular affinity for the homeless.
“When you’ve seen both sides of the coin you realize two things: we can’t keep going like this and it’s going to be hard,” Mongeau says. “Those with power and money will not relinquish it kindly.”
The full interview, which was conducted exclusively by email, follows below:
Agenda: Access to Justice
Justice Gloria Epstein, Dean Lorne Sossin, Matt Cohen, Judith McCormick, and OBA President Lee Akazaki on The Agenda with Steve Paikin:
SCC on Funding Orders
Funding orders must be exceptional, says the Supreme Court:
‘For the first time the Supreme Court has ruled that superior courts are empowered to order governments to fund public interest litigation before statutory courts and tribunals. [...]
Brodsky suggested that “if governments don’t want the courts to attempt to deal with the problems that have been created by cuts to access-to-justice programs, then governments need to address the gaps themselves.”
She told The Lawyers Weekly “the possibility of obtaining an interim cost award can never replace the Court Challenges Program, or civil legal aid programs, that have been decimated in places like B.C. The limitations of the case-by-case cost-seeking approach are underscored by the decision in Caron in that the court confirmed that interim cost awards must be ‘highly exceptional.’ However, in reality, the circumstances in which the absence of public funding works a serious injustice are not highly exceptional. Such circumstances have become very ordinary in Canada.”’
Clinical Legal Education
In the Conference on Canadian Clinical Legal Education conducted by Western Law Professor and Director of Community Legal Services, Douglas Ferguson, that took place on 22nd and 23rd of October 2010, the emphasis was on ways to prepare the law students for the professional world through establishing a more extensive and perhaps mandatory clinical program. In a private discussion that I had with Professor Ferguson, he expressed concern over the fact that compared with many other professional students such as medical and dental, who rigorously undergo a pattern of practical education, law students are graduating rather unprepared for the real world.
Recently, the Law School Survey of Students Engagement (LSSSE) released the reports of its 2010 survey that gathered information from students of 77 Canadian and American law schools on how they felt about the quality of education they were getting. The results of this survey reflect Professor Ferguson’s concern. About half of the students felt that they were not inadequately prepared for the practice. “Predictably perhaps, the study found that students with practical experience in clinics or pro bono work were more likely than other students to report that their law schools provided adequate professional preparation…” Other factors that were found to have a positive impact on the overall development of students included interaction with the faculty. More specifically the report outlines that engaging in discussions with professors regarding the assignments, talking about job search activities or even talking to them through email, result into a more positive impact on the professional development of law students.
National Listserv for Social Justice Law Students
Are you a progressive law student in Canada? Join the Justice League!
Justice League-Canada is a nationwide listserv for progressive law students, articling students, and new calls. Its purpose is to create a national grassroots network, in which we can foster a supportive community of like-minded peers. One anticipated outcome of this is that by sharing resources and energy, we can do sustained cross-national work in our capacities as law students, advocates, and lawyers. Additionally, this space can be used to highlight job opportunities outside the usual big firm market, as well as to hone academic interests and assist local community organisations and campaigns.
If you’d like to join, please email justiceleaguecanada@gmail.com with your name and affiliation.
We’re also looking for help with French translation, so apologies for how heavily Anglo this callout currently is, but do email us/join the group if you can assist with addressing that bias.
UWO Law Welcomes AIDWYC @ Western
AIDWYC. Does that mean anything to you?
I, Ryan Venables, am very please to announce that thanks to Jonathan Thoburn and Lisa Lutwak, a couple of very keen and persistent (that’s a good thing) 1L law students, that UWO law students are now going to have the opportunity to be reviewing cases in association with AIDWYC.
I think this is a perfect time to bring this story forward considering the recent news of the acquittal of Ivan Henry, who spent 26 years in a B.C. prison for a series of sexual assaults that he did not commit.
Don’t know AIDWYC? Well, keep reading, and soon you will. Here’s how this great partnership has come to be.
As the President for the Criminal Law Student’s Association this year, I was contacted by Jonathan, an incoming 1L, who was eager in starting up AIDWYC under the umbrella of the CLSA. He had already contacted the administration and was given the green light and it was suggested to him that while in its infancy, that AIDWYC @ Western be under the umbrella of the CLSA.
