“Review announces sweeping changes in para-professional services for family law – help is on the way for families who cannot afford lawyers”
“Review backs status quo – says paralegals “not ready” to deliver family legal services, leaving family litigants with limited or no choices”
Submissions are now closed for the Ontario Family Legal Services Review, chaired by Madam Justice Bonkalo. Which headline will we be reading when the Review issues its September report?
Facing the problem
The Terms of Reference of the Bonkalo Review open with these words:
“Every day, more and more Ontarians are choosing to go to family court without legal help – either because they can’t afford a lawyer, or they believe they can manage on their own.”
These two reasons for self-representation – running at close to 80% in Toronto according to Ministry of the Attorney-General figures – are in practice closely intertwined.
“I can’t afford (can’t go on affording) $350 an hour for a lawyer. Surely it can’t be that hard to do this myself? There’s so much on-line these days, and I am an intelligent person. How hard can it really be?”
(Answer: very hard. Procedurally complex, culturally alien, and emotionally exhausting).
The argument for expansion
NSRLP’s submission can be read here. It calls for the careful but immediate expansion of para-professional legal services to family litigants. I have read a number of excellent submissions from others that make similar arguments. The reasons:
- Do the math
The most important argument for expansion is the acknowledged fact that more and more litigants are coming to family court in Ontario without a lawyer.
You don’t have to be an economist to connect the dots here.
Unless family lawyers immediately cut their hourly rate to a level considered affordable by most (working class, middle-class) family litigants, the expansion of other choices of services is the only solution. Para-professionals charge less, and more alternatives would create more competition and drive overall prices down.
- The public interest
Service to the public – competently handling their legal needs – is what justifies the legal services monopoly held by lawyers. This means that the legal profession is supposed to make choices about self-regulation that are good for the public not just good for themselves.
Clearly it is not in the public interest for up to 80% of family litigants – people who are already distressed, anxious, in crisis – to be navigating the notoriously complex family law system without expert assistance.
Nor is it in the public interest for a growing number of Ontarians to experience the legal system (including those charged with providing them assistance) as substantively inaccessible – and insensitive, unwelcoming and even hostile towards them and their interests.
Nor is it in the public interest for our courthouses to be a place of barely contained chaos, filled with people who need more help than court services staff can give them, and who stretch existing legal information and duty counsel services to breaking point.
- Family law cases are not a monolith
There is a wide range of assistance that can be offered to family litigants, depending on the complexity and level of acrimony of their case. As any family lawyer would tell you, it is a gross over-simplification to see divorce as a single, monolithic set of client needs and experiences.
In both the original Study (The National SRL Study 2013) and in our ongoing communications with SRLs, many have told us that their primary needs are for procedural assistance, including form completion and the formalities of service, filing and appearances. This type of coaching is legal information, not legal advice, and is already offered by non-lawyer staff at services such as the Family Law Information Centres across Ontario.
Non-contentious divorce cases do not require the formal training of a lawyer. They can be very effectively handled by a well-trained para-professional (especially one who has some training in counseling skills, something that is hardly mentioned in most law schools). Moreover, well-trained para-professionals can always refer any questions or concerns that arise in an apparently non-contentious case to a lawyer.
In its submission to the Review, NSRLP calls for an evidence-based approach which would include task-based analysis to determine which aspects of family legal services could be offered competently by a trained paralegal, law clerk, or even a law student.
The resistance
Despite the apparent strength of the argument for expansion, I have heard numerous assertions over the last few months from family lawyers that such suggestions must be squashed.
Their argument: an unspecific and nebulous assertion that family law is just “too complex” for anyone other than a lawyer to be trusted to competently handle. Apparently this is “obvious” (to them at least).
At first I was taken aback. Surely, I thought, family lawyers must realize that in 2016, they had to come up with a more realistic, grounded, and convincing reason than this to continue to allow up to 80% of family litigants to face the justice system without assistance? Or might they believe that if they just keep stonewalling, eventually all those SRLs will discover hidden stashes of money that they will choose to spend on a lawyer?
As I heard the same response repeated, I realized – there are some family lawyers who actually believe that the monopoly is their right and it is set in stone. They don’t need to justify it.
Now no one is saying that ensuring quality of service in an expanded para-professional marketplace will be simple. Nor will it be a cure all. It’s like the argument over unbundled services – there are all sorts of things that we can all see that might go wrong, and we will have to figure out responsibly how to do this properly.
But just like with unbundling – we need to get with the program here, people. We have no choice but to figure out how to do this properly and responsibly. The math isn’t changing any time soon, and public patience with a legal system at odds with public interest is running out.
And for a profession that prides itself on its intelligence and creativity, why would the fact that some of this is complex, and requires evidence-based decision-making, be a problem? Isn’t that what we get paid the big bucks for?
Which headline?
I believe that the members of the Review understand that we are at an important juncture in the history of legal services in Ontario, that they have a public responsibility to do the right thing here, and that this is an opportunity for the profession to show the public that it cares about their needs, is able to think beyond the narrow self-interests of the legal profession, and will respond effectively to the challenge the public faces in gaining meaningful access to justice.
That means:
- Announcing an immediate expansion of paralegal services in family law (supervision and evaluation/ monitoring can be easily built in).
- Commissioning empirical research (a task-analysis of a range of family case “types”) to inform future decision-making.
- Relaxing restrictions on law student assistance for family SRLs (for example, https://representingyourselfcanada.com/2015/09/09/pro-bono-students-canada-begins-srl-family-law-coaching-project-at-windsor-law)
- Announcing a pilot program in Ontario family courts to allow SRLs to bring a “McKenzie Friend” with them to a hearing (https://representingyourselfcanada.com/2016/03/21/self-represented-litigants-judges-and-the-nsrlp-mckenzie-friend-guide/)
- The Law Society of Upper Canada taking immediate and tangible steps to promote and publicize the use of unbundled legal services and legal coaching for the primarily self-represented (via the Lawyer Referral Service, continuing legal education, and via its own publications and social media).
This is a great opportunity for the legal profession to take a giant step towards restoring public faith, and to modernize and reshape the profession’s direction.
To refocus on a problem-solving role for lawyers as servants of the public interest.
Bottom line – it is a way for the legal profession to look and sound relevant again to ordinary people.
Or – we could allow our sense of entitlement and privilege to consume the soul of the profession.
Please, lets not blow this opportunity.
Can you help us set up a branch of you people here in Alberta for the SRL ?