[Editor's Note: Last November 16-17, I was invited to participate in the the first Canadian National Pro Bono Conference, co-sponsored by Pro Bono Law Ontario and Pro Bono Law of British Columbia. The event marked the first ever national conference to discuss pro bono legal service and its impact on low-income Canadians. Attendees hailed from a spectrum of community groups, legal aid programs, law firms, law societies, foundations, and government agencies. One of the most resonant themes of the conference for me was the need to understand the role and contribution of pro bono services rendered by the private bar within the broader goal of guaranteeing affordable access to the legal system for all. Over the past few years, this same impulse has led Pro Bono Net to broaden our mission to encompass new and important access-to-justice initiatives: the development of the statewide consumer legal information portals under LawHelp.org; collaborations with the Self-Represented Litigants Network, the National Center for State Courts and others on SelfHelpSupport.org; and most recently, to our stewardship of the NPADO (National Public Automated Documents Online) initiative, a national legal services document assembly project.
The case for taking this broader view on the role of pro bono was eloquently made by the eminent Canadian litigator David W. Scott, a partner at Borden Ladner Gervais LLP and a director of Pro Bono Law Ontario, in his conference remarks, which he has kindly given us permission to excerpt below. -- MO'B]
I would like to talk about access to justice in our own courts in this country, about which so many organizations involved in pro bono services are concerned. The focus of such services is largely . . . directed to the indigent and those in our culture who do not qualify for legal aid or for whom legal aid services in one form or another are unavailable.
For the purpose of assessing the current state of the administration of justice, I would like to direct the discussion to the plight of the ordinary citizen, that is to say the non-institutional client, whether or not that person is in the indigent category or member of the middle class, in terms of their capacity under current conditions and in practical terms, to secure access to the courts in civil matters.
Recently I read an article in my university alumni magazine about a small businessman, Ashkan K. After graduation from university, Ashkan joined an IT company and began to develop a career in the world of technology. His life was interrupted when the business was sold, the principals capitalizing on their investment and ingenuity, with Ashkan left out of work. He decided to establish his own business in the same general field. Hardly had he started when suddenly, without any warning, he was sued by the company which had acquired his previous employer, a large international conglomerate which alleged that Ashkan was using proprietary information in the operation of his business. He consulted several lawyers and was told that it would cost between $20,000 and $100,000 to resist the lawsuit and in particular the application for injunctive relief. Not surprisingly, he could not afford a lawyer, so he exercised the only option available and chose to represent himself. He found the process side of the exercise incomprehensible and unnerving with a level of stress which multiplied the anxiety he would have otherwise experienced with a lawyer. Notwithstanding, he attended alone on the appointed day before the presiding judge and after an extensive argument, the application for a preliminary injunction was miraculously dismissed. The lawsuit is ongoing and Ashkan continues to act as his own lawyer. As with all lawsuits, the final disposition of the matter is uncertain. Thus the story of a no doubt intelligent person who, not surprisingly, could not afford the services of a lawyer in the nightmare which he faced. Accordingly he defended himself without a lawyer and thereby joined the growing category of ordinary citizens who act as their own lawyer for economic reasons alone.
While the story of Ashkan’s journey is not about a member of a disenfranchised group or the traditional pro bono clientele – those living below the poverty line – the message conveyed is the same. Access to justice in society is seriously compromised by a combination of the complexity of the dispute resolution process and the inordinately high cost of legal services.
The Ability of the Profession and Its Members to Change
The intent of my discussion this evening is to test our professional contentment with our present level of access to justice and our appetite, if any, for real change. While there have been many recent developments in the administration of justice, we are still, as lawyers and judges, a distinctly conservative professional group with our values deeply rooted in historical experience largely associated with the development of the common law. Change does not come easily. Two rhetorical questions arise in these brief comments: Should the public be reasonably happy with the current processes by which the public achieves access to the courts? If not, what options are there for change which might meet society’s needs?
The Rise of Self-Representation in Our Courts and Its Causes
Although hard statistical information is limited, the consensus is that self-representation is rapidly on the rise and that it is in large measure a phenomenon that is driven by the high cost of legal services. In some jurisdictions, at least one party to a dispute is self-represented between 50-75% of the time upon the initiation of a lawsuit.
