Cross Country Conversation on Affordable Legal Services

After Rex Murphy attended the Canadian Bar Association (CBA)’s conference this past August, he must have returned with quite an impression of the pending crisis in the legal profession. Murphy hosted a keynote at the conference, but was also exposed to the CBA’s Futures Initiative, which released its final report that weekend.

Murphy hosted a nation-wide conversation this afternoon on CBC Radio One’s Cross Country Checkup, which was framed as follows:

The cost of hiring a lawyer or going to court is proving too much for many Canadians. An increasing number are going it alone despite the fact some suggest it’s like do-it-yourself surgery. Is the justice system failing the test of accessibility and timeliness?

Murphy started the show by saying the world’s largest retailer has entered the legal market, meaning there’s money to be made in law. However, Canadians are increasingly choosing to represent themselves, not just in civil or family law, but even in criminal matters.

The most common reason provided for self-representation is that legal representation is cost-prohibitive, and legal aid is not available to the majority of Canadians.

Murphy interviewed law professor Julie Macfarlane, self-representing litigant Jana Saracevic, and Ontario Court of Justice criminal court judge Justice David Paciocco.

Macfarlane emphasized that even with increases to legal aid funding, it simply is not sufficient for most Canadians. The majority of self-represented litigants want to have representation, but simply cannot afford it. Individuals who do represent themselves often begin optimistically, thinking that there are resources available for them to be able to figure the legal system out. It is only over time they realize how complex and stressful the legal system is.

Part of Macfarlane’s study included self-represented lawyers, who found that it was much more difficult than representing others, and they were treated more poorly as a result of being unrepresented.

There has obviously been a significant emphasis on settlement as part of the litigation process, and in the way of training for lawyers, many who are entering areas of collaborative law. But the self-represented parties do not have this training, or are fully aware of what the settlement steps of litigation are expected to produce. Justice Paciocco noted that courts are not ignoring the problem and are trying to adapt to the new reality by providing information and resources to the public.

What everyone wanted to talk about what how difficult the process was, and many of these individuals face serious psychological and emotional consequences due to their involvement in the court system.

Murphy took a number of calls from the public, and what appears quite clear to me is that this is an issue which affects the perception of the profession and the repute of the justice system as a whole. This becomes a professional responsibility for us, all of us, to address, even if we do not practice in the affected areas.

Comprehensive solutions can only ultimately come government, by restructuring and simplifying the justice system. But this will only happen once the justice system becomes a political priority.

Murphy’s CrossCountry Check-up first launched in 1965 with a national conversation about whether there should be national healthcare coverage. Perhaps it is time to do the same with the law, with cost consequences on a full indemnity basis in place to ensure frivolous and vexatious litigation does not occur.

Murphy asked Justice Paciocco whether the implications of losing liberty in a criminal matter affects the security of person any less than the type of medical situations we already fund. He asked why we prioritize the adverse consequences of medical situations when the catastrophic financial implications of protracted litigation are often in the same realm of impact on people’s lives.

In the meantime the regulator has a continuing obligation to address this in the interest of the public, and has the mandate and the revenue generating powers (through licensing fees) to do so.

If the law societies do not make this a priority, it is imperative that the rest of us as a profession ensure that they do by electing benchers who recognize the full implications of the current crisis.