Self-representation Boom – Problem or Opportunity?

Image: Canadian Medical Protective Association

Image: Canadian Medical Protective Association

Few words strike deep fear in the hearts of many licensees as these: “Self-Represented Litigants.”

From online forms and self-help websites, to legal matter bidding wars and cut-rate rogue “legal consultants,” some see lawyers and paralegals falling victim to market forces they cannot control.

An expansive recent report suggests these concerns are not flights of fancy. Self-representation is on the rise, legal consumers are shopping around more than ever, and potential clients are taking a more pro-active role in their own matters — including negotiating fees and deciding there are some services they can do on their own.

In May, University of Windsor law professor Julie Macfarlane released the results of her “National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants.” Macfarlane’s “SRL” report examines the issue of self-representation from the point of view of the parties themselves, rather than on how the legal system perceives them. The Law Foundation of Ontario, the Alberta Law Foundation, and the Law Foundation of British Columbia/Legal Services Society of British Columbia funded the study.

It quotes some of the 259 participating self-represented litigants about their experiences and expectations, providing a useful — and sometimes troubling — look at how the public views access to justice.

How many people self-represent? Prof. Macfarlane says the numbers are “extraordinary.” In particular:

    • According to data from provincial ministries, at least 40 per cent of family court litigants appear pro se
    • In some civil courts, 70 per cent of litigants self-represent
    • Self-representation has increased in small claims courts since the jurisdiction limit increased to $25,000
    • In Superior Civil Court, self-represented litigants outnumbered represented litigants in 1999; Macfarlane says that gap “will certainly be far larger” now
    • Macfarlane found evidence of “general public dissatisfaction and skepticism about the value of all professional advice” and a “general decline in deference towards professional advisors.”

Such stark statistics roused the legal community into shock and horror. Self-representation is destroying the legal system and wearing at the very fabric of society, some cried.

Toronto family law lawyer Gary Joseph says calls the self-represented “an absolute disaster for themselves, the courts, the integrity of the justice system and family law in general. They don’t understand process or procedure and judges are forced to play a role that they are not supposed to, that of advisor and instructor.”

What’s to blame?

An oversupply of new counsel — and paralegals — at a time of falling demand, Toronto criminal lawyer Aaron Harnett wrote, in a June Advocate Daily article, “Criminal Lawyers are Feeling the Pinch.” Harnett writes that increased self-representation, restrictions in the legal aid system and an influx of paralegals all combine to reduce the number of clients for lawyers. He says the Criminal Lawyers Association is working to “win back some work from paralegals and self-represented accused.”

Legal consumers seem to want more, not less, paralegal representation.

While it calls for a re-examination of the parameters for “paralegal” assistance, it is important to note that Macfarlane’s report does not distinguish between responses and comments related to Ontario paralegals, and paralegals in other provinces — where the standards, training, and permitted tasks for “paralegals” are not regulated. This means that comments related to “paralegals” do not necessarily refer to LSUC licensees.

Still, some passages in the report seem to refer to public perception of Ontario paralegals. For example: “Some SRL’s complained that they did not understand why they needed to pay a lawyer’s hourly rate for some tasks which they believed could be carried out by a paralegal …” Some questioned why they had to pay a lawyer’s rates for simple tasks, such as having an affidavit sworn.

One comment comes from a paralegal who self-represented and sees a conflict in having paralegals regulated by the same body that governs lawyers. “I do not trust the Benchers to decide the appropriate role of paralegals in the public interest.”

Access to Justice Includes Paralegals

When Prof. Macfarlane canvassed SRLs about their experiences, she found respondents questioning the limitations placed on the provision of assistance by paralegals – especially in relation to family matters. This underscores a federal Access to Justice report earlier this year, that suggested paralegals could help to relieve the representation gap that now plagues the family law system.

Alliston paralegal, Tracy Mason, has seen Ontario’s legal system from several perspectives over her long legal career. She has been a client, an agent, an advocate, a hand-holder — and self-represented. Her assessment: “The system sucks. The model is broken.”

