Education, Unbundling, Pro Bono, Lawyer Surcharge, Judicial Intervention-What’s the Answer to Achieving A2J?

We know that too many litigants are forced to represent themselves, sometimes with some form of assistance. These are people who cannot afford a lawyer and do not qualify for legal aid. (I am concerned here with people who would prefer to have a lawyer rather than those who want to represent themselves.) They may not even become litigants, but, where they are able, give up the opportunity to seek the justice they believe they deserve. They may then, legal problems left unresolved, find themselves spiraling downward into other problems. We know all this. But what we don’t seem to know is how to deal with it — or at least, we’re not prepared to do what is necessary. I suggest that the reason, despite the many ways we try to provide access, some of which I refer to below, is that we think about this as an individual, rather than societal, problem. Until we reconceptualize the problem — and, perhaps, more difficult — respond appropriately, the challenges facing and posed by unrepresented litigants will remain.

Long recognized as a “duty” lawyers should provide to those who cannot afford a lawyer, lawyers offered pro bono services on an ad hoc basis, sometimes in cases raising significant principles, constitutional and otherwise. This is a fine thing. Today, however, structured or even institutionalized pro bono services have grown extensively, seen as a supplement or even a substitute for inadequate legal aid. And there continues to be encouragement for increased informal pro bono services on an individual basis or as required by law firms. The Law Society of Alberta has a category of practitioner labelled Active Member, Pro Bono Legal Services status.

On more than one occasion, Chief Justice Wagner of the Supreme Court of Canada has suggested that lawyers undertake more pro bono cases, indeed predicting in an interview with The Lawyer’s Daily, earlier in February, that “Now you will see more and more law societies who will require that part of being a lawyer is also giving some pro bono work, and that’s very good.” In fall 2018, the Chief Justice spoke at the National Pro Bono Conference where according to a report in the Vancouver Sun, he said lawyers must “integrate pro bono work into the fibre of the profession.”

Others have argued for lawyers to pay a “subsidy” to the legal aid system, perhaps through their fees to the law society. One person pointed out to me that lawyers have a monopoly on providing legal services (paralegals are permitted to offer a more limited range of legal services) and therefore it is not unreasonable that they should contribute to the provision of services to those who cannot afford lawyers. There is something to this argument, but as I point out below, such a surcharge would have an uneven impact on lawyers who practice different types of law and serve different communities.

Judges are expected to intervene to ensure that litigants representing themselves receive a fair hearing and a failure to do so may result in the decision being overturned. In Moore v. Apollo Health & Beauty Care (2017), the Ontario Court of Appeal held that a judge who did not ask sufficient questions to understand the position being put forward by a self-represented litigant suing her employer for constructive dismissal and other damages. The judge denied Moore’s claim for certain damages because he had concluded that she had abandoned the claim. Although the judge did take actions responsive to Moore’s status as an unrepresented litigant, he did not meet this requirement: “Where the evidence of a self-represented party raises a question in the trial judge’s mind about the specific relief the party is seeking, a trial judge must make the appropriate inquiries of the party to clarify the matter.” (para. 47) The Court explained,

[48] Deputy judges of the Small Claims Court operate under significant time and volume pressures. As well, they daily face the challenge of trying to modify an adversarial civil litigation process historically predicated on representation by counsel to the increase in self-representation by parties. Nevertheless, such is the new reality. And it often requires a trial judge to take the time to ask those few extra questions to nail down, with clarity for all, the claims of the self-represented person upon which he will adjudicate. Trial fairness requires no less.

[49] In the present case, the trial judge did not make those clear, unambiguous, and comprehensive inquiries. As a result, he proceeded on the erroneous basis that Ms. Moore had abandoned her claim for Unpaid Wages, while Ms. Moore – quite reasonably – thought she had done no such thing. As well, the trial judge failed to inform Ms. Moore clearly that he would not consider her claim for Unpaid Wages, which she had just spent a considerable amount of time reviewing for him. His failure to do so resulted in an unfair trial.

The Court of Appeal in Moore referred to and relied on the Canadian Judicial Council’s Statement of Principles
on Self-represented Litigants and Accused Persons, to which the Supreme Court of Canada gave their imprimatur in Pintea v. Johns, a 2017 case. The Principles were developed in 2006 and are intended to apply to “judges, courts, members of the Bar, legal aid organizations, and government funding agencies [who] each have responsibility to ensure that self-represented persons are provided with fair access and equal treatment by the court” (p.1) Judges in particular should ask whether self-represented litigants are aware of their procedural options and furthermore, “judges may explain the relevant law in the case and
its implications, before the self-represented person makes critical choices” and [i]n appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the court” (p.7).

