Much time, effort and funding has been devoted in recent years to trying to increase access to the legal system. At the same time, there has been a movement to “de-expert” or diminish the expertise of lawyers, as is true of many areas of life (everyone can be a journalist, everyone can become famous on social media, educators rely on what their students say they should teach, sometimes I think anyone can become a successful singer, at least to my tone deaf ear), even if not all (not everyone can become a baseball player in the major leagues or win a marathon). At the same time, institutions are losing their lustre, revealed as built on outmoded ideas and conduct. Yet we see what can happen when institutions are ignored or evaded in a slide towards autocracy. As we unpack institutions to find their best parts, I suggest that the role of lawyers in serving the legal system’s fundamental contribution to the institution of democracy is worth preserving and making more accessible.
Many people think of lawyers as representing criminal defendants or clients in civil cases, whether corporations, family members, former employees dismissed from their jobs or insurance companies who have taken over cases of individuals injured in motor vehicle accidents. They think of lawyers as acting in a real estate deal, making wills or powers of attorney. They see the names of lawyers in the media, who have represented very rich clients; sometimes they see the names of lawyers who have acted pro bono on behalf of someone with an unusual or particularly emotive case. And on and on.
No one really expects the heads of corporations in complex restructuring cases to represent themselves. No one expects the CEO of an oil company litigating about environmental restrictions to represent themselves. But with a little bit of extra help — some on-line information, a chat with a lawyer here and there, extra questions from the judge — we assume too readily that litigants (too often women) in family disputes are able to represent themselves.
We can think of all kinds of examples of areas of law, certain kinds of disputes or clients when we wouldn’t for a minute expect anyone other than the lawyers to be preparing and arguing the case. And we can think of all kinds of examples of areas of law, certain kinds of disputes or clients where we have reached the point of no serious expectation of anyone other than the clients themselves trying to navigate their way through the morass of law governing their situation. Of course, we have instituted all kinds of measures to try to even the playing field, of ensuring that people are not disadvantaged because they can’t afford legal assistance, whether a lawyer or, in certain circumstances, a paralegal.
In Canada and some other countries, there have long been efforts to provide legal assistance to people who cannot afford their own private lawyer. Legal clinics, criminal duty counsel and criminal law certificate programs, advice bureaux (in the UK and elsewhere) are one approach. Specialized non-profits have developed supports for those involved in the legal system, such as victims of intimate partner violence or sexual assault, or for persons whose first language is neither English nor French, among others.
Some of the efforts in making the legal system more accessible have involved making the system simpler (through plain language or changing processes), some to increasing the information available to people who cannot afford lawyers (including those allowing litigants to interact with the information), some to restructuring the court system to include more non-trial procedures, some to greater use of technology, including algorithms or the less technologically advanced child support tables.
Others have been more devoted specifically to addressing the difficulties faced by members of particular disadvantaged groups, whether basic physical changes to accessing courthouses or more responsive judicial approaches to witnesses with disabilities, the introduction of eagle feathers for “swearing in” witnesses, training police officers to deal with intimate partner violence, training of judges and prospective lawyers to understand the specific circumstances of many members of equity-seeking groups, Gladue courts and many more individual changes across the various aspects of the legal system, including those relating to judges, lawyers, law students, law enforcement and laws themselves.
Despite it all, we are still trying to find answers to the difficulties facing too many people interacting with the legal system.
Some of the responses to lack of access to justice rely on lawyers (or paralegals) and others are based on the assumption that lawyers are either not required, they’re required just a little bit or can be replaced by non-legally trained advisers (I mean “replaced” here, rather than supplemented or partnered with) or not by people at all, but by, in effect, machines. Indeed, lawyers may be considered a hindrance, carrying baggage that limits their focus or enhances their sense of superiority over their client. Now, in certain places and at certain times and with respect to certain lawyers, all of the above may be true — or not.
You often hear from those arguing for the place of legal expertise that you’d never take out your own appendix (and if you did, some filmmaker would probably make a movie of it). Yet sometimes we treat legal representation as if you could remove your own appendix if you had a leaflet explaining how to do it, could check on the internet for a definition of the medical terms and a picture of a scalpel, maybe call up a surgeon first for a description of how to do it and make sure you had a block of wood to put between your teeth before you start the first cut. Suddenly you run into a complication (assuming you recognize it is a complication): how would you handle that? So we can put a band-aid on a cut, ice a sprained ankle, maybe know what’s wrong when our right arm tingles, but really the ability of most of us to function in the world of medicine is pretty limited and the lack of properly trained medical personnel can have dire consequences for communities and entire countries.
I’d argue somewhat the same argument can be made for lawyers or, to put it more broadly, properly trained legal personnel. And I’d argue further that there is another way of looking at law and lawyers that transcends the place of lawyers in particular disputes (but not the concept of dispute resolution) and that contributes, not detracts, from increasing access to justice. And by “lawyers”, I mean people who have been trained to understand what the law is and how it works, how laws relate to each other, how to navigate the legal system, how to understand the role of other legal actors, how to develop legal strategy, how to find out what they don’t know, how to retain lawyers more specialized than they if they need to, how to learn quickly about matters other than law and, yes, how to discover the aspects of a person’s problems that can be addressed by the law and those that cannot, among other things. And good lawyers know how to assist clients to find the help they, their lawyers, cannot provide. (The need for lawyers to learn narrow areas of expertise in depth came home to me when I was a student and I sat in while, over a sandwich lunch, the lawyer I was paired with in a clinical course met with a jeweller, listened, asked questions and then went into court and did a cross-examination as if he himself were in the jewellery business.)
