The Genie Jumps Out of the Bottle: Creative Access to Justice Solutions for Effective Legal Assistance

The Genie Jumps Out of the Bottle: Creative Access to Justice Solutions for Effective Legal Assistance

Something very important is rising on the Access to Justice horizon…

In the last 3 months,

  • CBC’s The National screened a documentary on the Access to Justice crisis and the huge increase in self-represented litigants. The National is regularly watched by just under 1 million people and the documentary is still being viewed on You Tube. In the few days that followed the documentary’s airing, NSRLP website views peaked. Many lawyers reported increased enquiries about limited scope services (unbundled legal services). Denice Barrie, the sole practitioner offering coaching and unbundled services for the primarily self-represented featured in the documentary, had 4,000 hits on her website the following day.

This, and other signs of new receptivity in the Bar to acknowledging marketable limited scope services, prompted NSRLP to initiate the National Database of Professionals Assisting SRLs. As a result of our social media campaign to promote the National Database we are hearing from many lawyers, paralegals and others. We hope to formally launch the National Database this summer.

  • The Ontario Ministry of the Attorney-General and the Law Society of Upper Canada have just announced the formation of a Family Legal Services Review to be headed by Justice Bonkalo. The review is tasked with exploring potential roles for paralegals and others in providing legal services which might alleviate the crisis in family legal services (http://tinyurl.com/je7hdfw). They are asking for public input.

This is the first time that the controversial but vital question of which professionals other than lawyers should provide what legal services has been on the table for formal discussion since the LSUC 2004 Task Force Report. That Report and the LSUC 2000 report that preceded it have led to a slow trickle of expansion of paralegal licenses in Ontario (including small claims, traffic court, and most recently immigration, but not extending to family matters).

After a decade in which we have seen the crisis in lack of representation for family litigants grow larger (a crisis for the courts as well as for SRLs), and during which the mere mention of the word “paralegals?” at the LSUC was guaranteed to create a roomful of suddenly tone-deaf people, the announcement of the Bonkalo review is very welcome.

The Bonkalo review raises the possibility of a newly energized and holistic analysis that judiciously faces the question: in a family law matter, what do you really need a lawyer to do, and which tasks could be done by other qualified and experienced individuals?

NSRLP welcomes the Family Legal Services Review – we are encouraging SRLs from Ontario to contribute their ideas – and shall be making our own submission. It is not a moment too soon to become proactive in finding solutions; in British Columbia this week a 69 year old man was incarcerated for helping SRLs without a license to practice. How do we explain this to the public when they cannot afford “real” lawyers if we are not also actively engaged in figuring out how they can get effective legal assistance?

  • My blog last week – The Loneliness of the Self-Represented Litigant questioned why we could not routinely permit a friend or relative to accompany a SRL to the front table in a hearing. This blog has been liked and retweeted dozens and dozens of times, including by courts and law societies. It is heartening and unusual to see this degree of approval of NSRLP pleas for “non-traditional” assistance for SRLs coming from these important establishment sources.

NSRLP will shortly be bringing out a Guide for SRLs on Choosing and Presenting a McKenzie Friend, which is based on what we learned from interviews with judges conducted by Judy da Silva. We hope that this data can feed into Justice Bonkalo’s Review.

The open-minded interest in the forthcoming Guide that is being shown by important players like the LSUC (management and benchers), the BC Provincial Courts, and the esteemed former Executive Director of the Law Commission of Canada, Patricia Hughes, is gratifying and exciting.

Optimism and pragmatism

I have long been considered an optimist by my professional colleagues– as someone once described me, and it stuck, “the glass-half-full girl.”

I admit to a tendency to optimism – but many years in these trenches have also made me a solid pragmatist. I don’t do a lot of daydreaming about ponies and rainbows.

I think that the events of the last three months, and those that we can anticipate in 2016, may be the beginning of a tipping point. I have always said that we need to make Access to Justice something that more legal system professionals can stand up and say that they care about – at NSRLP we continue to recognize some of these individuals as Access to Justice All-Stars – and this caring means rethinking everything, including how we deliver and regulate legal services.

Month by month, week by week, more and more influential leaders in our community are standing up and making statements about change. This helps those whose careers are less secure to do the same thing – even if that is as simple as a lawyer who decides to “go public” (in our National Database) about openly offering and marketing unbundled legal services.

Sensible, pragmatic people have known for some time now that despite their protestations, the legal regulators cannot truly control what is happening organically as people respond to the crisis in justice services – and in the absence of a plan that caring professions can feel good about and get behind.

The combination of the World Wide Web – which can shelter innumerable unauthorized practitioners – and the public’s desperate need for affordable legal services means that the legal regulation genie just jumped out of the bottle. And she’s not going back inside.

Let’s embrace this new reality, understand the needs, and get proactive.

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