We’re Back! Reflections on how the Conversation has Shifted

There’s nothing like a vacation to give a sense of perspective. NSRLP’s summer break provided the chance for an evaluation of how far we have been able to affect the national conversation about self-represented litigants (SRLs) – where that conversation has moved from, and where it has moved to.

The first blog I wrote in this series – almost exactly three years ago on June 16, 2012 – was called “The Two Solitudes” (https://representingyourselfcanada.com/2012/06/16/the-two-solitudes/). The image was of two radically different narratives of the SRL experience. As I wrote then:

“SRLs see expensive legal services inhibiting their access to justice. Lawyers and judges (at least many of them) see people gumming up the legal system with incomplete and irrelevant arguments, slowing down the procedures even further and taking up air time in a public space.”

I called for dialogue to improve understanding between the two “solitudes”. How has this gone?

The SRL perspective

To a significant extent, the NSRLP has been the voice of SRLs in this dialogue for the last three years. We have worked hard to get SRLs onto task forces, included in policy groups and into professional conferences to speak about their experiences for themselves. We have had some occasional, important successes – but it is still exceptional to invite a SRL into a policy discussion or to see a SRL present at a conference (more coming on this next month with the results of Board Member Rob Harvie’s public participation “audit”).

SRL’s are slowly being invited into the conversation, but for the most part they are still treated as outsiders who don’t really understand and can’t really contribute.

SRLs still see “expensive legal services inhibiting their access to justice.” Public legal aid has expanded in Ontario, and across Canada there are pieces of new public programming designed to assist SRLs, but most Canadians are still unable to qualify for public assistance and unable to afford private legal services. The fundamental choices they face continue to be limited and unsatisfactory. Until this changes, their narrative will only get more intense and perhaps more frustrated.

What has changed is our awareness of some of the ways in which this problem could be addressed (I say “some” because discussions on the regulation of legal services in the public interest, outside Nova Scotia – http://nsbs.org/entity-regulation – appear to have stalled). There has been a lot more attention paid to unbundling or limited scope retainer (LSR) services in the last 18 months than ever before. For example, new continuing legal education programming is being developed, there have been some important publications (eg the Alberta CBA’s http://www.cba-alberta.org/ab.cba.org/media/CBA-Library/Media/cba-alberta_media-release_december172013.pdf) and we are seeing the emergence of informal regional networks of lawyers offering unbundling (in Alberta and Ontario).

It’s a start. But we have to go much, much further still.

My hunch is that more and more lawyers are using the excellent template retainer agreements and other forms that are widely available (eg http://www.barreaudemontreal.qc.ca/loads/Guides/GuideMandatPorteeLimitee_an.pdf; and http://www.lians.ca/resources/risk-and-practice-management/practice-tools/limited-scope-retainer-resources) to offer LSRs, but they are not yet advertising themselves as doing so. There is a feeling that this might provoke the wrath of others in their professional community who may not approve – who may even regard offering this type of “inferior” arrangement as disloyal to the profession, or a sign that the lawyer can’t attract “real” work. If a client or prospective client asks, they will do a LSR – but they will not say so in the yellow pages or on their website.

Stealth is obviously not a very satisfactory marketing plan – and it is especially problematic in relation to new services that need to be promoted in order to create a market.

And if I am correct that fear of the scorn of colleagues is a factor in the reluctance to advertise unbundling openly – then we should be talking openly about this. It is a 19^th century response to a 21^st century crisis in access to justice.

The justice system insider’s perspective

While SRLs “gumming up” the court system continues to be the experience of many lawyers and judges, the more important question is whether their understanding has shifted of why this is happening.

In 2012, there was a widespread assumption that many people appeared in court without lawyers because they were convinced that they could competently represent themselves – Perry Mason wannabes. We now know (from our study and others) that the most important factor is the cost of legal services and the lack of other choices. This earlier stereotype also often cast SRLs as unstable and delusional. Much of the conversation then was about how to impose penalties on them to make them shut up and go away.

In the last three years, NSRLP data and the voices of SRLs themselves have pushed the conversation in a different direction.

Here is where I think that conversation has landed for legal system insiders.

• There is widespread acceptance now that many if not most of those representing themselves do so simply because they cannot afford a lawyer (at least not in a traditional retainer agreement – which brings us back to unbundling) – and not because they want to or fancy themselves as better able to represent themselves.
• There also seems to be a wider recognition of the stress placed on SRLs as they try to “get it right”, navigating through the complexities of legal process, at the same time as they deal with whatever personal and social disaster brought them to the courts in the first place.
• That the profession having created the problem of unaffordability has at least some responsibility to “play nicely” with SRLs.

There is no sign beyond some stirrings of interest in unbundling that there is any interest in a serious look at the wider problem of affordability, which most of the profession still feels it can simply ignore.

The 2015/16 agenda

When I came back to work this week, I noticed that the requests for assistance (resources, speaking, data etc) I had received over the past month – mirroring many similar requests in the past year – were highly specific. They often fell into one of two categories:

• Lawyer’s ethical responsibilities vis-à-vis SRLs (meaning: lawyers have a duty to their own clients and therefore should be excused from doing anything constructive or meaningful with a SRL on the other side)
• How to work with mentally ill litigants (meaning: we cannot, of course, because we do not have that type of training but we are showing we care. And SRLs are still cast as “mentally ill”, with a nod to the impact of their litigation experiences on their emotional wellness).

Both these frames reflect some progress from 2012. They – and justice system insiders whose views they reflect – seem to accept that SRLs are here to stay, and that this problem (especially the evidence of situational impact on emotional wellness) is being taken seriously. But I can’t help noticing that each also allows the profession to shrug and say – ah well, what can we do?

A more realistic framing, and one that would truly advance the conversation inside the profession about SRLs would be as follows:

• What are lawyers’ ethical responsibilities to advance a matter where there is a SRL on the other side? (excellent advice is provided in https://representingyourselfcanada.com/2015/06/25/new-uk-guidelines-for-lawyers-on-working-with-srls/)
• How to work with distressed litigants (something that is surely part of a lawyer’s role, and a feasible educational target, in contrast to the earlier framing). Because lawyers can learn new skills for working with people who are upset and anxious, especially if they understand more about how they became a SRL in the first place.

In suggesting these reframes to those requesting our input this Fall, I am very conscious that I have seen a real shift in the way the profession is thinking about its response to the SRL phenomenon. I also believe that a long slow march has begun towards really accepting unbundling within the culture of the profession, but this is just the very first step in really confronting the wider problem of affordability, which implicates who provides legal services as well as how they are billed.

It continues to be necessary for NSRLP to ask that we push ourselves further, ramp up our sense of urgency and increase the speed at which we turn changed consciousness and better understanding into enhanced access to justice.