Lawyer ‘monopoly’ hampers consumer access to legal tech, says former AG Chris Bentley

Direct to consumer automated legal tools are an attractive alternative to traditional approaches, report says

Lawyer ‘monopoly’ hampers consumer access to legal tech, says former AG Chris Bentley
Chris Bentley

Because lawyers have a “monopoly” on giving legal advice, consumers may be deprived of the faster, simpler and cheaper options potentially available via direct to consumer automated legal tools, says a report by former Attorney General Chris Bentley.

In a recent special lecture and report for the Law Society of Ontario called “Direct to the Consumer Automated Legal Tools: A New Dawn,” Bentley said that the “monopoly power” held by lawyers is the most obvious restriction on the development of direct-to-consumer legal technology tools.

“We now have a majority of consumers who do not have access to the legal advice or service they need,” said Bentley, who currently serves as the managing director for the Law Practice Program and Legal Innovation Zone. “For them, all of them, 100%, are at risk of a worse outcome from the lack of access to justice. DTC are options that might help them.”

DTC options include information services, coordinated or guided pathways, end to end resolution, specific issue or problem assistance, and bundled providers, said Bentley’s report. Many of these options provide the opportunity for a tailor-made approach when it comes to pricing, timing, and business model.

In the lecture, Bentley noted that, even though lawyers possess this exclusive power to deliver legal services, they are limited by specific rules, which include “the restriction forbidding lawyers to provide services from an entity not owned and controlled wholly by lawyers, the restriction that makes it very difficult for lawyers to practice together with professionals who are not lawyers, the inability to raise capital from non-lawyer equity owners, and in some cases advertising restrictions.”

Bentley questioned the need for such stringent restrictions in the face of the obvious shortcomings of old-fashioned legal approaches in addressing overwhelming consumer need. He added that, in countries such as the U.K., the U.S., and Australia, there has been a noteworthy trend of traditional practice restrictions being relaxed.

The adoption of DTC tools is not without its risks. For one, the legal advice given may be incorrect or confusing. There is also the risk that the consumers’ rights may be compromised or unrealized.

“There is a risk, lawyers try to avoid risk, therefore don’t do it. But does that approach really avoid risk?” said Bentley in his report.

Bentley suggests that the benefits of DTC tools, such as price, speed, convenience, and simplicity, may outweigh the risks. “The overarching benefit is that they provide consumers with an option to obtain some access to justice where they now have none outside the traditional ones,” added Bentley.

He then said that the adoption of DTC tools may potentially strengthen the rule of law, as well as the public respect for it, as more and more people gain the opportunity to experience a more convenient way of receiving legal services.

“The existing prohibition, the monopoly, excludes people from accessing some measure of justice where, at the moment, they don’t have the access they need,” said Bentley. “They are protected only from having a choice where now they have none, from finding the justice that the existing approach does not allow them to access.” 

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