Reflecting on the current state of practice, Mason adds: “I wish I had studied social work instead of paralegal, because the underlying threads of mental health, poverty, and lack of education impact access to the system. Few, even those who are trained, are adequately equipped to navigate the legal system. I have represented mentally ill, terminally ill and those with meritorious cases, for low or no fee.”

As with some self-represented who responded to Macfarlane, Mason found herself trying to navigate the family court system at the worst time – during a marital breakdown. “Family law forms make preparing your Income Tax look like child’s play” Mason says. “I do not recommend that our scope be enlarged to cover family matters without some major training and accreditation.”

Most-needy Cannot Afford Representation

Mason cautions against a rush to expand the scope of paralegal practice, or to use paralegals as an emergency, stop-gap measure to provide legal services for the most-needy in the province. “Paralegals are not lawyers. We are no better or worse than lawyers either. Just because our rates are cheaper, does not make us better or a viable alternative for the self-represented. The public cannot even afford paralegals.”

Of course, not all lawyers view paralegals and SRLs as threats to their livelihoods.

For instance, the Canadian Bar Association (CBA) released an access to justice report in February, titled “Underexplored Alternatives for the Middle Class: Envisioning Equal Justice.” The report notes that, “While paralegals and non-lawyers/non-paralegals are an important part of improving access to justice, the potential of this resource has not been fully explored in all parts of Canada.”

The CBA report states that: “concerns may be raised about the consistency or quality of advice offered, but UK studies suggest that specialization, not qualifications, are the best predictor.”

National Action Committee Addresses Justice Gap

While some in the legal professions are exasperated with the influx of SRLs, others are looking for ways to adjust and adjust to the changing landscape.

In June, the Treasurer’s Blog at the LSUC site featured a guest post from CEO Robert Lapper, who argues that self-represented litigants are “here to stay.” Lapper participated in an event that brought together members of the justice system, academics and self-represented litigants to discuss Macfarlane’s work.

Addressing June Convocation, Supreme Court Justice Thomas Cromwell told the Law Society benchers that change is on the horizon. Justice Cromwell chairs the National Action Committee on Access to Justice in Civil and Family Matters, established by Chief Justice Beverley McLachlin in 2008. The National Action Committee works in co-operation with the Canadian Bar Association and the Canadian Forum on Civil Justice.

“This is not about lawyers charging too much,” Cromwell said. “It’s about providing justice in a more cost-efficient manner. If the court system is inefficient, the costs go up. On the legal services side, we have not explored all the models that might help to get meaningful access to justice. All the players are going to have to be willing to get together and work in a systematic way.”

Mason would like to see legal services made more accessible and affordable via alliances or “co-operative” community clinics. These would function like medical clinics, staffed with various licensees.

“The old law firm model isn’t working any more. In our town, we have no regular staffing of a legal clinic. If Legal Aid Ontario were willing or able to fund community-based alliances, we could fill the voids ourselves. As long as we are licensed and insured, who cares if we form co-operatives?”

Business and licensing expenses should be addressed, procedures simplified and made consistent across regions – and Small Claims Court made entirely self-represented, Mason suggests. “I believe we should adopt the Quebec model of Small Claims Court: no paid representation is allowed.”

Business Models Examined

Innovations are being considered. Convocation heard wide-ranging suggestions to leverage business models and technology, in June. In the Law Society’s Alternative Business Structures (ABS) Working Group’s premiere report, the group mentions non-traditional business structures and alternative legal services provision. These include such concepts as non-licensee investment or ownership of legal services firms, equity financing, partnering with non-licensees and expanding services to include do-it-yourself legal forms.

Information available on the internet plays a factor in the self-representation boom, Prof. Macfarlane found; respondents reported significant gaps in the online information, a frustrating lack of specifics, and varying quality and consistency of the web-based self-help modules. A significant number sought unbundled legal help after becoming discouraged, and even overwhelmed, by the internet tools.

Cost is, of course, a big factor with the self-represented. Some have taken to posting ads on social media and online services, stating how much they are willing to pay for specific services.

