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The Cost of Family Law Legal Services in Canada: a Historical and Critical Analysis of Lawyers’ Business Decisions

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The Cost of Family Law Legal Services in Canada: a Historical and Critical Analysis of Lawyers’ Business Decisions The cost of family law legal services in Canada: a historical and critical analysis of lawyers’ business decisions Stephanie Chipeur Faculty of Law, McGill University, Montreal August 2014 A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master of Laws (LL.M.) © Stephanie Chipeur, 2014 Acknowledgements I want to thank my LL.M. supervisor, Dean Daniel Jutras, for his time, support and critical feedback during of research and writing for this project. I also want to thank Michelle Sarrazin, of the Dean’s Office McGill Faculty of Law for arranging my meetings with Dean Jutra and always making me laugh. The support and encouragement of Associate Dean Angela Campbell has been important to me as I completed my thesis and I thank her. One of the most enjoyable parts of my work on this thesis was interviewing the lawyers who agreed to participate in my research. Their recollections deepened my understanding of the day-to-day practice of law in the 1970s and, I hope, will do the same for the reader. What I do not include in the thesis, however, are the parts of the interviews that expressed the sincere empathy of these lawyers for their clients, which was always combined with a great sense of humour about the human condition. In my experience, these are the character traits of all individuals who successfully dedicate their careers to working in family law. I also want to thank the librarians at the Great Library at Osgoode Hall in Toronto. They were very helpful when I was conducting research for this project. I appreciate their help in keeping the cost of my research low, by allowing me to use my smartphone to take photos of hundreds of pages of archival materials. It has been such a privilege to work on my thesis in Montreal, and specifically at the McGill Faculty of Law. Professor Mark Antaki’s course on Theoretical Approaches to Law was challenging but essential in my transition from the law firm world back to academic work. I have had great support from my parents, Barb and Gerry, and my sister, Lauren. My dad has been particularly helpful by talking to me about aspects of this project from beginning to end. He reviewed and discussed with me significant portions of this thesis. I greatly appreciate the assistance of Paul Beaudry in translating my abstract into the French language. And finally I want to thank my friends in Montreal, especially my roommate Jade Honce and fellow LL.M. students, Portia Karegeya and Bradley Por, for their encouragement and motivation. Simon Vickers, Vivian Grinde and Lauren Chipeur were also of great help, providing crucial editing assistance for the final draft of this thesis. 2 Abstract This is a study of lawyers’ business decisions and the implications of those decisions for access to legal advice and representation in family law. Changes to law office management and the adoption of hourly billing practices, occurred just as family law became a specialized practice area following the enactment of the Divorce Act in 1968. This analysis of the history of pricing legal services in the 1960s and 1970s demonstrates that the high cost of legal services today is the result of choices made by members of the legal profession in the past. Today, one of the central themes in the “access to justice” scholarship in Canada – client-centered justice – glosses over the importance of lawyers’ agency. Concurrently, the scholarship on the legal marketplace or the “business of law” primarily addresses large, elite corporate firms, excluding the business practices of many lawyers who provide personal legal services, such as family lawyers. The Canadian organized bar’s current approach to legal expense insurance for family law is illustrative of the problem with ignoring the agency of lawyers. The organized bar has not adequately educated lawyers on entering into a relationship with the legal expense insurance industry as an intermediary in billing between lawyer and client. Instead, the focus has been on educating the public to create demand for legal expense insurance. Résumé Cette étude analyse les décisions d’affaires d’avocats et les conséquences de ces décisions en matière d’accès à la justice en droit familial. Des changements dans l’administration des bureaux d’avocats, comme par exemple la tarification horaire, ont eu lieu juste au moment où le droit familial devenait une pratique spécialisée suite à l’adoption de la Loi sur le divorce, 1968. Une analyse historique de la tarification des services juridiques dans les années 1960 et 1970 démontre que le prix élevé des services juridiques aujourd’hui résulte de choix faits par les membres de la profession juridique dans le passé. Aujourd’hui, l’un des thèmes principaux abordés dans la littérature concernant l’ « accès à la justice », soit la justice centrée sur la personne ou le client, ignore l’importance du rôle de l’avocat. Concurremment, la littérature sur le marché juridique ou la profession juridique concerne principalement les grands cabinets d’avocats spécialisés en droit corporatif, et exclut les pratiques d’affaires des avocats offrant des services juridiques personnels, tels que le droit familial. L’approche actuelle du Barreau canadien en matière d’assurance frais juridiques pour des services de droit familial constitue un exemple qui illustre le problème qui surgit quand on ignore le rôle de l’avocat. Le Barreau n’éduque pas les avocats à 3 propos de la possibilité de faire affaires avec des compagnies offrant l’assurance frais juridiques en tant qu’intermédiaire dans la facturation entre l’avocat et le client. L’accent est plutôt mis sur l’éducation du public afin de créer une demande. 4 Table of Contents Introduction .............................................................................................................................. 6 Notes on Methodology ................................................................................................................... 10 Part One: The New Market for Family Law Legal Services in Canada Following the Divorce Act, 1968 ............................................................................................................ 15 The Beginnings of ‘Law Office Management’ in Canada ..................................................... 19 Practice area specialization and lawyer advertising .......................................................... 26 Inflation and Tax Reform ............................................................................................................. 30 Taxation of accounts ...................................................................................................................... 33 Fee schedules or tariffs ................................................................................................................. 38 The price of family lawyer legal services ............................................................................... 42 Conclusion ......................................................................................................................................... 49 Part Two: How ‘People-Centered’ Access to Justice Overlooks the Agency of Lawyers .................................................................................................................................... 51 Access to justice “waves” .............................................................................................................. 53 Self-representation and unmet legal need ............................................................................. 58 Self-help strategies ......................................................................................................................... 59 The business of law ........................................................................................................................ 62 Blaming the misinformed public ............................................................................................... 63 The agency of lawyers ................................................................................................................... 66 Conclusion ......................................................................................................................................... 68 Part Three: Marginalizing the Market for Personal Legal Services .................... 70 The focus in the scholarship on large, corporate law firms ............................................. 72 Dominance of client led innovation ......................................................................................... 79 The marginalization of personal legal services .................................................................... 82 Conclusion ......................................................................................................................................... 86 Part Four: Family Law, the Canadian Organized Bar and Educating Lawyers about Legal Expense Insurance ........................................................................................ 88 Legal Expense Insurance to Improve Access to Family Lawyers .................................... 89 Family Law LEI in Canada and Europe ..................................................................................... 94 Law societies and CBA’s approach to legal expense insurance ....................................... 98 Conclusion ...........................................................................................................................
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