Duty Counsel Un-Plugged: How We Need to Evolve Public Legal Services to Respond to the SRL Phenomenon

Duty Counsel Un-Plugged: How We Need to Evolve Public Legal Services to Respond to the SRL Phenomenon

In the course of the National SRL Study, I interviewed around a dozen duty counsel in courthouses across Ontario, Alberta and British Columbia.

I loved conducting these interviews. Duty counsel are incredibly dedicated to what they do and have innumerable frank and insightful observations to share in relation to my standard questions –  “What changes have you seen in the SRL population over the last 3-5 years?” “What is their (SRLs) most common frustration?” and “What is your greatest frustration in relation to assisting SRLs?”

These interviews – some conducted by phone, some in person – often lasted more than an hour and gave me incredible insights into the challenges faced by public legal services from the vantage point of those on the frontlines. Many of their comments have stayed with me.

So in this week’s blog, continuing our focus in May on enhancing public legal services (Action Step #4), I present for your consideration some of the most thought-provoking, down-to-earth, and perhaps controversial insights from these interviews. Read on for a real treat and perhaps an eye-opener.

1.So why are there so many more SRLs?

Duty counsel make no bones at all about this one – it’s about money and the cost of legal services.

There are those who not longer qualify for legal aid – “minimum wage is $21,600, the legal aid cut-off is $10,500.”

Then there are those who have used up their resources and still have miles to go – “You see the pleadings and you know a lawyer has been retained to do them- but they simply can’t afford to go past a set of pleadings”

And then there is the change in how people prioritize what they spend money on – “There’s a cultural shift in what’s regarded as a necessity” –  and in the era of free accessible legal information on-line, that does not include legal services.

2.The impact of self-representation is far-reaching and often under-estimated/ misunderstood

Working closely with SRLs, sometimes over extended periods of time, duty counsel may understand at a deeper level than any other system players the enormous impact that struggling through the legal process without counsel has on people. Several talked about how much this was under-estimated and misunderstood in casual stereotyping of SRLs as “over emotional” or “reactive”.

In fact, “(T)he emotional toll on these people working in the system is incredibly daunting…. the stories are shocking….. you have to realize that while we didn’t create the situation for these people, (what we have to do now) is to help them get out of it.“

3.We need system change/ something has to give

“The system does not work.”

There is a widely shared view among duty counsel that real system change is necessary in order to resolve the A2J crisis, with many framing this as a pressing moral issue  – “the present reality is that those with money can afford better justice.”

Legal services have to change – “the traditional retainer is not an option for most any longer, it needs to be gone. And looking in the phonebook for lawyers who unbundle services is like trying to find a needle in a haystack.”

Judges need to be different too. From the perspective of duty counsel, a large part this is attitudinal. “Judges need to be less afraid and roll up their sleeves and deal with the public. ….(J)udges need to be dealing with the human side first – keep the formality, yes, but be respectful of the human condition.” Some of this is about becoming more focused on settlement. “Instead of using an appearance to grind the case to the next frustrating step, it would be nice if judges would do more to make this end today, facilitating early resolution.”

In some areas at least, family adjudicative processes need a complete overhaul. “This should not be a legal process at all. We need to look at another way to resolve (eg) child protection matters, a family court judge not the right person… It would be better to have an administrative tribunal with experts.”

4.How best to use public resources 

In the meantime as the system lurches forward, here are a handful of short and mid term solutions most commonly mentioned by duty counsel.

a.Get in there as early as possible 

Many duty counsel complain that when they see SRLs their cases “(are) already too far gone”. People are caught in the vortex of the system and moving from step to inexorable step…

b.Structure time with each client differently 

Related to (a) – many duty counsel complained that the volume of SRLs and the limited resources of duty counsel means they see clients “…in 10 or 15 minute increments at a time of crisis, with their ex giving them the hairy eye in the hallway…”

Further, “(I)t’s very difficult to impart the complexity of a case in tiny, bite size chunks – the big issue is continuity.”

The issue here of course is how to use a finite resource – present public funding/ subsidy of summary legal advice and related assistance – most effectively.

Duty counsel talk about how they might develop ongoing relationships with SRLs – providing concrete advice to a SRL about what they need to do next, knowing they will see them again – in the meantime, here is what they can do for themselves. They talk about anticipating events, rather than simply responding to them. They talk about assigning longer time periods for meetings with clients (some questioned how much use it was to give a client 30 minutes of summary advice).

c.Provide SRLs with emotional support

Because they recognize the impact of self-representation ((2)), duty counsel understand the necessity of providing SRLs with resources to provide emotional support, in order that “our time with them can be better spent.” The time that duty counsel spends with each client could be more effectively used if “they could shed their tears prior to speaking with counsel with another professional.”

d.Enable SRLs to use existing mediation services

Duty counsel observe firsthand the suspicion and mistrust with which some SRLs regard mediation (and I heard about in interviews with SRLs). SRLs need far more orientation and support to be able to participate in existing programming, to which Legal Aid Boards are now committing significant funding. “You have to demystify it (mediation) – otherwise people aren’t going where the resources are.”

5.In conclusion: facing moral quandaries

Duty counsel work on the frontlines with SRLs and see firsthand the need, the hardship and (despite everyone’s best intentions) the sometime chaotic confusion that presently characterizes many of our courts. Some are asking themselves – am I really adding value here? How effective can I really be in the face of such challenges?

A couple of duty counsel spoke frankly about a controversial question – “How much effort should be put into persuading people to exit? How much should we be in the game of asking them to stop – like smoking and drinking – because it is bad for them?”

For others the scope of public legal services is also a moral question. “My colleagues and I have been discussing this for several years now. How much of what we are dealing with in family and child welfare is really public law that should be funded by the taxpayer? Where do we draw the line in providing public services for private conflicts?”

This debate may become increasingly important as change begins.

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