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:

1. it only affects the distribution, and not the capacity, of legal services;
2. it is difficult and costly to effect changes in distribution of services; and,
3. 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.

• Part 1: Introduction
• Part 2: History of Nursing
• Part 3: Proposals and Conclusions