Going to town

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There’s been a lot of discussion lately about the numerous factors leading to the continuing contraction of the legal profession in smaller urban centers and in rural outposts. Here’s another one: competition for legal talent. Large-center practice is operating at unprecedented levels of profitability these days; even if small-center practices were still reasonably feasible, large-center practices are now so lucrative that it’s hard for any but the most diehard devotees of small-town life to pass up the opportunities in urban Canada.

The law societies of British Columbia and Ontario have produced reports on this subject, and both identify it as a serious matter for the profession. I’m not entirely sure that it is, for a couple of reasons.

First, that belief presumes that a shortage or absence of lawyers in small centers results in reduced access to justice in those locations. Lawyers have long believed that only they can really provide legal services competently, even as the alternative legal services market (primarily paralegals, but also including title insurers and do-it-yourself will CDs) continues to flourish every year. It would hardly behoove the LSUC, for instance, to maintain that lawyers are a sine qua non for access to justice when the LSUC itself has battled successfully to gain the right to regulate paralegals.

Before we decide that only lawyers’ services pass the threshold of providing access to justice, maybe we ought to let someone else try. If lawyers really want to ensure the best possible world for access to justice, they should help throw open the legal-services marketplace to as many competitors as the market will allow, and let clients sort the wheat from the chaff. Perhaps needless to say, I don’t think that’s going to happen.

Secondly, it’s not clear to me that law societies ought to be responsible for ensuring what amounts to a lawyer in every community, like a chicken in every pot. Law societies are statutorily charged with governing the profession in the public interest – hatching, matching and dispatching lawyers, to paraphrase the TV show.

The law societies are not, I don’t think, mandated to ensure access to justice; certainly, they have neither the funding nor the authority with which to accomplish that. If the marketplace is pulling lawyers away from smaller centers and towards the cities – which is also happening in the general population, as yesterday’s census results confirm – then I don’t see why lawyers’ governing bodies should attempt to maintain what amounts to an artificial geographical distribution of lawyers that belongs to a different demographic generation.

I’m doubtful in any event that the debt-relief option for lawyers relocating to smaller centers is the answer. Skyrocketing tuition fees are a relatively recent phenomenon, but small-center Canada has been failing to recruit new lawyers for much longer, as the average age of its current lawyers (55) attests. Debt relief also assumes that new lawyers will choose Red Deer over Calgary or Smiths Falls over Toronto primarily if their student loans will be paid off more quickly, and I’m not sure there’s evidence to support that. I don’t think these sorts of incentives have worked very well with doctors, for instance.

What this whole thing really presages is a discussion of who is a lawyer, and why. For all the organized bar’s contempt for paralegals, your average solo in Wawa, Glace Bay or Trail has a lot more in common with the local paralegal than he or she does with a pharmaceutical patent lawyer in Ottawa, a tax litigator in Vancouver, or an oil-and-gas dealmaker in Halifax. The general term “lawyer” now encompasses such a wide diversity of professionals that it doesn’t really make sense to categorize them under one term.

In future, I think we’ll see the legal services marketplace continue to break down along price points and risk factors. Already, the type of legal work most commonly found in small towns simply doesn’t pay enough to justify law society fees, professional insurance and practice overhead (or at least, to supply the type of income most lawyers still consider commensurate with their professional standing). Real estate alone is pretty much done as a lawyers’ staple; only title insurers and banks have the volume and risk coverage to properly manage it anymore.

So long as it costs a lot of money to obtain and maintain a lawyers’ licence, the type of legal work that can justify the cost of a lawyer will continue to shrink – in no small part because technological advances will continue to reduce the cost of many services lawyers have traditionally been able to offer exclusively. The urban-rural breakdown of lawyer distribution is as much symptomatic of this change in the legal marketplace as it is of any other associated demographic trend.

This post originally appeared as a comment to a post at Slaw on March 14, 2007.

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