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Closing gap in legal services is major challenge, Cromwell warns

Thursday, October 20, 2016 @ 8:00 PM | By Cristin Schmitz

The legal profession must urgently facilitate — rather than impede — regulatory reforms that could alleviate the public’s vast unmet needs for affordable legal services, former Supreme Court Justice Thomas Cromwell says.

“We are not doing nearly enough to close the legal services gap,” argues Cromwell, who retired from the top court Sept. 1.

“Broadening accessibility to legal information, advice and representation, in my respectful view, should be the No. 1 priority for the legal profession in Canada,” he told lawyers and judges Oct. 7 attending the closing address of a three-day conference on the economics of civil justice, organized by the Canadian Institute for the Administration of Justice (CIAJ).

“The point is simply that the profession as a whole needs to redouble its efforts to improve access to legal services and to do so with a much greater sense of urgency than I have seen to date,” said Cromwell, who has chaired the national Action Committee on Access to Justice in Civil and Family Matters for the past eight years.

“This is particularly true, because I see it, with respect to the governing bodies of the profession,” he stressed, alluding to regulatory barriers to multidisciplinary practices, non-lawyer ownership of law firms and other alternative business structures (ABS) that proponents contend would help solve the nationwide crisis in legal services affordability. (Personal injury lawyers in Ontario were able to successfully sway the law society election this year to have the new benchers shelve ABS for several years.)

Notably Cromwell agreed with the thesis of the CIAJ conference’s keynote speaker, professor Gillian Hadfield, that the problem of inadequate access to legal services is not fundamentally one of Canadians’ poverty, or a lack of commitment by lawyers to pro bono work, or even of insufficient government funding — rather it is, at its root, a problem of regulation.

As such “it follows that regulatory bodies must reconsider their regulatory work and the goals driving it,” he admonished. “In particular, this transformation will require making access to legal services one of the key goals and priorities of regulation, as well as a driver of regulatory change. The regulators may well need legislative change to pursue this agenda. But the expansion of legal services for the public should be a primary objective and a central outcome of legal services regulatory reform.”

Regulators should not delay, he advised. “We need a lot more action. Some governing bodies are reluctant to recognize the relationship between professional regulation and access to professional services. Others grasp this relationship, but need to develop its implications with a much greater sense of urgency and priority.”

Cromwell echoed the views of other conference speakers that legal aid and pro bono services are only part — and can never be total — solutions to insufficient access to justice. He “completely” endorsed the point made by Hadfield and University of Toronto law and economics professor Michael Trebilcock at the conference, that the legal profession must address the cost of legal services — which creates the gap between people’s need for those services and their ability to obtain them.

“This is not…about forcing, or even trying to convince, lawyers to charge less,” Cromwell emphasized. “It is about finding ways to encourage the delivery of legal services in ways that make sense economically to both lawyers and clients while protecting the public interest in high quality and ethical legal services. It is past time, as I see it, that we ought to have started giving these issues the priority that they deserve.”

Cromwell acknowledged multiple challenges in creating a coherent civil justice reform strategy. One problem is that most justice system players find it hard to do the broad “systems thinking” needed to address their systemic problems and thus avoid narrowly conceived measures — or measures which fail to take into account their overall, and often unintended, impact on other parts of the justice system.

Moreover leadership in the fragmented civil justice system is diffuse, “which is a polite way of saying that no one is really in charge,” Cromwell noted. Important parts of the system have considerable independence from the other parts: judges are independent decision-makers; lawyers are independent advocates; and governments have the unique responsibility for the public purse strings.

“The need for an overall strategy applies not only to the measures to be proposed, but also to the way that the people who can implement them will be convinced to do so, and so when we fail to think strategically, we undervalue civil justice,” he observed.

Yet there are signs a more strategic approach is being embraced, he remarked. Following recommendations of the action committee in 2013, most jurisdictions established broadly based access-to-justice groups aimed at promoting a more co-operative and collaborative approach to civil justice reform and to ensuring the proposed solutions make sense in the overall scheme of things.

The action committee also set nine “Justice Development Goals” which it hopes will be rallying points and unifying themes in civil justice reform from coast to coast.

These include: refocusing the justice system to address everyday legal problems; making essential legal services available to everyone; and making courts and tribunals fully accessible “multi-service centres” for public dispute resolution.

“The goals, I hope, will provide some broad, overall strategic direction and help all of the actors see how their work — work in many different areas — relates to the work of others,” Cromwell said.

Funding civil justice appropriately is critical, and fighting for adequate funds should remain a priority for the legal profession, Cromwell remarked. But he added he is also not convinced that a sudden, large influx of funds would solve all, or perhaps even most, of the justice system’s problems. A big priority for cash-strapped governments should be to devote the time and resources to enable innovation in the system “to permit the sort of transformation that will end up making the system more efficient, more effective and more just,” he advised.

Finally, the public must be mobilized in support of fundamental change of the civil justice system. “We need a civil justice movement,” and it is the justice system players that ought to be leading the way, he stressed. “And while I am not suggesting, at least yet, that we camp out in parks or picket, I am suggesting that we need to engage the public with both the need for, and the possibility of, fundamental civil justice reform.”

He explained, “while involving members of the public in designing and implementing reforms is one aspect of public engagement — and certainly an important one — I am speaking here about a much broader form of public engagement. I am speaking of the need to have broad public support for fundamental systemic reform of the civil justice system. If there is to be the political will to bring about these changes and the resources to make it possible to do so, then civil justice reform needs to have a lot more public support than it currently does.”

Cromwell said the access committee has come to believe that an important factor in the “implementation gap” which exists between the many good ideas for civil justice reform and action “is lack of public interest and support.”

However at least some conditions for success are either present, or within reach, he suggested. There is already “an atmosphere ripe for change.” Research shows the issue of access to justice is important to many people. Moreover, there are large networks of people committed to civil justice reform, as evidenced by the action committee itself, whose members represent thousands of people. Cromwell said the means do exist to show the public how the apparently “private grievances” of those who don’t have access to justice are in fact the community’s shared social problem. But social movement scholarship also suggests that people need a means by which they can engage in collective action.

“While we’re not generally providing those means, there is a great potential in the broad and wide networks of people committed to civil justice throughout Canada,” he observed.