How can legal services be changed to increase access to justice?

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Access to justice in Canada is an ongoing issue.  There are an increasing number of unrepresented litigants, longer delays to get to court, and cuts to legal aid funding.  Many changes are influencing the legal profession in Canada, and access to justice cuts across all of them.

How and where we provide legal services impacts who can access them. If non-traditional business structures create lower legal costs, lower income earners may have easier access to legal services. The CBA’s Reaching Equal Justice report recommends “a wide range of alternative organization models for the provision of legal services to meet the legal needs of low and moderate income Canadians, including those living outside major urban centers.” The report sets a target that “by 2030, 80% of lawyers in people-centered law practices work with an integrated team of service providers…including non-legal services and services provided by team members who are not lawyers.”

Alternative structures are becoming realities outside private practice as well. British Columbia’s Civil Resolution Tribunal Act, passed in May 2012, will create North America’s first online tribunal to deal with small claims and strata property disputes. Acting Chair of the Tribunal Cheryl Vickers writes:

The Civil Resolution Tribunal offers an opportunity to rethink our approaches to civil justice. Some of the Tribunal’s philosophies and processes will seem radical compared to the status quo. But, in our current crisis of access to justice, these changes are exactly what we should be considering, or, in the case of the Civil Resolution Tribunal, working to implement as soon as possible.

We can hope that alternate ways of doing business will improve access to justice. Outsourcing, unbundling and fixed fees may reduce costs for clients. Or they may have a softer impact: one US study that shows unbundled legal services “make little difference to outcome” but “enhance procedural fairness.” The CBA’s Reaching Equal Justice project takes a more cautious approach to limited scope retainers and recommends that they “are only offered in situations where they meet the meaningful access to justice standard.” Mitch Kowalski suggests that capping lawyers’ salaries would free up resources to be used in innovations and access to justice.

Some commentators have ventured that law schools have a role to play in facilitating access to justice: through offering practical learning opportunities like pro bono work and legal clinic internships, and by ensuring more low-income students get an opportunity to enter the profession.  The CBA’s Reaching Equal Justice project envisions a multifaceted role for law schools, and recommends that all graduating law students “know that fostering access to justice is part of their professional responsibility.” Yet law Professor Adam Dodek questioned this recommendation for assuming that access to justice is part of a Canadian lawyer’s professional responsibility, suggesting it needs to be matched by a commitment to access to justice within lawyers’ Codes of Professional Conduct.

The path to improving access to justice may differ substantially based on how we conceive of the “A2J” concept. Is it simply about keeping legal costs down, and providing alternatives to market-based legal services for those who need them? Or is it a more robust concept, requiring “that laws and remedies must be just, equitable, and sensitive to the needs of the poor and marginalized.” Tell us how you define access to justice, how we should get there, and what role law schools should play in that journey - next Tuesday October 22, at 7 pm EST, in the fourth of the CBA Futures Initiative’s weekly Twitter chats, hosted by Omar Ha-Redeye. #cbafutureschat

October 21, 2013 |
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