The benefit of all these skills is that when they are used appropriately, they can help the legal system run smoothly, they can bring about the best result for their client, recognizing that the other client(s) also want the best result. Their involvement means other actors can play their roles more easily: judges do not have to determine how far they need to assist parties without lawyers, as they are now required to do, for example. While understanding and recognizing the emotional elements of a client’s problem (particularly relevant in some cases, rarely completely missing regardless of the area of law), they do not — or should not — be driven by it as a self-represented client may be tempted to do. (Not that lawyers always appreciate this point. It’s one thing to have a particular view of the world — discrimination is a bad thing — and represent clients on one side of the matter — those who believe they have been discriminated against — and another to lose sight of the reality of the situation.)
Lawyers as a profession play another role, one fundamental to our democratic institutions. In the most straightforward situation, lawyers represent government and those opposing government or seeking redress from government in constitutional disputes. And here we begin to understand the importance of the independence of the profession. It can be as important as the independence of the judiciary. Lawyers represent or oppose government in many ways: they work for government; as labour and employment lawyers, they represent employees who believe they have been ill treated by government as employer; they may represent people denied benefits; they represent people charged with a crime who have the power of the state against them; they bring constitutional challenges to government legislation and actions; and more. When opposing government, they must not be concerned about retribution by government.
However, the importance of those skilled in law lies not only in these direct or explicit constitutional matters. It lies also in the very system of laws and processes that are part of the constitutional framework: these laws are effective only when remedies are available for when they are abused, whether by private citizens or government; without a skilled body of people who understand them and who understand the processes under which action taken under law can be applied, laws are ripe for abuse by those who do know how to wield them.
When I taught law, students would complain about having to learn “rules” or “technicalities”, because weren’t these the very things that allowed those in power to use their power oppressively? My answer was that those in power don’t need rules or technicalities to use their power oppressively, although they prefer to dress it up as law; but those who are oppressed need the law, need to know how to use the rules, need to know them well enough to use them in innovative ways, to reach the subtext of law and challenge it.
We have a legal system that should allow everyone to vindicate their rights, as well as define new rights. We say it should and not every country can even or wants to make that claim. Our own system doesn’t live up to the claim, of course. There are many barriers to achieving that aspirational goal. Even so, as with other elements of our democracy, we should continue to work towards achieving it. For a body of specialists to contribute their expertise in achieving that goal, there are several preconditions.
It’s been 15 years since Roy Millen argued that the independence of the bar should be recognized as an unwritten constitutional principle (see here). I do not — or need to — go that far, but Millen’s discussion of the jurisprudence that extols the importance of the independence of the bar is important to appreciating the importance of the principle that lawyers not be beholden to government: it is fundamental to how they can perform their constitutional role. Again, this may be relevant to other issues, such as who should own or govern law firms or who should regulate lawyers’ conduct, also issues I do not address here. (On alternate business structures for law firms, see, for example, here; on views about self-regulation, and alternatives to self-regulation, see here and here.)
Someone like lawyers, and so why not call them lawyers, are crucial to access to justice, even though today the high cost of legal representation is considered one of the (many) barriers to access to justice. Much of the work dedicated to helping people access the legal system sometimes seems to have given up on making access to lawyers affordable. Expansion of legal aid, protection and more legal clinics and other ways of achieving sustainable access are crucial (relying on pro bono representation or limited retainers is not sustainable if access is to be effective, especially in more complex cases affecting “ordinary” people).
There is one more factor that needs to be addressed if lawyers are to appreciate the role they play in maintaining an effective and eventually (?) just legal system, even though they may be retained in the most conventional and stock dispute. That is the education of the legal profession. As a counterpoint to law schools’ academic bent, it’s been many years since they began to offer and even require some form of practice education, and that combination is a good thing. Law students often have the opportunity to learn how to “read” their clients, how to appreciate their clients’ real concerns and the other problems they face influencing their legal problem, all skills a good lawyer needs.
Now, though, we are beginning to see law schools that emphasize their practice education (for some of us, a little too close to the trade school notion) and this may seem more relevant to students than the role our legal system plays in maintaining or improving our democracy. Law schools must require students to learn about their role in the democratic system, how they are necessary to upholding a fundamental premise of that system, the promise (I emphasize “promise”) that rights can be vindicated in a systematic and reliable way, that the system is flexible enough to acknowledge new rights.
Regardless of whether we still identify the predominant way of adjudicating disputes as two or multiple parties arguing their case against each other in front of an impartial adjudicator, with some attending methods of finding agreement (and whether this is the best way is subject to debate), we nevertheless can benefit from the involvement of a group of practitioners who have learned to see the particular dispute within a broader framework.