This article originally appeared in the May 11th 2015 issue of Canadian Lawyer Magazine.
With bencher election results in and the Law Society of Upper Canada getting a facelift, this administration will be under more scrutiny than any previous LSUC board for its action plan on access to justice. The profession is far from settled on having a comprehensive and effective plan to promote access to legal services, and we are likely to hear loud calls for accountability.
A growing number of lawyers and access to justice advocates are becoming aware of those socio-legal discrepancies and are actively seeking socially conscious solutions that balance the fields of legal services irrespective of financial capabilities.Thus far, the need for serious restructuring to our institutional access to justice mechanisms has driven the legal profession to consider a multitude of possible solutions that have yet to prove effective.Access to justice as an institutional problem comes with different shades, and lately, an overwhelming sense of urgency.
This urgency is real as the victims (or beneficiaries) of a coherent accessible legal system range from the financially privileged navigating the legal system, the legal profession in its entirety, and the mere bystanders of blanket rules and regulations — the common man — even those who are “off the grid”.
A2J problems are three-fold; starting with lack of awareness on the part of the people, lack of incentives on the part of lawyers, and lack of an organizational plan at which law societies lie at the heart.
Making justice accessible to those who seek it would trigger a lively culture or a legal arena that gives every party a just and fair advantage. This will, in turn, facilitate the utilization of one of the most effective systems for change — the legal system — and position inclusion as its foundation.
Problem 1: fostering inclusion
The most pressing problem when it comes to access to justice is the vast majority of people don’t know what to do in case of personal legal issues.
This leads to their exclusion from the legal sphere — a dangerous phenomenon for the individual, as well as the public.
Access to justice isn’t mere inclusion or some participatory right in the legal system. It is a necessity; without it, a person is at a risk of incriminating themselves, for example, or perhaps less drastically dropping their rights or claims against a party in an unfair transaction. Examples of this urgency start with personal injury victims, terminated employees, or persons with criminal law issues.
Without readily available information, an alarming number of people are being denied their natural rights.
To reiterate: A2J should not be regarded as some delicacy, but as a necessity. Personal injury cases, termination and employment law issues, and criminal law matters are examples of emergency situations where one should at least have a basic understanding of the first points of contact — whether a lawyer, government institutions, or other public authorities such as the police.
Often these questions aren’t easily answered: a young man contacted me regarding an up-and-coming criminal proceeding. He had “no one helping” (representation, at the least); he had contacted legal aid and failed the threshold. He didn’t know if he should proceed by calling the police and taking it upon himself to “explain the situation,” or whether he should contact a lawyer, or some other institution to try and get legal help.
I was thankfully able to find him help, but I hardly think this person’s experience is unique in feeling at a loss in understanding personal legal issues — let alone addressing them.
There is lack of knowledge (of where to go, who to talk to, etc.), and the lack of readily available resources to address questions, starting with “who can help?”
With the increasing difficulty in procuring forms of justice when it comes to representation, quality lawyers and good legal advice, people often go unrepresented. Their claims are either being dropped due to the statutes of limitations, or have judgments simply rendered against them.
Problem 2: inclusion and lack of diversity at the LSUC
For clients, access to justice means access to courts. However, for lawyers and the legal community, A2J means having an inclusive legal community, starting from its composition, to its services.
There was hardly any bencher at this year’s LSUC elections who did not capitalize on the topic of diversity in the legal community.
As the article states, access to justice is the elephant in the room; there should be no shame in tackling the issue head-on. The LSUC has already embarked on tackling the problem of the exclusive nature of the legal profession with the Law Practice Program.
While this is a step in the right direction, there is great reluctance on behalf of law students, as well as present and future legal professionals on whether this alternate route to articling will create a two-tier system; where those who choose the LPP route are assumed to have failed at attaining articles the traditional way and those who do it, do so out of necessity.
I will not address the articling crisis, but as the legal profession opens its doors to a wider variety of law graduates, law societies are bound for change — to include a diverse mesh of Canadian and foreign trained lawyers, all perfectly qualified for the shaping of our future legal community.
That said, access to justice as access to courts afforded to people with little financial means shouldn’t be contingent only on whether we have a mosaic-like legal community.
Problem 3: current lack of incentives to firms/lawyers
In upholding access to justice at the level of legal services and pro bono work on behalf of those in need, it is not (and has not been) productive to only allocate resources in hopes of better acceptance/rejection rates at legal aid clinics. Allocating resources to optimize legal aid’s performance or create organizations and institutions is also not enough.
There seems to be no incentives for firms or lawyers to provide pro bono work. While a great number of them are still donating their time on behalf of those who need it, we do not have a system that registers those who need help, and categorically shift them in a system that provides the help required.
Rules of Civil Procedure only have effect after a case is entered into the system; but before then, there is no mechanism that processes a case starting from the incident itself, to retaining a lawyer.
We must develop a structure that incentivizes firms and lawyers to help those in need. While legal aid’s help has been crucial in attaining justice for many, we need a new-age forum that stresses and glamorizes efforts promoting A2J.
We should incentivize firms and lawyers to take on clients at no cost.
Lawyers have access to courts; what they need are better reasons to engage in pro bono work. This starts with a widely publicized database of clients requiring help.
The second step is to find incentives for lawyers to aid those clients. This helps establish a mechanism that works like alchemy: transferring something into a more valuable commodity.
The moral, albeit misguided, argument can be made: clients are not commodity.
They aren’t — but a grade system that shows participating lawyers and firms a system of ranking would encourage legal professionals to partake in a cause that concerns administrative legal bodies, the legal profession, and most importantly, the very people we are meant to serve, our neighbours.
By developing a registry or some other form of centralized attention focused on those in need, firms could avail legal professionals to a publicized system highlighting a relative rating percentage of clients taken on at no cost to the client.
Of course, more specifics would have to be devised inasmuch assuring proper credit even for smaller firms. A relative rating should be highlighted to encourage even individual lawyers or small firms to help.
I don’t have a formed fool-proof action play, and maybe a grade system shining the light on firms’ efforts isn’t the best way, but there will be no essential shift to a more inclusive justice system if firms and lawyers aren’t encouraged by some sorts of incentive.
Providing access to justice to people who need legal advice can only increase with providing incentives for said people. The LSUC will have landmark decisions to make, for if it has no power to change current societal problems, it is hard to think of someone else who does.
We can claim that our professional responsibilities require us to help irrespective of credit or incentive, and the only incentive we ought to have is our duty to help in favour of the public good. However, that hasn’t worked up until now, and without a systemic shakeup of structure that avails potential clients to legal professionals interested in access to justice, the crisis will remain in control of the efficacy desired in all legal systems interested in true justice.