Bend or Break: Enhancing the Responsibilities of Law Societies to Promote Access to Justice

Richard Devlin

Abstract


There now appears to be a consensus in Canada that we have a serious access to justice problem. Chief Justices have been vocal. The Governor-General has made an intervention. Legal newspapers and websites have weekly, if not daily, stories on access to justice concerns. There have been several thorough reports which both detail the problems and propose possible paths forward. And one CEO of a national law firm has lamented that “access to justice is the legal profession’s equivalent of global warming.”

However, in my opinion, despite all this alarm, attention, and progress, two key components tend to be missing from the analyses: a clearly articulated conception of the ethical identity of a Canadian lawyer, and a sufficiently concrete elaboration of the responsibilities of law societies to help in the resolution of our access to justice problems. I will also argue that both these components are closely connected.

Before I proceed to advance my argument, several caveats are essential. First, I do, of course, realize that access to justice is much more than access to law and/or access to lawyers. But, at the same time, it cannot be denied that the legal profession is one of the determining structural forces in the access to justice problematic. The legal profession cannot be allowed to get off the hook, even by inadvertence. Second, some might ask why am I focusing on law societies, and that I should be paying attention to my own backyard — the law schools’ responsibilities for promoting access to justice. I have been doing that in several recently essays. Third caveat: while I am going to be critical of law societies, I do recognize that many individual lawyers, either in their practices or through pro bono, strive hard to enhance access to justice. My concern in this essay is more with institutional responsibility, not individual responsibility. My fourth caveat is that I am focusing on law societies and not the Federation of Law Societies of Canada (FLSC) because a) it is the law societies who have the legislative authority and obligation to govern the legal profession not the FLSC, and b) the FLSC is over extended and under resourced as an organization.

My argument will proceed in three stages. First, I will provide an overview and assessment of the three major access to justice reports that have been recently published. Second, I will outline an account of the ethical identity of a Canadian lawyer and what this says about the access to justice problematic. Third, I will propose eight concrete recommendations that law societies should pursue to assist in the resolution of the problems of access to justice.

Keywords


Access to Justice; Legal Ethics; Legal Profession

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