This article is composed from excerpts of an interview with Gillian Hadfield on May 14, 2019 in Vancouver. It has been heavily edited for style and brevity.
Q: What can we do about the access to justice crisis?
It’s important that we expand the range of people, professionals, and types of businesses that can give people help. The move that we’re seeing – let’s license paralegals – is a good move. It can’t have much of an impact on the access to justice problem, though, because paralegals are working in the same kind of business model as lawyers and you can’t be truly efficient at the small scale available to lawyers operating under the rules prohibiting outside investment or employment by non-lawyer-owned enterprises.
As you gain scale you can develop technologies because you figured out how to sell to enough people. You can make the cost per person much lower. You can be more transparent. People don’t want to buy hours: they have no idea what a legal hour means. But you can’t do flat fee pricing without substantial scale because you need scale to absorb the risks: sometimes you can figure out how to have that one mediation session with the other side and you can be done in a couple of hours. Sometimes it’s going to just drag on for months. You need scale in order to smooth that out.
Q: How would you respond to some of the common criticisms from the Bar?
There is tremendous opposition from ordinary lawyers to the kind of changes that I talk about, and actually a lot of that reaction isn’t just “I think that’s a bad idea, we shouldn’t do it.” It’s also “How dare you!” Sometimes it’s just driven by “Don’t mess with my business here,” but it can be sincere.
One of the things to consider is the very high levels of stress, substance abuse, family breakdown, and depression among lawyers. I want to say to that group: “What you are experiencing and suffering, is the other side of what’s really bad about the way we do things.” The vast majority of people like to be employees. Employees show up at work, and the employer takes on the risk. The basic trade is I get hired as an employee and the organization, worries about the rest of the business. That’s a deal with risk.
When the small firm practitioner thinks “Oh, you’re going to allow companies to come in and compete with me. I’m going to lose my business,” and you say, “Well, maybe, but you can become an employee, or a partner of those providers, and that’s how you actually move to a much better, happier, financially rewarding, personally rewarding, stable, life.”
So, you don’t want to think “I’m going to lose business to the company,” because you can be the company. I think the gap is that lawyers are running this business and they’re saying the big company’s going to beat me out. They’re not saying “I can be the big company. I’d be part of that. I can actually be the person who’s helping to make that successful.” You close the door and open a window – it’s a big, big, big window.
The kind of thing I hear all the time is along the lines of “This would destroy the independence of lawyers” or “Professor Hadfield doesn’t understand the critical role that the independence of the legal profession plays in upholding our democracy.”
I think a significant part of it is just misunderstanding the economics and the way regulation works. Lawyers often respond by saying “corporations are bad and if lawyers work for corporations, they will have to serve corporate interest and not public interest.” But corporations are everywhere in our economy: they serve food in restaurants, build buildings, own taxi cab companies, and fly airplanes. Why do we have confidence that the food we eat is produced in a sanitary kitchen? Because they get audited. Somebody comes in and checks.
The people who work for these companies, yes, they work for an employer to whom they have obligations, but they absolutely are obligated to follow the rules we put in place to make sure that they’re making decisions in the public interest. That’s similar to what we have seen with doctors – they are held to their medical ethics, even if they are employed by hospitals or health insurance plans.
Brandon D. Hastings is a lawyer and mediator with expertise in family and civil litigation, and appeals. Gillian Hadfield is a leading proponent of the reform and redesign of legal systems for a rapidly changing world facing tremendous challenge from globalization and technology.