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Harnessing Technology to Advance Community Justice: Time for New Approaches

Author: David Wiseman, Julie Mathews (with assistance from Samantha Hills) Guest Blogger

Ongoing barriers to access to justice remain a persistent problem throughout our legal system, particularly for those living on low incomes. In law, as across all areas of society, there is much interest in the potential to harness technological innovations to help address those barriers. Legal regulators in Canada and abroad are taking a variety of approaches aimed at unlocking the potential of technology-based legal services, while also continuing to protect the public from harm. Efforts in Canadian provinces, however, do not seem to be generating initiatives that will benefit people most in need of more accessible justice. We think it is time to consider a more proactive approach.

This past summer, we completed a research report, Thinking Outside the (Sand)Box: Advancing Smart Legal Forms for Community Justice, for Community Legal Education Ontario (CLEO), funded by the Law Foundation of Ontario. For the purposes of our report, “smart legal forms” refers to dynamic digital tools that enable people to complete legal documents online, with or without assistance. These customized technology tools enable people to generate legal (or law-related) forms and documents for legal actions and transactions. Smart legal forms first emerged over 20 years ago, and have since increased in number, function, and sophistication. They are becoming more widely available to the general public, and are increasingly being used as a means for creating and navigating court forms and other legal documents.

Our report explores options for increasing the availability of effective smart legal forms for people we describe as “priority justice-seekers”, that is, justice-seeking people living on low-incomes and/ or who are members of communities experiencing discrimination or other social disadvantages. As tenants, precarious employees, newly-single-parents, refugee claimants or in many other capacities, these people frequently face law-related problems that affect their fundamental human rights and basic human needs. Improving access to justice for justice-seekers in those contexts ought to be a priority. Increasing the availability of effective smart legal forms, and thereby harnessing the technological developments and innovations they entail, is one way to move forward on this priority.

Our report built on previous work we have done together on the good quality – and essential – assistance provided by frontline workers at community-based not-for-profits to clients who have law-related problems. We call this type of assistance “community justice help”. Our reports recommend that community justice help be enabled and supported, including by legal regulators, in the interest of increasing access to justice for priority justice-seekers. Indeed, we saw a potential synergy between community justice help and smart legal forms, in the sense that frontline workers could assist their clients in completing smart legal forms.

The current landscape

Currently, a range of smart legal forms are offered for use by the general public by both for-profit and not-for-profit entities in Canada and the US. These are part of an ever-changing broader landscape of digital legal tools that, in Canada, is annually inventoried by Amy Salyzyn. A for-profit entity that focuses on smart legal forms for a range of legal matters in both the US and Canada is LawDepot. There are also single-area for-profit entities in Canada, such as willfull., which offers smart legal forms for wills operating under the regulatory sandbox frameworks in both British Columbia and Ontario. Both of these entities charge fees for the use of their tools and forms.

In the US, the most active provider of smart legal forms intended for priority justice-seekers is Law Help Interactive (LHI), using and working in partnership with A2J Author. And Ontario is host to the leading not-for-profit provider of smart legal forms in Canada, CLEO, who uses A2J Author to offer guided pathways  for use by the public, and particularly by priority justice-seekers, in several areas of law.

Learning from experience

Drawing on experience in Canada and the US, our report explored what makes smart legal forms effective for priority justice-seekers. We also canvassed experiences with various regulatory approaches and considered the extent to which they are fostering development.

Our report identifies three key elements of what makes smart legal forms effective for priority justice-seekers:

  1. They are accessible and actionable by priority justice-seekers,
  2. They embody ethical practices and appropriate protections, to safeguard users and minimize risks of harm,
  3. They are responsive and relevant, responding to priority justice-seekers’ needs and the context of their lives.

A problem for providers of smart legal forms is that they are vulnerable to being regarded by legal regulators as providers of legal services and, in turn, vulnerable to regulatory intervention on the basis of engaging in the unauthorized practice of law. This potential for regulatory intervention is often justified as a measure to protect the public from harm. We acknowledge this concern. However, in our research on smart legal forms, we did not find a body of complaints that would indicate significant evidence of harm to the public from the provisions of these tools. Other reports we reviewed echoed this, finding that reported consumer harm from use of online legal services is no greater, and if anything relatively less, than harm associated with regular legal services (and the risk of harm from use of online legal services has to be balanced against the harm caused by taking no action at all or the risk of harm from unassisted self-help).