Courts and others make major efforts to “educate” unrepresented litigants about the legal system by providing information about procedure and substantive law. The most significant entity providing resources about and for self-represented litigants is the National Self-Represented Litigants Project, but there are other organizations that provide information in a wide range of legal areas, such as Community Legal Education of Ontario.

Unbundling or limited scope retainers, recognized since 2011 by the Law Society of Ontario and subject to the Rules of Professional Conduct, are another way in which people who cannot afford lawyers may obtain some legal assistance. They may receive assistance in relation to a particular part of their case or with particular tasks that are required and then undertake what needs to be done on their own, perhaps receiving further assistance down the road.

In short, there are many ways people who would like the assistance of lawyers but who cannot afford legal fees (and are not eligible for legal aid) may obtain some form of legal assistance. The recognition that people ought to have access to the law has meant that individual legal services providers, judges, courts as an institution and law societies have all increased activities that provide more available services or have changed their practices in order to achieve this objective. Yet there are difficulties with these approaches.

Not all lawyers can afford to provide pro bono services; indeed, those that regularly provide services to low income clients are less likely to be able to do so on a pro bono basis than would lawyers in larger firms serving, for example, corporate clients. This does not mean they do not do so, just that the financial burden that falls on them is greater. Yet lawyers in the larger firms are less likely to be familiar with the circumstances and law applicable to those who generally speaking cannot afford lawyers. While unbundling is praised by those who argue, not without some justification, that some representation is better than none, it does pose difficulties not only for lawyers who may not be clear on what assistance someone has previously received, but also for the litigants themselves who may not know when they need help and when they can handle things themselves. Unrepresented litigants relying on information may find themselves facing procedural hurdles or unexpected substantive issues for which they had not prepared without a general legal experience to call on. We’ve somehow developed the idea that people can become their own lawyers. People face all kinds of challenges that mean it is particularly difficult for them to “act the lawyer”, whether low levels of education, lacking sufficient familiarity in English, disabilities, among others, but we can’t seriously expect that someone whose “training” has been focused on a particular problem can actually address broader issues that might arise.

And here is where we expect judges to help. I recall years ago judges talking about how difficult it is to know where the line is before one becomes “too helpful” and clearly, if judges’ decisions will be overturned because they did not help enough, it becomes harder still. It may seem that a judge cannot be too helpful to a litigant without the resources to represent themselves, especially if the individual has, for example, language difficulties, when the other party has legal counsel. But there are three risks: one is that “going over the line” may backfire in that the judge may be (wrongly) perceived as an advocate; another is that the unrepresented litigant may become reliant on the judge; and the third is that an unsuccessful unrepresented litigant may blame the judge. (These possibilities in addition to the common perception by the other party that the judge is too helpful to the other side, especially if his or her lawyer does not explain the situation adequately, or a questioning by a perhaps unsophisticated other party, “why do I need a lawyer if the judge can help me”).

There is one problem transcending all these different ways of trying to increase the number of people who have at least some assistance in obtaining access to the legal system, some form of legal justice. It is that we treat access to the legal system almost entirely as an individual problem. The exception is the community legal clinic system, which serves communities of low-income people requiring legal help. Class action cases are also intended to respond to the problem facing a particular group of people. But most legal problems are addressed on an individual basis because they concern an individual, even when others are affected, as is so often the case.

However, the consequences of the failure to address many legal problems are societal, such as more people without housing, more people relying on welfare, more families in emotional or financial distress and so on. Nikki Gershbain, then the national director of Pro Bono Students Canada, makes this observation:

Ignoring or abandoning a legal problem not only means someone’s rights don’t get vindicated: unresolved legal issues tend to spiral and create other social problems. Left untreated, legal problems can create mental illness, health issues, loss of employment, relationship breakdown, precarious housing, bankruptcy, violence, loss of custody, and homelessness.

Beyond that, fair and equitable access to the legal system, recognizing that just about all legal problems require legal assistance, is a criterion for a just society. Without recognizing the societal nature of legal access, however, we will not be prepared as a society to allocate the financial resources required. Rather, we’ll continue to expect that a patchwork of various “answers” and help can provide an appropriate level of access to justice.