Independent paralegals signal major invasions of lawyers’ markets | Ken Chasse
Friday, June 14, 2019 @ 11:10 AM | By Ken Chasse
The LSO has regulated the paralegal profession for the last 10 years. The Bonkalo Report recommended that Ontario’s family law paralegals be able to operate independently of lawyers’ supervision.
That has been the most contentious issue. The justification used is that independent paralegals would provide more competition in bringing down lawyers’ fees so as to have greater impact upon the unaffordable legal services problem— which is that middle- and lower-income people (the majority of society) can no longer afford lawyers’ services that are more complex than simple, routine legal services.
It is referred to as the “access to justice problem,” or, the A2J problem. Nevertheless, there is no sign yet of such “paralegal impact.” The victims of the A2J problem continue to grow.
I expect that law societies will increasingly use this device so as to appear to be providing an adequate response to the A2J problem. But it means carving away parts of lawyers’ markets to give such parts to other professionals. It’s comparatively easy for the law societies to do.
However, because law societies are managed by practising lawyers (referred to as “benchers”), elected by the other lawyer-members of each law society, there is little that law societies can do that will provide an effective response to the A2J problem.
Whatever a bencher does must always guarantee that there is enough time to be a good lawyer. Benchers are not career law society managers; they are career practising lawyers. Their law offices are where they earn their living, make their reputations, build their law practices and can be disciplined by their law societies if they neglect their clients. But there are no comparable pressures upon them of equal strength to be good benchers. Therefore, benchers best avoid undertaking significant innovations.
One must always assume that they may provide unanticipated negative consequences during their developmental process of getting such innovations successfully in operation. That would put in jeopardy having enough time to be a good lawyer. As a result, law societies and their benchers haven’t changed their management structure, or what they do, and their institutional culture, since they were created 200 years ago. That is because there has been no innovation because there has been no pressure to innovate.
And so it is that because they are very diligent in preserving what they have always been and do, law societies can do very little in the face of major problems such as the A2J problem. Therefore, we must expect that they will create more such specialized paralegals. Not only is it a relatively easy thing to do, it also provides benchers complete control over the time that they spend doing it.
But is that enough? The A2J problem means that, that huge legal services market for the majority remains unserviced by lawyers. But completely unserviced? Not for long. In the U.S., commercial producers of legal services, such as LegalZoom and RocketLawyer now have millions of customers, i.e., they are rapidly replacing the general practitioner and small, unspecialized law office. And they have started the same process here in Canada. Law societies in the U.S. have had very little success protecting lawyers’ markets by way of prosecutions of non-lawyers for the unauthorized practice of law (UPL prosecutions). Also, there are many small startups that provide automated legal services of various types (called “apps”).
And there is a third major threat — machine intelligence (a.k.a., artificial intelligence). Automation has replaced professional and technical workers in many industries. It is already providing legal services of some types and will replace more as its software grows in sophistication. However, lawyers in the big law firms and those having highly specialized law practices will be better able to harness machine intelligence to enhance human intelligence rather than replace it.
It appears now that the legal profession will shrink drastically (and its law societies with it) by losing the general practitioner and lawyers in small, unspecialized law practices, they being more than half the membership of a law society, and they being the lawyers who service middle- and lower-income people. Lawyers will become a profession of specialists, having little connection with that majority of society. What should we and our law societies be doing now to again adequately serve the population?
A deeper understanding can be obtained from the following report and articles:
- Family Legal Services Review, by Justice Annemarie E. Bonkalo;
- The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services, by John O. McGinnis and Russell G. Pearce;
- Mobile and Web-based Legal Apps: Opportunities, Risks and Information Gaps by Suzanne Bouclin, Jena McGill and Amy Salyzyn, and
- Access to Justice — Unaffordable Legal Services Concepts and Solutions, by Ken Chasse.
For 40 years, starting in 1966, Ken Chasse was a criminal lawyer in Ontario and B.C., serving as both Crown prosecutor and defence counsel. He taught law in both provinces and conducted a national consultation process for the federal Department of Justice concerning a proposal to replace the Canada Evidence Act with an evidence code that was a Canadian version of the U.S. Federal Rules of Evidence. Since January 2007, he has concentrated on developing “records management law” and among Chasse's most important accomplishments was the creation of LAO LAW at Legal Aid Ontario. E-mail him at email@example.com.
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