In civil litigation generally, studies in the United States show that self-representation across the spectrum of civil litigation is rapidly becoming commonplace.
Studies have recently been undertaken across the provinces by the courts and the profession, in particular the Canadian Judicial Council, about self-representation as a developing phenomenon. The message is the same… in the absence of a major shift in the delivery of legal services, the self-represented litigant is here to stay and her numbers will increase exponentially.
While many explanations for the phenomenon are offered, [studies suggest that] amongst disparate factors, “foremost is an increase in the number of persons who are unable to afford a lawyer,” a rather obtuse way of expressing the reality that we are experiencing a dramatic increase in the cost of securing the services of a lawyer. One of the reasons advanced for the current (and rising) cost of legal services is … the growth of the phenomenon to the “new economy,” a reconfiguring of wealth, knowledge and power in society. With the emphasis on competitiveness, employability and prosperity effectively resulting in the urbanization of lawyers and the provision of services through specialized, or at least larger firms, and the consequent escalation of legal fees. [A] picture appears to be emerging of lawyers congregating in established practices in larger centres with business-driven management goals, resulting ultimately in a higher cost of legal services.
How should the Bar and society generally assess this phenomenon?
The Rule of Law
Lawyers and judges pride themselves in their collective commitment to the Rule of Law, access to justice and an independent Bar, notions which constitute the centrepiece of our system to which we are all committed. What is the relationship between these sacred principles and the current plight of the citizen/client, such as our friend Ashkan, in the 21st century?
Surely there is no meaningful access to justice for the citizen below, or indeed well above, the poverty line who cannot afford a lawyer in the present environment. Furthermore, in many times and places, self-represented litigants are regarded by the custodians of the system as a nuisance.
What about the notion so critical to the role of the profession in society, the concept of the Independence of the Bar? In an environment of self-governance, can we discuss our Independence without discussing our obligations? Can we legitimately claim recognition of our Independence when the ordinary citizen does not have practical access to our services?
What are the Options for Correcting the Situation?
In the face of the reality of accessibility, [a 2005] Alberta Task Force study succinctly captured the options facing the custodians of the system in noting that “the most effective response to the growing number of self-represented litigants may be to improve the availability of legal representation to persons who cannot afford a lawyer…the other option is to help self-represented litigants to better represent themselves.” Either make legal services available, or make self-representation a viable option. These are starkly competing ideas.
So the challenge for all of us in the legal profession is the availability of our services. Raising the profile and the range of pro bono services is not the complete answer. Should we develop with the involvement of our Law Society regulators – for example sliding scales of fees, improved prepaid legal services, new categories of service providers, expanded use of paralegal service, unbundled service offerings? We are a self-governed monopoly so the ideas ordinarily generated by competing forces are not easily forthcoming. We must find them nonetheless, or our commitment to access will be confined, to our detriment, to improving the plight of the self-represented litigant alone.
Facilities for Self-Help
If self-representation is to be treated as an option, it must be facilitated by meaningful processes to ensure access. The courts must provide intake services to assist the ordinary citizen in accessing the courts and demystifying the process. It must develop user-materials which are manageable and it must provide aide stations when a movable impediment to progress is encountered. Access through self-representation must have administrative mechanisms and judicial oversights. It is not enough to focus on the problem of judicial management of the self-represented as has traditionally been the case and to a degree is the current preoccupation of the judiciary. We have to elevate our concerns about the plight of the litigant and make her path more manageable at the point of entry.
In the United States, under the aegis of the National Center for State Courts, there has recently been a burgeoning effort to accommodate the reality of self-represented litigants. The National Center for State Courts and the Conference of State Court Administrators has published extensive studies on the subject. If one accesses the NCSC website, one will see an extensive display of information and resources generated to provide pro se self-help information in the courthouse, including the services of paralegals in providing assistance to self-represented persons, access to websites which explain the process, and video links to provide demonstrates…. Much discussion is underway in this country, but the time has come to replace musing with action if our claims to the benefits of our system are to survive.
By way of conclusion . . . if services for the citizen who wishes to self-represent were made available, a reasonable case could be made for the proposition that the result would be a simplification of our traditional processes. I further believe that the provision of such services would generate a competitive reaction by the Bar to meet the challenge of self-representation and create service offerings by the profession for the ordinary citizen tailored to their needs.