NSRLP has started to create a National Database of Professionals Assisting SRLs.
The goal is clear – SRLs need and want assistance, and a National Database could offer information on affordable assistance that provide at least a measure of access to justice for those who would wish to avail of them.
But while a database is a simple idea, the path ahead for a National Database is challenging. There are many uncertainties and challenges, including logistical dilemmas over whom to include, possible legal challenges over the definition of the unauthorized practice of law, and general resistance to innovation.
In this blog I want to briefly set out NSRLP’s reasoning for creating the National Database and to flag some of the challenges we anticipate. We do not have all the answers – but we relish the opportunity this initiative offers to everyone who cares about the current crisis in access to justice to think these questions through.
Beginning with Unbundled Legal Services
I have been envisaging the development of a resource for SRLs who seek unbundled legal services for some time – we are often asked at NSRLP if we can refer a SRL to a lawyer offering unbundling locally – but until very recently, I was discouraged from doing so by the dearth of lawyers openly advertising that they offered unbundled services.
From innumerable contacts and conversations with members of the Bar across Canada, I learned that:
- Some lawyers offer unbundled services from time to time in specific cases (typically, a former client who terminates a full retainer agreement because they ran out of money);
- Pressure from the senior Bar on young lawyers not to openly offer unbundling is often intense and is widespread;
- Provincial lawyer referral services do not usually include a category for practitioners who offer limited scope retainer services;
- Few topics got my audience at local bar association meetings as agitated as opening a discussion of unbundling as a mainstream alternative to a full retainer arrangement.
But in the last 6 months, the culture seems to be shifting. I have been hearing from more and more lawyers interested in developing a business model that might work to attract SRL business. Because make no mistake, the market exists.
An Untapped Market
A large number of the 253 SRLs interviewed for the original National SRL Study described looking for a lawyer at some point who might have assisted them on a limited scope basis – for example, to review documents or help them to prepare for a specific event such as a motions hearing or a settlement conference. Few SRLs (n=13) found such services, despite numerous phone calls to lawyers’ offices asking for such assistance.
The idea has been around for more than 30 years. It has been approved by most provincial law societies as a “limited scope retainer” (more than a decade ago in some cases, following lengthy deliberation), and covered by LAWPRO, CLIA and other insurers (and contrary to popular mythology, very few complaints or claims resulted). While progress towards openly offering such services has been glacial, there now appears to be a lessening of resistance.
The next challenge is creating public awareness of such services. “The New Litigants” aired on CBC’s “The National” on December 31st, 2015 and the following day, Denice Barrie, a BC lawyer featured in the documentary who offers unbundled legal services and coaching, received 4,000 hits on her website. Lawyers all over Canada began to get phone calls from existing clients asking “do you do this?”
Consumer interest and appetite is there – and a National Database can help with matching needs to services.
Just Lawyers and Paralegals?
The National Database of Professionals Assisting SRLs could just contain information about lawyers who offer unbundling. Even if it stopped there, we would still face some difficult questions – for example, is including a particular service provider in the database an endorsement of their services? And do we only include unbundling services that offer lower than usual hourly rates? Or that include some fixed fee elements?
Some lawyers now offer seminars and courses targeted at SRLs—for example, coaching them on legal procedures, or how to make presentations in court. We want to include these innovative new services in the National Database as well.
But further than this – we want to extend the National Database beyond lawyers, and include contact information for other professionals who offer services for SRLs.
Paralegals and SRL Services
We are committed to including paralegals who assist people who are primarily self-represented. A quick glance at your local craiglist will demonstrate the services being offered by paralegals in their agreed practice areas but also in SRL coaching, public legal education, document notarizing and service, and more. This sector shows dramatic growth – in Alberta alone, it is estimated that the number of independent non-lawyer agents rose by 230% from 2000 to 2009.
We recognize that including paralegals will raise further questions – about the type and extent of services they are offering, about supervision by lawyers, and about expanding the scope of paralegal services. In the coming months, we shall feature paralegal guest bloggers who will discuss these issues.
Other Professional Services for SRLs
But we do not want to stop there either, and limit the National Database to lawyers and paralegals. I realize this may be controversial, but I feel that we should collect information on services being offered by a wider array of specialists, whom I shall describe as “other professionals.”
We have begun to see other professionals and entrepreneurs moving into an area we can generally describe as “Assistance for Self-Represented Litigants”. These include individuals with professional training as counselors and therapists, those offering public speaking coaching, and even document editing services. And at the same time, nonprofit agencies that offer public legal education and information are beginning to develop programs specifically for SRLs.
Including other professionals who are neither lawyers nor paralegals raises an even wider raft of questions. Are their services in contravention of the Law Societies’ Acts that restrict legal assistance to lawyers and licensed paralegals? Is publicizing them in a National Database likely to lead to prosecution for the unauthorized practice of law? Where will future lines be drawn with some of these services – for example, will drafting a document be considered the unauthorized practice of law, while editing or revising squeaks by? And will established lawyers and paralegals wish to be part of a database that includes possible “renegades”?
We also see former SRLs offer assistance to others –mostly pro bono – helping with court documents, preparing for hearings, and acting as moral support. Most of these individuals have no commercial aspirations – they are simply trying to help out when they see others stumble on the path they walked before. Certainly the phenomenon of former SRLs helping current SRLs deserves further study. However we do not presently see them as part of the database, which will focus on affordable, empowering, entrepreneurial services offered to SRLs.
Getting Started
We are very committed to getting started on creating a National Database. We anticipate many questions, challenges, and debates as we move forward with this initiative. We have learned that in facilitating access to justice, sometimes it is important to move forward in order to keep up with the public’s pace, even without having all ready the answers to the questions that may follow. I have tried to flag some of these dilemmas here, without imagining that I can answer them yet.
