Advocates Providing “Legal Services”

There’s change on the horizon for Manitoba’s legal community, and not everyone is on board with it.

If you’ve ever read my posts here (and I haven’t written in quite a while, so you may not have), you will likely not be surprised to learn that I support the current efforts of Legal Aid Manitoba to seek permission from the Immigration and Refugee Board of Canada (“IRB”) to use trained advocates rather than lawyers to represent asylum-seekers where appropriate to do so.

According to this CBC News report, Legal Aid Manitoba is seeking to have its advocates not only prepare a legal aid application and complete the basis of claim form but also, ultimately, provide representation during the hearing before the IRB. This work would, of course, be supervised by practising lawyers.

This is not necessarily newsworthy. Advocates already do work for Legal Aid Manitoba in other areas of administrative law, representing clients in hearings in the areas of residential tenancies and employment and income assistance.

Furthermore, this change is being sought in the same province in which the Law Society of Manitoba’s current strategic plan sets out its intention to explore “giving up the profession’s monopoly over the delivery of legal services.” That exploration is already underway, led by the President’s Special Committee on Delivery of Legal Services.

Increasing reliance upon trained advocates who are not lawyers in a range of areas is a trend that continues to grow. In Manitoba, advocates already provide services akin to legal services in a variety of areas, including workers compensation appeals, automobile injury appeals, employment insurance appeals, traffic tickets and, as noted above, residential tenancies and EIA. One might easily conclude that this ship has already sailed.

Nonetheless, some immigration lawyers in Manitoba are expressing their concerns (here and here, for example), suggesting that only lawyers are capable of providing the degree of expertise required in appearances before the IRB.

Certainly, one cannot argue with the assertion that the consequences for refugee claimants may be dire if their cases are improperly put forward. But one also cannot argue that all lawyers are fully competent to do this work, as a quick review of various law society discipline records soon reveals.

Meanwhile, at Welcome Place, law students from Robson Hall continue to assist advocates employed by the Manitoba Interfaith Immigration Council in preparing in-country refugee claims. This is the only free service like it in Winnipeg, providing help to those seeking asylum in preparing their claims. According to this Winnipeg Free Press article, the program is:

“…funded entirely by donations with two full-time staff…and relies on University of Manitoba law school volunteers. “The students have been extremely helpful,” said Hagos. “We could not do it without them.””

I have to wonder if there is a significant difference between having law students assist, under the supervision of competent practising lawyers, and having trained advocates do the same work under the supervision of competent practising lawyers? I suggest there is not. The key, in each instance, is working with appropriate and capable supervision. Where that is lacking, the chances of something going wrong will doubtless increase.

Here, Legal Aid Manitoba is looking to implement a creative solution to a gap in access to justice for asylum-seekers in Manitoba. The immigration bar in Manitoba is relatively small, with even fewer lawyers willing to take on refugee work, particularly not on the basis of Legal Aid certificates. Indeed, the concern expressed is not that Legal Aid is proposing to take work from these lawyers, but that the clients’ own interests will be jeopardized by losing a potential basis of appeal, as “…those who aren’t represented by a lawyer and denied refugee protection have a better shot at being granted an appeal — and another hearing — because they can claim they weren’t given a fair shake.”

While this may be true (I don’t profess to any expertise in refugee law), one might instead (or also?) take the view that those who are competently represented in the first instance are less likely to need to appeal, if there is indeed merit to their claim.

Central to all of this discussion is ensuring the protection of the interests of those making claims for asylum, rather than the protection of lawyers’ monopoly on legal services. So far, the voices of those seeking access to justice, and in this case, protection from being returned to their country of origin, have not been heard in this conversation, at least not in the media coverage.

As in every area of law in which there are gaps in access to justice, the search for solutions must include thoughtful consideration of the needs of those facing barriers. While sometimes these will overlap with the expectations of lawyers, more often than not there is a gap between the two; hence, the access to justice gap that just keeps growing larger while lawyers across the country debate the necessity of incursions upon their monopoly.