© 2006  Karen Selick
Free Legal Services--Utopia or Nightmare?
An edited version of this article first appeared in the February, 2006 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Free Legal Services—Utopia or Nightmare?

Former Supreme Court of Canada justice Claire L’Heureux-Dubé retired from the court in 2002 but her name still crops up in the newspapers occasionally.  At a conference on legal aid held a few months ago, she made headlines with this statement:  “Legal services, like health care, should be free in an ideal society.” 

My mind boggled.  L’Heureux-Dubé’s ideal society would in my view be a horrifying nightmare.  Here’s why.

First there’s that highly seductive word “free”.  We’ve all heard that old cliché about the best things in life being free, but what things really are?  Only a few come to mind—air, sunlight and rainwater, for instance.  You can just stand outdoors and gather them in.  Nobody else needs to do anything in order for you to have them. 

Is health care free, as L’Heureux-Dubé suggests?  Not at all.  There’s no cadre of ghostly doctors who descend from the heavens, perform medical services, then vanish again into thin air with no need of compensation for themselves.  Like everyone else, doctors must be paid for their services.  They need food, shelter and clothing or else they can’t work.  Similarly, hospitals don’t spring fully-equipped from the earth.  They have to be paid for, and they are paid for, by the sweat of somebody’s brow—“somebody” being the millions of taxpayers in the country. 

So anyone who says that health care in Canada is “free” is actually using language very carelessly.  What would be accurate would be to say that health care in Canada is never free, but is usually paid for by somebody other than the patient. 

How would it have sounded, I wonder, if L’Heureux-Dubé had said, “Legal services, like health care, should in an ideal society usually be paid for by somebody other than the person who uses them.”  A bit less appealing, perhaps?  Maybe even a bit nonsensical?  I mean, if we’re all going to be paying for somebody else’s legal services, why don’t we just each pay for our own?

But there are other things wrong with the concept of free legal services.  One is a phenomenon that economists call the “downward sloping demand curve.”  If you graph the price of any commodity against the amount that people are prepared to buy, you invariably find that people wish to consume more of something when it’s cheap, and less when it’s expensive. 

You don’t have to be an economist to figure this out.  Every shopkeeper knows that when he wants to sell off some item that’s overstocked or perishable, he lowers the price and—sure enough—people buy more.  Every consumer with even the slightest capacity for introspection knows that he is more likely to buy something, or to buy more of it, when it’s on sale. 

Medical and legal services are no different from any other commodity.  Not every doctor appointment is a matter of dire necessity.  People do have discretion about whether to seek medical treatment for many minor ailments.  My own family physician has estimated to me, in all seriousness, that if patients had to pay as little as two dollars per appointment, fully half of the visits that patients make to his office would not occur.  The fact that they can come for “free” encourages people to come for the most trivial of reasons.

What would happen if legal services were provided “free” to everyone?  Obviously, people would use more of them.  They would litigate their fool heads off.  Court backlogs would grow.  A shortage of lawyers would develop.  Total spending on legal services would skyrocket.  In other words, medicare all over again. 

For the first few years after I began practicing matrimonial law, I accepted legal aid clients.  The ones who had repayment agreements generally used their services with restraint, but the others did exactly what people could be expected to do with a service that is costless to them:  they wasted it.  I remember one woman who expected me to fight with her husband over possession of a microwave oven.  Later, I found out that the damn thing had been broken even before they split up. 

When I eventually stopped taking legal aid cases, the number of trivial phone calls from clients dropped drastically.  People who know they’ll have to pay $25 just to ask whether I’ve heard anything from the other side tend to control their anxiety better than people who think they can call for “free”. 

Maybe L’Heureux-Dubé really thinks that more litigation would produce an ideal society.  Personally, my conception of an ideal society is one in which litigation is virtually non-existent. 

It’s actually rather embarrassing explaining things like this that are, to my mind at least, so blatantly obvious.   However, Claire L’Heureux-Dubé is a highly decorated and extremely prominent individual.  That fact that she can get up and make such statements in front of presumably educated groups of people, then be reported in all seriousness by the newspapers, indicates that even these apparently elementary concepts need elucidation from time to time. 

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  February 21, 2006