The lawyer paradox | Gabriel Latner

By Gabriel Latner

Law360 Canada (February 9, 2023, 10:44 AM EST) --
Gabriel Latner

“A census of lawyers may be regarded from two points of view. With law school enrolment at its highest peak in history, and showing little sign of abatement, the natural tendency is to measure all growth in terms of overcrowding of the profession. But, this is, after all, a purely negative approach. The profession as a whole has a responsibility to the public to see that the legal knowledge and skills of the lawyer are available to every private citizen for the protection and the enforcement of his rights . Until there are enough lawyers to meet all the needs of the general public, and until those lawyers are distributed in such a way as to be most readily accessible to fill the public's needs, the problems of overcrowding cannot properly be discussed .”

So wrote John Nelligan in 1950, commenting on a census which determined there were 8,059 practising lawyers (and Quebec notaries) in Canada.

In. Canada.

Currently, the Federation of Law Societies reports a total of 136,000 active lawyers, not including P.E.I. and Nunavut. The population of Canada at the end of 2022 was just under 39,300,000.

Over seven decades, the total population went up about 2.8 times, while the number of lawyers increased 17-fold.

In other words, the people-to-lawyer ratio fell from 1,700:1 to 290:1.

Are we feeling overcrowded? Has supply exceeded demand? Are we undercutting each other in a mad dash to steal the dwindling supply of clients?

Please. If anything, legal services are less attainable than ever before.

In another article, Nelligan reported on a wide survey of Canadian lawyers’ incomes in 1946-48. The result? The median income of a Canadian lawyer in 1948 was $4,403 ($57,350 adjusting for inflation), and the top 15 per cent had incomes in excess of $10,000 ($166,000).

According to the federal government, the median lawyer currently earns $116,000, and the top 10 per cent of lawyers earn at least $294,346. In Ontario, those numbers jump to $131,654 and $357,000.

In 2023 dollars, the median income has doubled. I don’t have a survey to prove it, but given the nature of the modern law firm, and the relationship of what clients pay for associate time, and what firms pay their associates, I strongly suspect the average billable hour has increased far more significantly. (If any of the firms that have been around since the 1950s would be willing to open their records and let me check, I’d be obliged.)

Thus the lawyer paradox. Class sizes too big? We need more teachers. Hospital wait times too long? Hire more doctors and nurses. Legal services unaffordable? We need more …

Oh. Right.

We tried that, didn’t we?

I have nothing to support this save intuition, but maybe the demand for lawyers is not the same as demand for other professionals like doctors and teachers and architects. Maybe it doesn’t scale with population.

Maybe it scales with the number of lawyers.

I have a theory: the demand for legal services in a community with only one lawyer is significantly less than half the demand in a community of the same size with two lawyers. I theorize further that the addition of a new lawyer to a single-lawyer community will quickly, if not instantly, create new demand, such that we can say that the demand for legal services is the consequence of the number of lawyers available in a community, and not the other way around.

It's like highways — you build them bigger to alleviate congestion, but they end up more crowded than ever because bigger roads incentivize driving.

Alice hires a lawyer to sue Bob. Now Bob needs a lawyer. ACME hires a lawyer to draft contracts, so its customers and vendors need lawyers to review them. Going back to the first example, Bob was really unhappy with his lawyer, and wants to sue for malpractice. But he can’t use Alice’s lawyer, so he needs a third. The government thinks ACME’s contracts are part of a tax evasion scheme, so it hires lawyers to review and prosecute. ACME hires tax specialists. And so on, and so on.

The only lawyer in a community can’t do much damage. It takes at least two lawyers to really convince people that we’re worth the money.

We are an overly legalized society. We have too many laws and regulations, and they are too complicated. While it’s always fun to blame the politicians, we share their guilt. Lawyers drafted the laws. Lawyers helped their clients lobby for these laws. Lawyers bring the “cutting edge” test cases seeking to push the boundaries of these laws — which usually results in even more laws.

Every time you see an absurd warning label, you know there were at least two lawyers responsible: the one who brought the original absurd lawsuit, and the lawyer subsequently hired to write the disclaimer.

Lawyers beget lawyers, and we’re one of those parasites that’s very good at making the host body think it’s better off with us.

Perhaps the key to making justice more accessible is counterintuitive: we need fewer lawyers. I’m not proposing a cull (as happy as I’d be to see certain members of the profession leave it), nor am I volunteering to be first in line to surrender my bar card.

But maybe, just maybe, instead of trying more supply-side solutions, we should look at directly modulating the demand for lawyers by simplifying the law and removing other impediments to self-representation.

Out of fairness, I’ll avoid some of the lowest-hanging fruit, like the fact that in the age of land registries you still need a lawyer to do a basic conveyancing, or the Statutory Power Procedure Act’s diktat that parties before administrative tribunals can only be represented by Law Society of Ontario licensees, and focus instead on my own practice area: civil litigation.

While I like to believe that my clients value my keen legal insight and ability to marshal the evidence, the truth is that in most cases the law is pretty straightforward, and the facts are the facts. What I really bring to the table is procedural knowledge.

If you’ve seen self-represented litigants (SRLs) at work, you’ll understand what I’m saying. Ignoring those who are obviously mentally ill, or caught up in pseudo-legal conspiracy theories, it is rarely the law that trips up the SRL. They know what it is they are claiming, or are being sued for, and in my experience can give as good a summary of the black-letter law as any KC. Google, CanLii, and all those legal blogs are a wonderful thing.

What gives SRLs trouble — and can make them troublesome to deal with — is their unfamiliarity with court procedure. Which, if you think about it, is entirely reasonable. The Rules of Civil Procedure are not straightforward. Nor are they reflective of procedural reality, augmented as they are by practice directions, notices to the profession, and what I like to call the “Procedural Talmud” — the unwritten rules that make the written rules work. (e.g. “One does not note a party in default unless they are three months late, and you have sent three follow-up emails.”)

