No Easy Answer on Access to Justice

When lawyers say they can’t afford their own services, you might have an access to justice problem.

Regina lawyer Alex Shalashniy said during the CBA Legal Futures Initiative’s Twitter chat Tuesday night that he’s heard lawyers admitting they would be unable to pay their own fees if they needed a lawyer – something he calls a “telling illustration” of the access to justice problem in Canada.

A number of people participating in the third weekly Twitter chat, this one dealing with how legal services can be changed to increase access, pointed to cost as a barrier.

Corinne Boudreau, owner of Two Certainties Law in Halifax, wrote, “I think that hourly billing hurts access to justice because many individuals cannot write a blank cheque.”

“Over-reliance on (expensive, hourly) lawyers, lack of education for young lawyers re: discussing fees and billing,” are problems, added another Halifax lawyer, Amy Sakalauskas.

One participant, with the Twitter handle @MarieMachete, suggested that reversing legal aid cuts would help the problem. @MarieMachete is a third-year law student in the U.K. where cuts of £350 million from a £2-billion legal aid budget mean aid centres are closing and things like getting an amicable divorce will be much harder in the future.

Jay Michi, a third-year student at Thompson Rivers University in Kamloops, says law schools are oriented toward producing lawyers for big law firms – an orientation that needs to change in order to improve access.

Law schools should promote access-to-justice-friendly careers, suggests Sarah Glassmeyer, director of content development for the Center for Computer-Assisted Legal Instruction.

Or helping the poor should be treated as something lawyers are required to do via pro bono. Erin Durant, a commercial litigation and employment lawyer in Barrie, Ont., suggested that pro bono hours be treated by law societies just like CPD – a requirement for continuation of law licences – though she admitted she was “stirring the pot” with that suggestion, and didn’t expect it would happen.

Sakalauskas and Osgoode Law student Kwaku Tabi both pointed to a lack of diversity in the legal profession as a barrier to access. A more representative legal community makes for much more trust, when clients can speak to a lawyer to whom they can relate, says Tabi.

“If ‘justice’ lacks in recruitment as evidenced by (this Law Times article),” asked moderator Omar Ha-Redeye, “can firms truly offer public justice?”

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Comments

  1. Allow people who aren’t lawyers to deliver some legal services. There’s an easy answer on A2J.

  2. Jordan, that would help some problems, but I am skeptical about others. Take, e.g., the family law problem. In that area a) the stakes are incredibly high; b) the procedures to be navigated through the courts relatively complex; and c) the skills required high. You can open up the market if you like but that is going to do nothing to change the A2J problems created by (a) and (b) and given (c) may create access to something, but not necessarily justice.

    Think of this way – even at $25/hour, the costs of having someone navigate through a complex family law dispute are going to be really, really high – far more than most people can afford.

    Also, I think we tend to over simplify the economic analysis of this. Take child care. What could be more important than caring for your children? Yet people often try to get their child care costs to an astonishingly low rate; sometimes the ‘free’ rate of leaving them home alone. Not because they are bad parents, but because that’s all they can afford. What are people actually going to be willing to pay for legal services? It may be that the answer is “a price that no one, lawyer or not, will provide them for”. That even if they need them, they won’t pay for them. But then what they will get when their life causes them problems – when they are facing potential apprehension of their child, or cut off of their disability benefits – is not what the law meant for them to receive. They will not get justice.

    I think any “solution” to A2J will have to address the complex issues that cause it.

    Finally, I do not think the question of cuts to legal aid should be taken off the table. For some people, the nature of their legal problems means that a lawyer is what they need, and our refusal to contemplate providing them with one creates the risk that we destabilize the compromise that the law creates. Lawyers who raise this are accused of being greedy/motivated by self-interest, but I’ve got no skin in that game so I’m not going to stop doing so.

  3. Alice, I agree entirely that removing lawyers’ monopoly on legal services (as, by the way, Ontario has already done with the licensing of paralegals) won’t solve all our A2J problems. But it will solve some of them, and that’s no small accomplishment.

    More importantly, it will finally bring market dynamics into the law. Motivated by the huge potential of the latent legal market, new providers will be driven to come up with programs, solutions, and services that can meet some of that demand. The demand is real. Lawyers, collectively, have shown no interest in meeting it. What else should we do?

    The standard objection is that many of these new providers will offer lower-quality services than lawyers do. To which I would respond: of course! This is how every market staggers to its feet, with hits and misses, trials and errors. New entrants never start at the top of the market; they start at the bottom and, with a lot of toil, work their way up. So yes, there will be problems and errors, and there will be pain involved. There is no painless way to improve the legal market, because there’s no painless way for any market to improve.

    I also think we need to move away from “access to justice” and towards “access to legal services.” The former strongly implies access to the courts, which is only one slice of the legal system. There is very little real access to the courts; but we’re not doing much better in any other area of the law.

    Take one example: LAWPRO reported in 2012 that 56% of Canadians don’t have a will, 29% of them because they think they can’t afford a lawyer or don’t know how to get started. There is no easier entree into the legal system than a will, and wills are supposed to be one of the backbones of affordable small and solo practices; yet we can’t even get that right.

    The legal profession has mandated a dichotomy to the market: you can have very expensive, highly reliable access to legal services, or you can have nothing. Nobody in the legal profession has ever asked the market whether it might like other options, and whether it would be willing to absorb some risk in exchange for some affordability. It’s about time we at least asked.

  4. I agree with 99% of that Jordan. I would only make two observations. First, I do disagree with the suggestion that currently market dynamics don’t operate in law. The legal services market is a market, with plenty of providers to compete with each other. It may not function perfectly – indeed, I’ve argued that it doesn’t – but it is a market nonetheless. And in some places it does function not badly – e.g., in real estate services here where there is a flat price and a great deal of ability to identify which lawyer will provide the appropriate price:service ratio.

    Second, I think it is very important to not overestimate the difference those changes will make, either in their own respect, or in light of other changes that will need to be considered.
    As I said previously, adequate funding for legal aid needs to remain on the table.

  5. Alice, I suspect we differ only by the slimmest and least relevant of margins. :-)

    My final observation is that real estate absolutely is a good example of a functioning market in legal services. But it’s also a market in which lawyers have not held a monopoly for at least 20 years, thanks to the arrival of title insurers — a group whose advancement into the market was violently opposed by lawyers every step of the way. It’s to real estate lawyers’ credit that eventually, when faced with competition that could not be stopped, many stepped up their game and improved the quality and pricing of their services, while others recognized they could not do so and went into other fields. And today, nobody talks about access in real estate law. I think that’s a model we could learn from.

  6. Another aspect to ‘access to justice’ and ‘access to legal services’ may be ‘access to law’ – i.e. if the law is easy enough to understand, or comprehensible in its operations and in the relationships it governs, more people will be able to handle their own affairs and the work of lawyers will be simplified.

    Harmonization of laws across jurisdictions (especially within Canada) can have a similar effect for those with interests in more than one province, or who move from one to another.

    Certainly the focus needs to be a lot broader than access to courts, or even to dispute resolution.