End lawyers' monopoly, competition needed, says expert

  • April 28, 2019

This article was originally published in The Vancouver Sun on April 28, 2019

Canadian legal guru Gillian Hadfield says it is time to end self-regulation by lawyers, as well as their monopoly on providing legal services, because they have made such a hash of it.

After extensive research and long experience, she concluded it is well past time to dismantle the regulatory barriers that make legal help for ordinary people too expensive and inaccessible.

“Until the public starts to thump on the table and say, ‘Are you kidding me?,’ things are not going to change,” she conceded.

“Until we get the public really understanding that what they are being told is outrageous — that we’ve built this complicated legal world and you have to hire a lawyer at 200-300 bucks an hour to manage that legal world. It’s indefensible. It is an outrage, and we need real outrage. This should be unacceptable.”

Hadfield earned a degree from Stanford Law School and PhD in economics from Stanford University before clerking for Chief Judge Patricia Wald on the U.S. Court of Appeals, D.C. Circuit.

She has been a visiting professor at Harvard, Chicago, Columbia, Toronto, NYU, and Hastings law schools, a fellow of the Center for Advanced Study in the Behavioral Sciences at Stanford, and a National Fellow at the Hoover Institution.

Serving as an adviser to The Hague Institute for the Innovation of LawLegalZoom and other legal tech startups, she was appointed in 2017 to the American Bar Association’s Commission on the Future of Legal Education and the World Justice Project’s Research Consortium.

After a decade of peripatetic work, Hadfield has returned to become a professor of law and professor of strategic management at the University of Toronto and a faculty affiliate at the Vector Institute for Artificial Intelligence. It is perfect time given the growing clamour over legal-aid and the need for fundamental legal reform.

In Ontario, the government this month chopped $133 million from the legal aid budget and said it will cut more — axing services for the poor and most vulnerable.

Legal aid lawyers called it catastrophic and unprecedented.

But it happened in B.C. in 2002. Funding was never restored, and the profession has done little as the sore festered for a generation.

A threatened strike by B.C. legal-aid lawyers this month was averted by a band-aid, interim $7 million while they and Attorney-General David Eby seek a way forward.

Governments, however, are moving to administrative solutions to reduce legal costs for drunk driving, small claims and minor insurance matters because the courts have become too expensive and clotted. Ordinary folk are just screwed.

“Legal aid is not the solution,” Hadfield maintained. “But slashing legal aid is not what I’m proposing. Bad idea.”

The fact is that public funding will not meet the demand for legal services. The scale is such that any reasonable amount of government funding, legal aid or pro bono work always will be only a partial solution for those who cannot afford a lawyer.

As a result, the number of self-represented trying to manage problems with housing, family, domestic violence, consumer credit and other challenges will continue to only mount.

There is no way to solve the access-to-justice crisis without changing the regulation of the practice of law, Hadfield said.

“No way,” she emphasized. “Any solution that makes a dent in the problem will also have to involve expanding the types of people and organizations that are authorized to provide legal help. Don’t get me wrong, increased funding for courts, legal aid and court-based support services is clearly needed. But I believe it is a major mistake for the legal profession to focus exclusively on how to solve the access problem with more money — public or charitable money — and volunteer pro bono efforts alone.”

The monopoly so assiduously defended by provincial law societies needs to be dissolved.

In the U.K., she pointed out, there was no rule that all legal work had to be done by somebody with a law degree and a valid bar licence.

“Anybody could give you advice, anybody could draft your documents, anybody draft your will,” Hadfield added. “The U.K. has a long history of allowing a wide variety of differently trained individuals and organizations to provide legal assistance — and they have opened up the market more in this century.”

Indeed, in many cases, people are better served by a non-lawyer organization that specializes in legal help — navigating housing or bankruptcy matters, for example — than they are by a solo lawyer with a general practice.

“The changes the U.K. made in the regulatory environment are essential, necessary,” Hadfield argued. “You can’t get to the world of less-expensive, more-healthful, more-accessible legal help without changing those regulations.”

The U.K. did not go far enough, she continued: “It didn’t move far enough away from the historical approaches and, to be honest, did not get it independent of oversight of lawyers.”

Medical care is a team sport, provided by a wide variety of medical professionals: nurses, radiologic technologists, pharmacists. The law should be too.

“Many of these providers are licensed and authorized to provide services directly to those with medical problems — they are not limited to working under the direct supervision of MDs,” Hadfield said. “Thank goodness. Because if they were, we’d be paying MD rates for every sore throat and backache.”

She blamed the profession for resisting change.

“Competition law has been a significant driver in the U.K. and Europe for these reforms,” Hadfield said.

“It’s a big problem that we allow the providers in a particular market to say, ‘We get to decide who participates in this market,’ which is the way it is now. That might have worked well in the 19th century and beginning of the 20th century, but it’s completely inappropriate in the 21st.”

The basic job of the courts — to provide reasoned, impartial dispute resolution — has been compromised and the length of time cases take comes at great cost for those who for years are in unresolved conflict.

“It’s the biggest ethical failing of the legal profession,” Hadfield stressed. “These are real people’s lives, and we in the profession are responsible for the great pain, loss and economic cost that the system imposes on them. It’s unacceptable. It’s hypocritical to for us to say I have to have a $300-an-hour lawyer to manage an ordinary life event — a divorce, the loss of a job, a conflict with neighbours, at school. … Just unacceptable.”

Hadfield will be speaking at the Pan Pacific Hotel Vancouver on May 14.