More Than Semantics

Are we actually making progress toward the outcome of increased access to justice?

Dan Lear doesn’t think so. As he noted in an ABA Legal Rebels blogpost this week, to date the evidence in the U.S. points to the ineffectiveness of access to justice initiatives. In his post Lawyers need to move beyond access to justice to close the “legal services” gap, Lear notes that this lack of progress is due in part to the fact that solutions are complex and challenging to implement.

He suggests that an important, though small step in the right direction would begin with a change in the semantics:

…[I]nstead of talking about an “access to justice” gap let’s switch the rhetoric and consider the “access to legal services” gap instead.

As Lear points out, not everyone who needs legal services requires the tools provided by the justice system. In fact, many don’t. What they do need are wills, help negotiating with a creditor, a template for a separation agreement or advice on a real estate purchase. They need unbundled services, affordable fixed fee arrangements and summary advice.

What Lear doesn’t acknowledge, and maybe that’s because his focus for this post is on lawyers, is that in the same way that not everyone who needs access to legal services requires access to justice, so also not everyone who needs access to justice requires legal services.

Some people with problems or issues in the legal realm need coaching, information, advocacy support or assistance with completing documents, for example, rather than legal services (by which I mean, services from lawyers). These are services that might more effectively be provided by trained paralegals, community advocates and others.

Lawyers are obviously the ones who need to address issues of gaps in accessibility of legal services. Many are already doing so through provision of pro bono legal services and financial support of pro bono clinics. Some are also taking steps to re-tool their practices to better meet the express needs of clients, using new approaches and tools that include unbundled services, assisted self-representation, fixed fee retainers and more.

More could be done and as Lear rightly points out, this isn’t best addressed solely through the provision of cheaper (or free) one-on-one legal services (which Lear goes on to describe as “staggeringly inefficient.”)

Like the situation Lear describes in the U.S., there remain multiple and significant gaps in access to justice across Canada, none of which seem to be shrinking despite increased awareness of the issues, better data and significant commitment of pro bono hours by lawyers.

These gaps in access to justice may be outside the scope of what lawyers can affect through changes to their own practises. Many of these issues relate, for example, to court processes, laws and regulations and limitations and restrictions on who can provide legal services and how.

But lawyers do have a role to play here too. Through their influential position in society, lawyers can have a meaningful impact on the access to justice discourse through lobbying of legislators, getting involved in and advocating for professional governance reform at the local level and, of course, through the electoral process.

As a starting point to address gaps in both access to justice and access to legal services, for example, lawyers might look to the information provided and questions posed in the excellent Canadian Bar Association Election Engagement Kit recently made available through Envisioning Equal Justice.

Lear concludes that:

There are pervasive legal access issues throughout the economy—from pro se litigants, to entrepreneurs who need business help, to families without wills or simple estate plans. This access gap is a significant problem for the legal profession and it won’t be solved overnight. It might not even be solved in our lifetime. But greater precision in how we talk about access challenges is an easy first step in the right direction.

Such easy first steps are important, but we must not stop there. We need to agree on so much more than semantics to achieve the dual outcomes of increased and more affordable access to both justice and legal services in our country.

The current federal election campaign provides a key opportunity for lawyers to shift the discourse and effect meaningful change towards greater access to legal and justice services. Let’s not miss this opportunity.