Since I had never heard of AIDWYC I had to do some digging. Here is what I found out. From the AIDWYC Website:
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AIDWYC is a non-profit organization that has developed a strong reputation as an advocate for individuals who have been wrongly convicted.
AIDWYC’s primary mandate is to review and support claims of innocence in homicide cases.
However, because individual exonerations do not eliminate the conditions which foster these miscarriages of justice, AIDWYC is also dedicated to addressing the causes of wrongful conviction by:
- Making representations to governments on reforms to the legal system
- Raising public awareness about miscarriages of justice
- Participating in public inquiries related to wrongful convictions
- Intervening in legal cases which seek to rectify miscarriages of justice
There is no system in place at present in Canada for an independent review of claims of wrongful conviction. AIDWYC fills this gap, attracting some of the top legal experts in Ontario to identify these cases and, where warranted, prepare an application for ministerial review to the Criminal Conviction Review Group of the Federal Department of Justice, known as a Criminal Code Section 696.1 application.
AIDWYC’s office is located in Toronto and much of our work is done in Ontario. However, we have dedicated volunteers throughout Canada and in the United States. AIDWYC welcomes applications from across the country. AIDWYC is currently reviewing over sixty claims of innocence and actively pursuing more than 40 cases.
All Canadian citizens stand to benefit from AIDWYC’s efforts to free those who have been wrongly convicted and to reform the justice system wrongfutem of justice, but everyduce or prevent wrongful convictions in the future. Canada has an excellent sysand safeguard its integrity. Wrongful convictions are not easily corrected. The resistance to AIDWYC’s efforts is formidable and the correction of miscarriages of justice is always hard-won.
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Successes? Robert Baltovich; James Drisk; Anthony Hanemaayer; Clayton Johnson; David Milgaard; Guy Paul Morin; William Mullins-Johnson; Gregory Parsons; Romeo Phillion; Sherry Sherrett-Robinson; Thomas Sophonow; Steven Truscott; Kyle Unger; Erin Walsh.
Fast forward to today. AIDWYC @ Western is in the final stages of picking volunteers who will be assigned cases, reviewing them, and working hard to have the wrongfully convicted freed. It is hoped that as this project grows it will be able to come out from underneath the support of the CLSA and to form a group at Western Law akin to Pro Bono Student’s Canada.
Not only does this give fledgling lawyers a great way to get involved with a great cause, it will also give them practical experience that law student’s seem to lack coming out of school.
I personally look forward to seeing this great opportunity for students grow here at Western.
Lawyers Top Kilimanjaro
Here’s a follow-up from our podcast interview with Christopher Bredt of Borden, Ladner, Gervais LLP, who climbed Mt. Kilimanjaro with other lawyers from his firm for charity.
Sean Weir, BLG’s National Managing Partner referred to the trek as, “one of the most difficult challenges he has faced”.
The team of volunteer lawyers successfully climbed to the top of Mt. Kilimanjaro and raised more than $176,000 to support CODE’s Summit of Literacy. Combined with CIDA’s 3:1 matching grant, that means more than $700,000 will be donated to support children’s literacy programs in Africa.
Shelley Munro, Sean Weir, Michael Smith and Chris Bredt of Borden, Ladner, Gervais LLP at the top of Mount Kilimanjaro
Podcast: Chris Bredt and BLG Climbing a Mountain (Episode 25)
In this podcast Omar Ha-Redeye speaks to Christopher Bredt of Borden, Ladner, Gervais LLP about his plans to clime Mt. Kilimanjaro, the tallest mountain in Africa.
Bredt will be accompanied by partners in his firm, Sean Weir, Shelley Munro, William Carter and Michael Smith.
The climb is a fundraiser for the Canadian Organization for Development through Education (CODE). You can donate to the climbers directly through the CODE climbers page.
For more on CODE, see the video below.
Devin Johnston, who has been running the podcasts here recently, is now articling. Current and incoming students interested in taking over these responsibilities can contact us directly.
The 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.