I believe very strongly that the time is ripe. It is time for more consolidated information for consumers and it is time for a practical, vigorous debate over who helps SRLs, and how.
I welcome input about the questions raised in this blog.
All very welcome and useful initiatives, thank you NSRL. However the legal establishment itself, starting with our provincial Attorney-General could provide more leadership and incentives for meaningful reforms. Yesterday, for example a self-represented homeowner had to appear – alone – before the License Appeal Tribunal (LAT) re defects in her new home. The opposing parties – Tarion and the builder – brought 7 people, lawyers and experts, in the hearing room to fight her at a pre-hearing. She was forbidden by LAT rules from even bringing a friend to take notes. Training can’t help you with this. The legal establishment needs to step up to the plate and change some of these unfair rules. Our Attorney-General has the power to do something. The Ministry’s reaction to date, also from SLASTO the LAT governing body, indicates they’re more or less content with the status quo. That’s the real impediment to change. …..B. Captijn, Consumer Advocate
Definitely appreciative of the NSRL’s in depth analysis and sound conclusions . So thank you , an initiative most needed !!! But as Ms Captijn so rightfully states , the Attorney General heads the process and should step up to the plate. We have been told by the Crown Attorney that the Attorney General , in her role, cannot be criminally prosecuted ….and all this when the rule of Law and the courts states ” What does the rule of law mean?
It means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law — not the government; not the prime minister, or any other minister; not the Queen or the Governor General or any lieutenant-governor; not the most powerful bureaucrat; not the armed forces; not Parliament itself, or any provincial legislature. ” It starts there …..with the legal “system “as it operates currently and as it is allowed to perpetrate the status quo …
RE: “NSRLP has started to create a National Database of Professionals Assisting SRLs.
“….We have learned that in facilitating access to justice,… it is time for a practical, vigorous debate over who helps SRLs, and how.”
From an ‘Open Law Lab’ entry this morning: “…an interesting initiative in the UK that is all about organizing, standardizing, and coordinating data sources to improve the criminal justice system for better user experience.” “There is so much laborious work to request, export, and import data from system to system — and it doesn’t need to be that way.”
“It doesn’t need to be that way.” Most systems have endemic ‘problems’ that are self-created purposefully. The more convoluted and incomprehensible to the lay public, the safer the system functions for its creators.
Though I encourage the noble intentions, will “greater Access To Justice” by the have-less in fact result in increased “Justice?” I maintain, and will sound like a broken record, unless we manage to change the very foundation of the system, by rewriting the Rules and Procedures, eliminate the myriad rooms for argument, and making those who run the system accountable for their actions, we will only aggravate their status quo, forcing them into their habit corners and hence create more chaos in their courts.
(PS: I note ‘bcaptijn’ and ‘Nic’ are already on board here…)
@evert-jan Steen, you are not the only broken record so let me join you in saying “unless we manage to change the very foundation of the system, by rewriting the Rules and Procedures, eliminate the myriad rooms for argument, and making those who run the system accountable for their actions, we will only aggravate their status quo, forcing them into their habit corners and hence create more chaos in their courts.”
RE: “NSRLP has started to create a National Database of Professionals Assisting SRLs.
“….We have learned that in facilitating access to justice,… it is time for a practical, vigorous debate over who helps SRLs, and how.”
From an ‘Open Law Lab’ entry this morning: “…an interesting initiative in the UK that is all about organizing, standardizing, and coordinating data sources to improve the criminal justice system for better user experience.” “There is so much laborious work to request, export, and import data from system to system — and it doesn’t need to be that way.”
“It doesn’t need to be that way.” Most systems have endemic ‘problems’ that are self-created purposefully. The more convoluted and incomprehensible to the lay public, the safer the system functions for its creators.
Though I encourage the noble intentions, will “greater Access To Justice” by the have-less in fact result in increased “Justice?” I maintain, and will sound like a broken record, unless we manage to change the very foundation of the system, by rewriting the Rules and Procedures, eliminate the myriad rooms for argument, and making those who run the system accountable for their actions, we will only aggravate their status quo, forcing them into their habit corners and hence create more chaos in their courts.
(PS: I note ‘bcaptijn’ and Nic are already on board here…)
I will be in Court as an SRL Plaintiff with a Summary Trial against the Minister of Justice of BC on Feb.12th in Victoria next week. Though I feel to have all the ‘Cause of Action’ and Case Law required to prove my claim, it will be interesting to see what argument, or technicality, will be used to deal with me.
Excellent initiative.
We also have mindset meetings in addition to standforyourself.com
I think other SRLS should be included in the database with strict limits-(cannot give legal advice). Already we help one another and many have sought out others. One lady who was having a difficult time tracked me down solely because she came tot he conclusion that she needed to find an SRL who was declared vexatious and had come to the conclusion that only those SRLs who got under the skin of judges and lawyers could hold their own in what she was facing from the court. Based on her experience she figured those declared vexatious were so declared because they could hold their own in court.
SRLs should definitely be included in the database as persons willing to sit in a court room even if only as witness to what happens there. It is now the norm for judges to mouth to lawyers what arguments to make against SRLs and we have no witness to back up our claims while all the lawyers (and clerks close ranks). At least level the playing field in this way. Further SRL:s need more than the two ears they have just to ordinarily understand what is said to them or against them in court. The encounter is frightening for many and in such a state one does not hear well
Finally, one recurring issue SRLs have is that everyone speaks for them and over them but hardly with them or to them. It is only proper for SRLs to be part of the solution to this phenomenon