What If…

In 1998, after five years in private practice, I took a job in public legal education and was soon thereafter introduced to the problems many people have in accessing justice, whether in terms of working effectively with their lawyers, finding a lawyer, paying for a lawyer, or trying to address legal issues without the assistance of a lawyer.

Since that time, I’ve continued to work and volunteer in the non-profit legal sector, frequently with a focus on providing increased access to justice, at least for the lucky few. Next month I’m moving into an interim position directing a pro bono legal clinic. The workload there just keeps expanding.

Seventeen years later – encompassing most of my career, to date – the problems just keep growing. Fewer people are able to find and afford the services of a lawyer today than at that time. Legal Aid plans have been trimmed to the bare essentials. Countless online resources, court information booths, and DIY supports now supplement telephone and drop-in information services. More and more individuals are appearing in courts without legal representation.

I didn’t plan to make a career of access to justice work. Many of the changes required today, were known to be required 17 years ago or more, yet looking back, I can’t help but wonder at the lack of progress. Indeed, I am dismayed that despite steps forward, the access to justice sector faces a greater demand for services than ever before. And that demand just keeps on growing while resources remain stagnant or decline.

All of which brings me to wondering, what if…

  • What if courts administration took seriously the well-founded complaints that their processes create barriers to justice and are, in many cases, much too complex and require significant overhaul?
  • What if law schools prepared students to deliver legal services with the assistance of technological innovations and with clients’ needs at the centre of every interaction?
  • What if law societies made it more economically feasible for lawyers to work on pro bono or in the access to justice sector by providing practice fee rebates or credits?
  • What if ethics committees were required to consider the impact of proposed rule changes on access to justice for those of middle and low socioeconomic status?
  • What if law reform commissions made enhancing access to justice a criterion in their deliberations and recommendations for changes to our laws?
  • What if every judge and court staffer were sensitized to the myriad of issues facing self-representing litigants at every step of the legal process, from archaic document formatting requirements to inflexible scheduling to the attitudes of counsel opposing a SRL?
  • What if all lawyers considered it their professional duty and obligation to provide legal services to those unable to afford to pay for those services?
  • What if governments at each level recognized that unmet legal needs create a myriad of other problems for individuals, families, communities and businesses, with spiralling costs attached?
  • What if the legal profession truly valued those who work everyday on the front lines of access to justice – whether in legal aid clinics, pro bono clinics, public legal education or the early resolution services sector?

What would you add to the What ifs?


  1. RE: “What would you add to the What ifs?”

    What if affluent rogue doctors (the woefully inept and sexual predators like to one featured in today’s National Post) were made to pay their own way rather than enjoy unlimited, tax-payer paid CMPA lawyering. Over-funding doctors’ access to justice via the Ontario government nearly $200 million cheque to the CMPA undermines justice (as has been pointed out by more than one judge in more than one province). On the other hand, under-funding legal aid undermines justice. From an access to justice perspective the (partial) solution is drop dead obvious – quit using taxpayer dollars to provide affluent doctors with taxpayer subsidized Cadillac lawyering and instead use that $200 million to help alleviate some of the problems you list – such as using the $200 million (Ontario’s alone – but then add the contributions of the other provincial governments to CMPA) to provide the poor and the destitute with better access to legal aid. Instead we see the rich and the politically connected medical community get welfare – in the form of taxpayer-paid CMPA lawyering – while the poor are left to go begging. Re-directing Ontario’s roughly $200 million per year contribution in this way is “just”. So why hasn’t a single lawyer or lawyerly report on access to justice ever tossed this idea out as a good first step?

  2. What if the provincial governments quit turning over hundreds of millions of dollars of taxpayer money so that affluent doctors (like the self-confessed sexual predator chronicled in today’s National Post) can enjoy unlimited, free CMPA lawyering. Doing so undermines justice – as has more than one judge observed. On the other hand, chronic provincial under-funding of legal aid undermines justice. Why not end the over-funding of CMPA lawyering and re-direct those provincial dollars to alleviate one or another of the problems you list? Why not end the annual government welfare provided to doctors in the form of cheques to the CMPA – let doctors pay their own legal freight – and send that money to legal aid instead? Alas, doctors are politically connected and the poor aren’t.

  3. What if we quit providing millions of dollars of free lawyering to errant, wayward and/or frolicking judges (see below) and instead used that money to make access to justice a little more accessible to the middle class who have been priced out of the justice market. The justice system’s insiders get free access to justice while the outsiders get none. Why haven’t any lawyers suggested ending unlimited legal funding for judges? No wonder there is no money for legal aid – or for court interpreters – or for whatever when the judges and CMPA go through taxpayer money like it grows on trees.

    News / Canada
    Public pays millions for legal fees of federal judges under investigation
    Judges in trouble have unlimited funding to fight disciplinary action against them. The Lori Douglas inquiry cost taxpayers $4.5 million.

  4. The capacity of agencies offering services pro bono could be significantly increased by bringing on board competent non lawyers, who I suggest (speaking from personal experience) might be especially interested in and committed to public interest issues. I was doing a little Net searching earlier today on “public interest standing” and “lay advocacy”.

  5. ABS’s v. Unaffordable legal services problems, what ifs: the former has been quickly provided a published LSUC Discussion Paper (Sept. 24/14), but the latter has been ignored for decades. Such priority suggests self-interested promotion by the benchers of the ABS Committee. The Discussion Paper, written by Committee members, is advertising, not a neutral, balanced presentation of issues and facts. That suggests a mixture of motivations: (1) the benchers using the ABS proposals as a way of appearing to solve the problem, which ABS’s can’t solve, and are not intended to solve; and, (2) the big law firms having interests in the ABS proposals that conflict with those of smaller firms.
    Where in the Discussion Paper is the agenda for deciding LSUC’s position, and the details of the contracts used to enfranchise the strings of law firms that the Discussion Paper refers to (p. 11) as bringing advantages to such enfranchised law firms? ABS’s can’t solve the problem because they won’t create the specialized support services that have the 2 factors necessary to solve the problem: (1) a higher degree of specialization than any law firm has; and, (2) the scaled-up volume of production that produces the economies of scale that no law firm is capable of achieving. Such support services can be created for every kind of work or service that law firms find difficult to make earn a profit, e.g., legal research and electronic discovery. All of competitive manufacturing of goods and services has moved to a support-services method of production, but not the legal profession. Instead, the ABS investors will: (1) negotiate with law firms individually while they are desperate for clients; (2) enfranchise strings of law firms; then, (3) grow to obtain a dominate position in the legal services market; and then, (4) control the prices of legal services.
    The legal profession in Canada can provide itself with everything that the ABS proposals can provide, and do it without selling its independence and professionalism. We can negotiate as a single unit to obtain the automation of routine legal services, and obtain changes to law society bylaws allowing related non-legal services to be provided with legal services. We don’t need ABS’s.
    See my Slaw posts, “LSUC’s Worrisome ABS Proposals” (Nov. 25, 2014); and, “Legal Advice Services Cannot Be Automated by Alternative Business Structures” (Oct. 9, 2014).