Much of the research and writing on access to justice issues in the last five years, including that of the Canadian Bar Association and Julie Macfarlane’s National Self-Represented Litigants Project, has discussed unbundling as a potential, albeit partial, remedy.
The idea here is that the usual full-service retainer, ever so commonplace in civil litigation, makes lawyers’ services unaffordable and prevents many litigants from accessing justice. (Professor Macfarlane’s landmark 2013 study on the issue of self-representation found that “inability to afford to retain, or to continue to retain, legal counsel” was the overwhelming reason why the litigants she spoke to were proceeding without counsel.) If we give people the option of hiring a lawyer for just some of a legal problem instead of all of it, we let them choose the legal services they want, when they want, at a price they can afford. This does not, of course, provide complete access to justice, but it provides some access to justice, and additional arguments are also to be made that limited legal work has incidental effects that improve clients’ overall legal capacity, extending the benefit received beyond the brief services provided.
Although the arguments in favour of unbundling are compelling, and include some important job satisfaction claims on counsel’s side of the table, arguments are what they remain. No research has ever been undertaken to determine whether limited scope retainers have the positive impact on access to justice they are believed to have. Given the aversion to limited scope work that continues to plague the bar, and is presumably why so many of Professor Macfarlane’s litigants were unable to retain counsel on this basis, research on the point, and on lawyers’ and clients’ satisfaction with unbundled services, would have significant value.
Enter the stylish and inimitable Rob Harvie QC, of the Lethbridge firm Huckvale LLP. Rob has been working with a group of Alberta lawyers, more or less connected with the CBA Alberta’s access to justice committee, over the last several years to lay the foundations for just such a study. After a fruitless search for funds within Alberta, we finally obtained funding for the research from a cy-près fund administered by the Law Foundation of Ontario.
The plan for the research project, being conducted by the Canadian Research Institute for Law and the Family, involves the recruitment of Alberta lawyers who agree to provide legal services on a limited scope retainer during the project’s 18-month data collection phase, providing of course that services on such a basis are appropriate to the client and the problem. Participating lawyers will provide their services at their usual hourly or flat rates; no discount or other consideration is required for limited scope files taken during the project.
Participating lawyers will receive a short training session to introduce the project and the resources that will be made available to them, including model retainer agreements, best and recommended practices, frequently asked questions and legal and academic articles on unbundling.
We will promote participating lawyers and their services through the project website, as well as the list of lawyers providing limited scope services maintained by the National Self-Represented Litigants Project. We will also promote the project, and the list of participating lawyers, to the bench, the bar, court administration, legal clinics such as Calgary Legal Guidance and the Edmonton Community Legal Centre and other public-facing legal organizations.
All the project asks in return is that, at the conclusion of each file, the lawyer and client each complete separate, brief surveys on their satisfaction with the work performed and its impact on the client’s overall legal problem. Participating lawyers will complete a somewhat longer survey every 6 months to obtain their retrospective impressions of limited scope work in general. The Institute will analyze the data gathered beginning in August 2018, and will prepare a report to be disseminated to the bench, bar and policy-makers in October 2018.
At present, we are in the midst of collecting lawyers to participate in the project before its public in March 2017. We have 38 lawyers on our roster thus far, whose practices are located in Calgary, Edmonton, Fort McMurray, Grand Prairie, Lethbridge, Lloydminster, Medicine Hat, Red Deer and Sherwood Park. We would like to add to this list – we are particularly interested in ensuring representation from Alberta’s less populated cities and towns – and intend on speaking to as many practice groups and bar associations as we can over the coming months. We are focussing on family law, being the area of greatest need, but will be glad to enlist all lawyers willing to work with us.
We are tremendously excited that this project, which has been so long in development, is nearing launch. The findings contained in the Institute’s final report will be the first empirical data gathered in Canada on the efficacy of unbundling as an access to justice strategy, and should be applicable throughout the country. If you or anyone you know would like more information about the project, and perhaps even volunteer, please contact me and visit the website of the Alberta Limited Legal Services Project at albertalegalservices.com.
Much thanks are due to Rob, for his leadership over the past several years, and to the Law Foundation of Ontario, for their support and their commitment to improving access to justice for all Canadians. Thanks are also owing to the other members of the project’s ad hoc steering committee: Sharon Crooks, Megan Dawson, Andrea Doyle, Cecelia Frohlick, Ed Gallagher, Jack Hauptman, Brad Kring, Kendall Moholitny, Kathy Parsons, Richard Rand and Diane Shearer.
John-Paul Boyd is the executive director of the Canadian Research Institute for Law and the Family. The Institute is a federally-incorporated charity established in 1987 and is affiliated with the University of Calgary.