The High Cost of Legal Services

The Chief Justice Lance S.G. Finch, of British Columbia’s Supreme Court, spoke at a meeting of that Province’s branch of the Canadian Bar Association.

His speech discussed the high cost of legal services, and the implications of that on the ability of the legal profession to remain self-governing into the future.

The premise of the talk was that legal fees are out of the reach of the average consumer, and have been allowed to remain that way artificially, largely because of the way that the current system of lawyer education and licensing creates barriers to entry into the business of legal advocacy and advice.

Is that really the problem?

The Chief Justice admits that he does not have the solution. He does throw out a few suggestions, however

[44] I am frank to admit that I do not have a clear answer.  However, I suggest a more balanced and open market for legal services may be a starting point.  Why not admit more applicants to law schools?  Why not qualify more lawyers to practice? Why not reduce the articling period from twelve months to six months?  A six month requirement for articles would double the number of places available.  Why not eliminate the articling requirement for those who have served as law clerks?  Why not make the Professional Legal Training Program two weeks in length rather than the present ten weeks.  Adequate quality control can still be provided with an appropriate bar admission examination, and requirements for continuing professional development.

[45] In addition, perhaps the criteria for pro bono legal services could be expanded so that more persons would qualify for free services.  More radical innovations might include provision of free civil legal aid clinics, paid for and operated by the legal profession itself and, the provision of civil legal aid counsel at the profession’s expense for certain kinds of cases.  There are no doubt many other possible solutions.

Undoubtedly, Chief Justice Finch is correct in that the lack of access to low cost legal advice does make the legal profession an easy target for the enterprising politician looking to score points with an electorate that already holds lawyers in fairly low esteem.

That said, I’m not sure the public is well served by a legal profession that lowers its standards for admission into law school, and then allows its members to carry a full license without the guided training that articles of clerkship provides.

Lawyers are expensive. That is something that has been true for hundreds of years. In that time, society has become more complex; not less.

Serious legal problems occupy a significant amount of a person’s time, and carry serious implications for a person’s financial and personal security. Dealing with those problems takes specialized knowledge and experience, and specialized knowledge and experience comes at a high price.

That the price is high is not a sufficient reason to remove the safeguards that prevent people who would cut corners on the quality of their knowledge and experience from inflicting that lack of knowledge and experience on a public that cannot adequately judge the quality of the service to be provided until it has already been rendered.

If there is a real solution to the problem of making legal services more accessible, it probably lies in continuing to find ways to streamline litigation. That is something lawyers have been doing for many years.

Lawyers in most Canadian jurisdictions have been making far greater use of mediation as a means of bridging the gap between opposing sides to a conflict.

The Rules of Court in many Canadian jurisdictions have been modified to encourage the profession to better apply the principle that the pre-trial procedures in litigation should be proportional to the complexity of the dispute and the amounts that are at stake. Recent years have seen the courts increase the monetary jurisdiction for small claims courts, as well as the introduction of streamlined procedures for disputes involving less than $100,000.

In the end, the most effective means of reducing the cost of litigation will likely be in fostering a professional culture better understands the problem that a client must solve, and better channels its specialized knowledge and experience toward solving that problem.

James T. Parsons wrote about this as a training issue for lawyers in an article published in March 2010 for Intellectual Entrepreneurship, a cross-disciplinary consortium at the University of Texas.

Lawyer training, to date, has largely involved teaching law students to spot the legal issues in a particular fact scenario. While this is important and valuable, perhaps it should be approached with a better understanding of probabilities, and decision theory, so that working with the client, both can understand the real risks in a given course of action. That would then inform the conduct of the file. The upshot is a more focussed application of the client’s resources, and the lawyer’s efforts.

Clearly, the legal landscape is changing, and lawyers will have to adapt. In adapting, however, we should make certain to protect and preserve the quality and reliability of the service we offer, even as we try to make that service more accessible.