When lawyers are only for the rich

Loreto Gonzalez is one of them. After representing herself for almost three months in a lawsuit against her former lawyer, she turned to Law Help Ontario. The centre gave her the confidence, she says, to stand alone before a judge. “The legal system is a clique,” says Gonzalez, 41. “If you’re not a member of the clique, it’s hard to represent yourself.”

The first legal self-help centre opened in Vancouver in 2005. Alberta now has three such centres, with more to come. A recent report on P.E.I.’s unrepresented litigants recommended setting up a centre there, too. Diana Lowe is executive director of the Canadian Forum on Civil Justice, whose report on the trend was instrumental in designing Alberta’s self-help centres. “If someone doesn’t have a lawyer retained in the traditional sense, at least they have access to someone who can give advice,” she says.

Meanwhile, a growing number of private practice lawyers are also helping the unrepresented—for a fee. They’re offering services à la carte: as a cheaper alternative to full representation, lawyers might be hired just to help complete a document, or coach a client before he goes to court. Already popular in the U.S., “unbundled” legal services are now taking off here. Law societies in B.C. and Alberta have promoted them as an access to justice initiative, but lawyers stand to benefit, too. Sue Talia, a California-based expert on unbundled legal services, has addressed Canadian lawyers on the subject. “I tell them, ‘If you want to learn how to tap into a completely new pool of clients, listen up,’ ” she says.

Even the courts themselves are having to change the way they operate to deal with the influx of lawyerless litigants. Nova Scotia and Ontario recently announced changes aimed at streamlining the civil justice system; though Ontario’s reforms weren’t driven by the needs of the unrepresented, “they will help the unrepresented, because it will make the system work more quickly, and at a lower cost,” says Coulter Osborne, former associate chief justice of Ontario, whose report was the basis for reforms. Next year, Ontario’s small claims court (where lawyers aren’t generally necessary) will start accepting cases of up to $25,000, up from $10,000.

All this has got people in the legal community doing some serious soul-searching. In June, Jordan Furlong, editor-in-chief of the CBA’s National magazine, wrote an editorial raising the possibility that we’re headed toward a “post-lawyer justice system.”

To Alice Woolley, that’s a sad state of affairs, one that strikes a blow against one of the most fundamental rights in any democracy: access to effective justice. “People need lawyers,” Woolley says. “People may do without them, but they do so at a cost.” Parachuting in a lawyer for a short-term appearance is hardly a solution, adds Frank Addario, president of the Criminal Lawyers’ Association. “A trial is a complex, dynamic event,” he says. “Lawyers can pick up and exploit any nuances. You don’t get that with piecework.”

As Ontario’s chief justice, Warren Winkler has dealt with unrepresented litigants countless times. “Anything that makes it easier for people to access the system, I say is good,” he says. However, making self-representation easier “is a band-aid approach,” he says. “It’s loaded with compromises.” In fact, Winkler sees it as the red flag of a much bigger problem. “I think our goal should be to turn the trend around: to make lawyers, and the justice system in its traditional sense, more accessible,” he says. “Then, the problem would go away.”

As for Augustine, her own legal problems did eventually go away—once she found a lawyer. After over a year of representing herself and getting nowhere, she heard about Downtown Legal Services, which provides a service akin to full representation. There, law students, under the guidance of a lawyer, worked closely with her on the file. When it was time to go to court, the supervising lawyer represented her. “She encouraged my ex’s lawyer to back down,” Augustine says. “It was a level playing field.”

A level playing field might strike most people as a basic right. Today, though, it seems increasingly reserved for the lucky, and the rich.

This is the first in a five-part series of stories on the crisis in Canada’s legal system.