The Need for a Systematic Approach to Provision of Legal Services

Over the past few weeks, @Erin Durant42 has done yeoperson’s service in responding to the anticipated closing of the Pro Bono Legal Help Centres to the extent that the Centres will now be funded for another year.

This is good news, but it also highlights one of the serious problems we have in trying to provide access to justice to those who cannot afford a private lawyer. The past years have seen the springing up of a variety of responses to the lack of access to justice (in the sense of access to legal services), many of them reliant on ad hoc funding or lawyers’ volunteer labour. Of course, these services have developed because governments have failed to commit to providing adequate support for legal services and because the model of legal service provision is primarily private. Is it possible to serve the public adequately with this approach and is there an alternative?

Let’s remember that people use legal services for many reasons: to obtain benefits from government when they have been denied, assert rights against government, employers or insurance companies, defend themselves against criminal charges, fight government’s removing their children, buy a house or write a will or power of attorney, stand up for their good name and resolve private business, other civil and family disputes, among others. And everyone on the other side of all these and other disputes usually want the benefit of legal services, too.

Some of these plaintiffs and defendants are not overly concerned about obtaining legal services. They can afford to hire lawyers. Sometimes, they believe they can do a better job themselves than could a lawyer. My concern is not with them, but with those who cannot afford a lawyer or who are forced to expend a disproportionate amount of their financial security to do so. To provide legal assistance to them, and there are still too many who cannot obtain it, we’ve created a range of different models and services.

The major source of legal assistance outside the private system is legal aid, including a well-established system of community legal clinics, some of which specialize, and student legal aid clinics. It is grounded in legislation (the Legal Aid Services Act, 1998 in Ontario, for example) and therefore seems to have some permanence, although experience tells us not to be too sanguine about that. The amount of its funding can be vulnerable, but it is available across the province of Ontario and to varying degrees across Canada. It is never enough and does not cover all kinds of legal problems.

Beyond that, Pro Bono Ontario last year provided services to over 25,000 people with a range of services that rely on volunteer lawyers located in courthouses, over the phone and in hospitals, for example, as well as helping other organizations create their own pro bono services.

Providing pro bono legal services has long been considered a “good thing” and to some extent, payback for the privilege of being able to obtain a law degree. It also reflects that lawyers have the necessary skills to protect citizens against an overreaching government. The difficulty, though, is that organized pro bono services have become a branch of how society provides legal assistance, with some seeing it as an alternative to legal aid. (It has grown considerably in the nearly twenty five years since I started teaching law and assisted in starting a pro bono “clinic”.) We do not expect engineers, plumbers, doctors or others to provide their services for free as a significant method of providing those services. This issue of how much the system relies on lawyers’ free labour merits a separate discussion. For my purposes, it is sufficient to identify it as one way — in different forms, sometimes haphazard — in which legal services are delivered.

Although there has long been a duty counsel approach, with lawyers who talk to litigants before they go into court, people with legal problems who are unable to find legal help were for a long time more or less left to their own devices. The provision of “simplified” legal information so that people can represent themselves has been increased considerably over the past years, especially with the internet. There is much well-developed information out there (provided by Community Legal Aid Ontario, for example), part of the legal aid system; the trick is making sure that people facing problems can find it, identify what they need and understand it well enough to use it effectively.

In addition, the National Self-Represented Litigants Project (NSRLP) develops and collects resources for people who are forced (or want) to represent themselves, as well as pursuing advocacy and research. While funded by various organizations, it also seeks donations. And we can’t forget the increasing number of on-line dispute resolution processes or other AI techniques that are intended to make it easier for people to solve their own problems.

I don’t pretend to have mentioned all ways of providing legal services here or to have given a full picture of how those I have referred to fulfill their legislative or self-defined mandates. (For example, law societies are contemplating allowing non-lawyers (or non-paralegals) to provide some services.) Despite these various methods, however, too many people with legal problems have trouble figuring out what their problem is, or even whether it is a legal problem, and in finding the kind of support they need to address it. It’s hard to remember what it’s like not to know law. It’s hard to remember not knowing when you need help and when you can take care of it yourself (because you don’t know what you don’t know). (Although the rest of life provides plenty of situations where that’s the case, in my experience.)

These (and similar) initiatives have value and fill crucial gaps, but they are insufficient, even together, to provide the degree of access to justice, or more accurately, access to the legal system, that is needed. What is missing is a systematic reconfiguration of how people seeking assistance with a legal problem can enter the system and through a triage process, be directed towards the kind of help they need. The Law Commission of Ontario’s family law report recommended multidisciplinary centres that would link people with family law problems with the resources that could most effectively address their problems. This approach could be used for legal problems more generally. Its emphasis would be on providing in-person assistance to determine the extent to which someone can manage their problem or some part or stage of it on their own and in determining the kind of assistance required (for example, this might be a lawyer or paralegal, but it might also be a trusted intermediary, whose contribution can be considerable, as shown by a Law Foundation of Ontario study).

Instead of seeing individual points on a landscape of legal services, potential users would see a web of coordinated points emanating from a central point (or more realistically, several “central points”), differentiated by type of law, service and complexity. If helping people address their legal problems, which are often accompanied by all kinds of other emotional, psychological, economic and social problems, matters to us, we have to face up to the reality that volunteer work and diverse unconnected efforts, however worthwhile in themselves, provide a deficient response.

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