Do you know where SRLs get along just fine? Small claims court, with its drastically simplified rules of procedure.

If you’ve never seen it, small claims court is something of a wonder, especially for a litigator. The plaintiff writes out what they think happened, and what they want from the court, attaching any evidence they have — combining statement of claim, affidavit and an affidavit of documents into one step. The defendant does the same thing. Then, there’s a pretrial hearing where a deputy judge encourages a settlement. No luck? Off to trial.

No discovery. No examinations. Motions are rare. It’s a system designed so that parties don’t need lawyers — except, of course, for corporations.

Corporate officers used to be allowed to represent their companies in small claims court — then the rules were changed, requiring “representatives” to be law society licensees. So now, if you have even a small dispute with a company — say a $10,000 employment case — the company will be represented by some kind of legal professional — which, following the Law of Multiplying Lawyers, means you’ll probably want one as well. But be warned, costs are capped at 15 per cent of the claim.

You have to ask why it is that officers are able to represent corporations in every other setting, except court, and whether that restriction benefits anyone other than lawyers and paralegals.

You also have to ask what the difference is between a $35,000 claim, and a $350,000 claim. The monetary jurisdiction of the small claims court is clearly arbitrary — so why shouldn’t its simplified rules apply to larger claims?

It cannot be a question of fairness. One cannot convincingly argue that it wouldn’t be “fair” to force plaintiffs bringing million-dollar claims to do so without the right to go through discovery — a right no litigant in small claims court has.  

Any argument along this line quickly devolves into a claim that the amount of justice you’re entitled to has something to with the amount in your bank account. For a small claims defendant, $35,000 can be more significant than $10,000,000 is to corporate defendant in a superior court.

Nor is “complexity” a convincing argument. Complexity and dollar value do not go hand in hand — just ask any family litigator.

Here’s another factoid to consider: roughly 10 per cent of small claims cases go to trial, as opposed to one per cent of “normal” cases. Do you think that’s because the litigants are 10 times less reasonable, or because they’re not being bled dry by legal fees?

For those who still think that the strict and convoluted Rules are necessary to protect parties in “complicated” cases, or where large amounts are at stake, let me direct your attention to the Commercial List, which exists to provide litigants in the most complicated and high-stakes cases with a flexible and common-sense approach that cuts down on procedural nonsense. I’ve never seen a client complain and ask to be transferred to the Civil List, where the Rules are more rigorously enforced.

And what about those alternative dispute resolution (ADR) clauses we keep pushing clients to include in their commercial contracts? Isn’t it because ADR is cheaper and faster? Don’t we like ADR precisely because it lets us opt out of the Rules?

If you look at state-enforced dispute resolution in pre-lawyer societies you notice a trend. The parties are brought before the decision maker, be it a jury, a panel or an individual magistrate. The plaintiff stands up and says what he wants, and why he thinks he should get it. Then it’s the defendant’s turn.

While we can probably all agree that some reforms were necessary (for example, the Athenian practice of only accepting a slave’s evidence under torture certainly had to go), is our current lawyer-centric system really any better? If so, why is the old model preserved in small claims (the “People’s Court”), and in ADR (the method of choice for the most sophisticated)?

I’ve (another) theory: the Rules are there to protect litigants, but not from each other. Oh no. The Rules are there because of us. Straightforward procedures work until lawyers get involved. We are the ones who can’t be trusted to behave. There was no reason for a rule against leading the witness, until lawyers started rehearsing with their clients.

Just like every warning label evinces some prior stupidity, every rule of procedure is probably there because without it, lawyers were, ahem, “zealously advocating for their clients,” in an unfortunate manner. And all those practice directions and unwritten rules are there because of the uses we made of the Rules themselves.

We, my learned friends, are the problem.

Which brings me back to the notion that we need fewer lawyers. Again, I’m not proposing mass disbarment. But why not create a system that encourages people to solve their problems without paying lawyers? Why not foster and enable self-representation?

Here is a serious suggestion: let litigants opt into the small claims procedure, regardless of quantum, and ban lawyers. If the other side objects, the case will continue under “normal” procedure, lawyers and all, with the caveat that if the objecting party loses, it has to pay the other side’s legal fees in full.  

Another idea: apply small claims’ 15 per cent cap on costs universally.  

If we want to get really radical we can combine that with the salary cap used in major league sports to keep things “fair” between richer and poorer teams. Instead of capping what parties can recover for their legal fees — limit what they can actually pay their lawyers.  

Limit what lawyers can charge.

We wouldn’t be the first profession subject to some form of price control. While doctors complain about OHIP, I don’t see medical schools shuttering, 26 per cent of our doctors chose to come here from somewhere else, and the number of doctors per 1,000 people has been rising for over 50 years.  

Personally, I hate the idea of being told how much I can charge because I: a) like money; b) loathe central planning on general principles; and, c) have a sneaking suspicion that any limits would be enforced by the law society, which would be a catastrophe.

But as long as we equate “access to justice” with “access to an affordable lawyer,” that’s what it will take: direct control of how much lawyers cost.

As long as we have a legal system that legally or practically requires the services of a lawyer in order to get any modicum of justice, this is what it will take.

No amount of new law schools, new lawyers or new funding for legal aid, will fix the problem. If you want lawyers to be affordable you have to make them affordable.

And if you hate the idea of price caps as much as I do, then I strongly suggest you advocate for changes to our system that would make lawyers an option, but not a necessity.

Gabriel Latner is a litigator and partner at Advocan Law.

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