Many legal regulators, cautious about encouraging smart legal forms activity, have set up regulatory sandboxes as a controlled environment for promoting their creation. These sandboxes allow participants to develop and test legal innovations under regulatory supervision and currently exists in Ontario, Alberta, British Columbia, Utah and the United Kingdom. All of the sandboxes are open to both for-profit and not-for-profit participants.

Our analysis of these various sandboxes revealed that while there are many interesting smart legal forms services being developed, most do not meet the elements of effectiveness we refer to above. In particular, most are being offered by for-profit entities and therefore use of the service is largely fee-based.

Moreover, these services lack responsiveness to priority justice-seekers because they have not been designed with their distinct needs in mind. (As a report for the American Bar Foundation by Rebecca Sandefur has shown, this design-deficiency issue is a wide-spread problem in the broader area of public-facing legal technology apps.) It was only in Utah that we could identify not-for-profit sandbox participants developing innovative services that would be effective for priority justice-seekers. Interestingly though, their service innovations provided legal assistance in the form of community justice helpers, whom they trained and supported in the areas of housing, medical debt and domestic violence. Their help included assistance with completing legal forms, some of which might be online, but the projects did not focus on developing smart legal forms themselves.

The establishment of regulatory sandboxes is therefore not an approach that is producing significant gains for priority justice seekers in relation to smart legal forms. An alternative approach has been taken in Texas, where the definition of the practice of law has been amended to explicitly exclude computer software products, so long as they “clearly and conspicuously state that the products are not a substitute for the advice of an attorney”. However, we did not come across evidence that this allowance has spurred the development of effective smart legal forms for priority justice-seekers in Texas.

An alternative approach has existed in British Columbia and some other Canadian jurisdictions for many years, namely, an authorization for legal services of any type to be provided by anyone (whether a licensed legal professional or not) so long as they are provided without expectation or receipt of a fee, gain or reward from the recipient of the services. This authorization pre-dates regulatory interest in spurring innovation in legal services, yet it could be relied upon by not-for-profit providers of smart legal forms. However, our research did not reveal any deliberate reliance on this authorization to do so and, indeed, we did not come across activity by not-for-profits to develop smart legal forms for priority justice-seekers in any Canadian jurisdiction where this authorization exists.

Our recommendations

Our report makes several observations. Two are key to our recommendations:

  • The presence or absence of a profit motive correlates to the extent of development of smart legal forms for use by the public, including for priority justice-seekers
  • Regulatory sandboxes as well as alternative approaches have generally failed to spur a significant level of development of smart legal forms that are effective for priority justice-seekers

Based on these and other observations, we recommend action on two complementary pathways to spur the development of smart legal forms that are effective for priority justice-seekers. Along the first pathway, action would involve legal regulators providing clarity and certainty that this activity, at least when undertaken by not-for-profit entities, will not be subjected to prohibitory regulatory intervention on the basis of unauthorized provision of legal services. Along the second pathway, action would add a proactive dimension, by providing tangible and significant support for developmental activity through the provision of financial subsidies, technological assistance, and other resources, including fostering of knowledge-sharing across the for-profit and not-for-profit entities active in this area.

The pathway of proactive supports could also include the collaborative development of Canadian guidelines for effective smart legal forms. This could follow the lead of a group of professors at the University of Ottawa who developed recommended best-practices on privacy for direct-to-public legal apps. Similarly, and more broadly, the American Bar Association (ABA), has already formulated Best Practice Guidelines for Online Legal Document Providers. Interestingly, and in keeping with our recommendations, an impetus for developing the ABA Guidelines was a belief that further regulation was not the answer.

By rethinking regulatory approaches and fostering innovation in the development of smart legal forms, we can help bridge the gap in access to justice for priority justice-seekers.

Comments

  1. Thank you for this insightful work and clear analysis and recommendations.

  2. Perhaps you should take a look at the forms and information developed by the Legal Information Society of Nova Scotia and the N.S. Supreme Court (Family Division) which, as part of an integrated service provides actual people to help people complete forms and understand the process involved.

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