The Action Group on Access to Justice (TAG) has collaborated with Community Legal Education Ontario (CLEO) on a number of initiatives to help develop awareness and implement programs that reflect community-specific needs. Julie Mathews, the recipient of the Law Foundation of Ontario’s fellowship grant, will be presenting her research during Ontario’s Access to Justice Week with Professor David Wiseman at the uOttawa Faculty of Law who is supporting this research. Offering us a sneak peek, Julie shares her thoughts and findings on the community justice help below.
The importance of drawing a clear line between giving legal information and legal advice is accepted wisdom by most of us who work in the justice sector. Only people who are licensed as lawyers and, in some cases, as paralegals, are able to give “legal advice”.
If you aren’t licensed, you can give information but not advice – this is deemed essential for the protection of the public. Understanding and interpreting the law, and advocating for a client, is a specialized field that requires many years of training, high ethical standards, and regulation by a professional body. After all, people’s livelihoods, families and liberty may depend on your assistance.
Makes good sense, right? Well, yes – to an extent. But what if we’ve reached the point where protecting the public is coming at the expense of people being able to get the help they need – indeed, at the expense of access to justice?
Community workers, on the other hand, can only give information about the law – not advice – to people who come to them for help with their problems; those problems often come as a cluster of problems, including a legal element. Research commissioned by the Law Foundation of Ontario shows that many people in Ontario turn for assistance to someone in their local community they trust – staff at a settlement agency, women’s shelter, or community health centre, for example.
The Law Foundation-commissioned research highlights the extraordinary efforts taken by community workers to respond to their clients’ needs: they go to great lengths to give guidance, tips, good referrals, and other forms of support. But their efforts are often hampered by the lack of clarity on how far they can go in giving help without crossing the line into legal advice and risking an infraction from the regulator and, in some cases, loss of government funding. This uncertainty creates a quiet but pervasive chilling effect.
I work at Community Legal Education Ontario, and part of our work involves supporting community workers to help people with legal problems; we train them on the “dividing line” between legal information and advice and how to stay on the “right” side of the divide. But I (and others) have often been struck by a paradox: community workers are hampered in their efforts to help people with legal problems at the same time that so many people can’t afford or otherwise can’t access the help they need from licensed legal professionals.
Exploring the dividing line and changing our thinking
About a year ago, I began to explore the dividing line in greater depth, supported by a Law Foundation fellowship. Does the current line – to the extent that it can be clearly defined (and we all accept that it is blurry) – make sense, from an access to justice point of view and, if so, on what basis? If our insistence on keeping community workers from crossing the line stems from a concern for protecting the public interest – and I think it does – what is the evidence for that? Professor David Wiseman at the uOttawa Faculty of Law is partnering with me on this exploratory work, and we have been supported by several thoughtful uOttawa law students over the last year.
Our research took us in numerous unexpected directions. We spoke with people from a number of not-for-profit, community-based organizations who help people with multi-faceted problems, including those problems with a law-related aspect. We looked at the “good” practices that they hold themselves to, and thought about their work in the context of the overwhelming need of many people in Ontario for help. And we looked at the quality assurance schemes – some mandatory, some not – that are adhered to in many sub-sectors of the larger not-for-profit world in Ontario.
On the more academic side, we looked at the regulatory schemes in Ontario and elsewhere that apply to the broader sphere of law-related help. We reviewed approaches in other provinces and countries for supporting people with law-related problems to get the help that they need: did they all follow Ontario’s approach, with its emphasis on the dividing line and the resulting need to “police” the line? And we reviewed studies that compare different forms of legal assistance and the impact on outcomes.
Our thinking has taken us well beyond our original focus on the dividing line and has gradually led us to a view that the dividing line is a bit of a red herring and should cease to be a rudder. Trying to categorize problems, needs and solutions as “legal” or “advice” risks missing the point (and fails to reflect reality); parsing language is what we were trained to do as lawyers but is woefully inadequate as a lens through which to approach the access to justice crisis.
Focussing on quality: equip rather than restrict
Instead, we propose that what matters is the quality of the support that community workers give: consideration of quality is the lens through which we should be viewing the question of “non-lawyer” (and lawyer) forms of assistance. And the evidence that we were able to gather suggests that, in Ontario, community workers have what it takes to give good quality help with the justice issues experienced by their clients and communities.
Indeed, we think there’s enough evidence – highlighted by our research but, much more extensively, by the research of others – to embolden us to argue that the current approach, based on the dividing line, is misguided; worse, it is hampering on-the-ground access to justice. And we think that a sound interpretation of the current Law Society of Ontario bylaws supports community workers in giving help with law-related problems as part of the day-to-day services they provide.
We have been gathering our thoughts together in a discussion paper that is forthcoming. In it, we propose that “community justice help” for life-affecting problems that include a legal element should be supported and assisted, rather than prohibited or discouraged. Bearing in mind the principles that underpin the regulation of the legal profession (and other occupations and professions), we focus on defining the key elements of “good quality”.
Our discussion paper proposes that an “equip” not “restrict” approach should be followed where community workers in the not-for-profit sector:
- have the knowledge, skills and experience to perform tasks that assist people in dealing with the legal dimensions of their problems and in navigating through relevant legal processes,
- are working within a client-protecting ethical infrastructure, and
- are providing support that reflects and responds to the justice needs of people in their particular community context; the holistic support they offer addresses community justice needs that are frequently unmet or underserved by the licensed legal professionals available in the community.
The discussion paper raises several questions, some of which we answer more fully than others. (That’s why it’s a discussion paper.) And we do not claim that this is the sole answer to the access to justice crisis. We acknowledge that some of the “bigger issues” – the critical need for legal aid, including for local legal clinics that work with their communities to address the most serious problems – loom large and demand correspondingly big attention, resources, and action. But ours is an achievable approach that we think can make a difference. Stay tuned…
Note: The discussion paper will be posted on the CLEO Connect website in November 2019.