Globe and Mail

Justice is greedy

The real cost of high lawyers' fees is a legal system that's unjust, argues Osgoode Hall law professor

The Globe and Mail
Tuesday, February 6, 2001

It's hardly news that lawyers' fees are high -- that, as the system's gatekeepers, lawyers place a charge on access to justice which is beyond the reach of many. But when a pillar of the legal establishment demands action, we know the problem is serious.

Three days ago, Ontario's Chief Justice Roy McMurtry chastised the profession for making legal services an expensive luxury, and he challenged lawyers to re-think the way their services are provided and priced. In particular, he urged them to stop billing by the hour and start charging by the case; there was a need for ceilings, instead of an open-sky practice.

Criticism of lawyers' fees is almost as old as the profession itself and the present situation is no worse than before. But public tolerance has changed. Imagine if airlines charged on the same basis as lawyers: an hourly fee, with no guarantees of any limit and the price escalating as delays, bad weather and mechanical failures occurred.

What is to be done? Can the profession put its own house in order? While it may act to placate dissenting voices in the short term, it's unlikely to engage, of its own volition, in the dramatic reforms that we urgently need.

A favourite strategy of lawyers is to blame government and courts. While it's true that legal aid is woefully underfunded and the courts are too timid in getting to grips with lawyers' sloppy and expensive posturing, this is passing the buck. Too often, reform proposals subsidize rather than check the high cost of legal services. We need a bolder approach.

The problem is not so much high fees in themselves; there's nothing wrong with charging a rich tariff to those who can afford it. It's a common conceit of lawyers to defend their fees as a function of market economics -- arguing that they're charging what the market can bear and prices will fluctuate with changing market conditions. After all, it is said, lawyers are selling a valuable commodity and are entitled to expect top-dollar remuneration.

This might be palatable if it was not based on an economic sleight-of-hand. Lawyers, unlike investment bankers, are not just another sector of the business world. They have sway over a legal system supposedly committed to social justice, and it is one of that system's touted virtues that justice is not for sale to the highest bidder. As long as lawyers are beyond the pocket of most citizens, so is social justice.

Secondly (and most offensively), there is no genuine market in legal services. Lawyers hold a jealously guarded monopoly on the provision of legal services, controlling entry, education, discipline and regulation. Against this basic fact, claims about the equity of market principles seem so much humbug: Lawyers have it both ways and citizens get it no way at all.

One response to the present crisis in legal fees is to seek removal of the profession's monopoly. There's no reason why the legal profession should retain its privileged protection: A monopoly is only justifiable if there is overwhelming evidence that there is no other way to serve the public interest.

Sadly, the legal profession too easily mistakes its own interests for those of the public. Allowing paralegals and others to offer more legal services might be a good start.

While complete de-monopolization is a tempting prospect, it's not the best solution. It could do as much harm as good by consigning poorer people to second-rate legal service. Moreover, de-monopolizing the legal profession might actually exacerbate the problems by removing from public scrutiny and civic regulation those lawyers whose fees might then go through the roof.

A more practical, effective intervention would be to let lawyers retain their monopoly, but only on the condition that they truly serve the public. This means that there must be more citizens and clients involved in running the profession, that lawyers must be answerable to someone other than themselves, that they pay for their monopolistic privilege by contributing a share of their fees to funding legal services for poorer litigants, and that fees are regulated for price as well as quality.

While there's much talk of a glut of lawyers, there are actually too few, if the standard is whether people can find a lawyer at a reasonable price. We need more lawyers and a more diverse profession that is prepared to fulfill its obligations to do justice. Making money and doing good are not antithetical, but lawyers must remember which is to be master.

Courts can play a decisive role. And judges already have considerable power to assess lawyers' fees and to discipline prodigal lawyers; they must be prepared to use these powers vigorously and to set appropriate expectations. Meanwhile critics such as Chief Justice McMurtry must put their money where their mouths are; talk of reform is not enough. By acting forcefully against lawyers, Mr. McMurtry can be Chief Justice in spirit as well as name.

As long as access to justice depends on access to lawyers, society must oblige the legal profession to meet its public responsibilities -- the leading one being that legal services must be genuinely available to all. Or it must relinquish its monopoly; the profession must be subject to anti-trust rules and broken up. After all, we're committed to the Rule of Law, not the rule of lawyers. What's good for lawyers is not necessarily good for everyone else.

Allan C. Hutchinson, who teaches law at Osgoode Hall at York University, admits he has charged his share of legal fees.

Copyright 2001 Globe Interactive, a division of Bell Globemedia Publishing Inc.