But cost is not the only reason a big chunk of Ontarians are taking a “DIY” approach to their legal issues. A dim view of legal professionals, and of lawyers in particular, has taken a toll on the profession. Dissatisfaction with the legal service provider is the second major factor cited for why people chose to self-represent. Study respondents complained of counsel:

    • Doing nothing
    • Not being interested in settling the case
    • Being unwilling to take their case
    • Not listening or explaining
    • Making mistakes / not being competent

In the Macfarlane report, SRLs spoke of the conduct of opposing counsel in cases where they faced a legal representative. “A few spoke about the helpfulness and civility of the lawyer on the other side – but these were a minority group. Many others described behaviour and tactics that they understood as intentionally designed to bully and intimidate a person who is representing themselves.”

Lapper reported in the Gazette that the Macfarlane findings are a “very real call to action on the issues specific to self-represented litigants.”

The needs and expectations of the self-represented for legal services and dispute resolution services “depart from the traditional lawyer-client, billable hour relationship,” Lapper said. “So how does the legal profession keep pace — and not just survive, but thrive — as more and more people are turning away from traditional legal services?” Lapper asked. Innovation is the answer. This could include:

    • More provision of information and support
    • More unbundled services
    • More and creative uses of technology
    • More cross-sector alliances that support people when and where their legal issues may be arising.
Rules of Conduct Changes Possible

Lapper said the Law Society’s role is to lead by example — with rules and regulations that facilitate innovation, while maintaining standards of competence and guarding the public interest.

Many SRLs in the Macfarlane Report sought “unbundled legal services” — a la carte assistance with document review, letter writing, or in-court assistance. Respondents who could not afford to pay a traditional retainer wanted to do some of the legal work themselves, with assistance from a professional.

“Rules of conduct and continuing professional development needs and opportunities must be reviewed and enhanced with regard to dealing with self-represented litigants,” Lapper wrote in The Gazette. Licensees could be encouraged to unbundle services or offer alternate billing structures. “More needs to be done to ensure the public is aware of these alternatives and how to find them.”

The Gazette notes that the Treasurer’s Advisory Group will consider the Macfarlane Report recommendations, together with other reports. These include the Canadian Bar Association’s “Envisioning Equal Justice Project” and the “National Action Committee on Access to Justice in Civil and Family Matters.

Further Report Findings:

    • Many SRL’s find that the legal services that they can realistically afford to pay for, and/ or prioritize as an area in which they want assistance, are simply not available to them other than in a traditional legal services model.
    • Financial retainers and services billed at a rate of $350-$400 an hour are beyond the means of many Canadians. 53% of the SRL sample who were willing to
      pay for counsel at first later ran out of funds and/or exhausted their willingness to continue to pay for legal services.
    • 86% of the SRL sample sought legal counsel from legally aided/pro bono providers.
    • SRL’s are not saying that they do not want lawyers to help them – but that the way in which lawyers are currently offering their services does not fit within their budget.
    • Some SRLs are saying that they prefer to have more control over the progression of their case and resist the traditional assumption of professional control by their lawyer.
    • SRLs spoke of counsel not listening to them or consulting them in decision making; and a sense that their lawyer was insufficiently familiar in the relevant area of law to be effective.

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One comment

  1. Maybe in Canada judicial corruption has not run rampant. When there are the judges of the courts, ruling against all known law, and people are being thrown out of their homes in the masses, when no legal documentation is used…

    Let’s put it this way…

    But there is another consideration – the imperative of judicial integrity. It was of this that Mr. Justice Homes and Mr. Justice Brandeis so eloquently spoke in Olmstead v United States, 277 U.S. 438 at 469, 471, more than 30 years ago. “For those who [364 U.S. 206, 233] agree with me,” said Mr. Justice Holmes, “no distinction can be taken between the Government as prosecutor and the Government as judge.” 277 U.S., at 470 (Dissenting opinion) “In a government of laws,” said Mr. Justice Brandeis, “existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by it’s example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; IT INVITES ANARCHY.

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