Improving your access to justice

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The Society encourages more affordable legal services model for Nova Scotians

Hiring a lawyer to take on just part of your case makes your legal costs more affordable. This practice – known as ‘unbundling’ – is starting to grow in popularity across the province, thanks to some much-needed clarification from the Nova Scotia Barristers’ Society.

Approximately two-thirds of low-income North American households can’t afford to bring their bankruptcies, divorces and other legal challenges to court, studies suggest.

Some may qualify for legal aid representation. Others don’t, yet can’t afford to retain private counsel. Either way, the research indicates many people miss out on access to justice each year – including here in Nova Scotia – simply because they can’t afford representation.

Fortunately, Canada’s legal sector is increasingly offering unbundled services, which can make legal representation much more affordable.

Also known as limited scope representation and discrete task representation, unbundling occurs when a lawyer agrees to represent a client for only a part of a proceeding, such as providing assistance with writing affidavits or cross-examining witnesses.

“These changes will encourage wider acceptance of unbundling throughout the legal community, subsequently making services more accessible to a growing segment of the public that would otherwise be forced to self-represent.” Darrel Pink, NSBS Executive Director 

Much better than nothing
Based in the criminal and family courts across the province, a small team of deeply knowledgeable legal aid duty counsellors offers on-the-spot advice to the more than 10,000 Nova Scotians who enter court each year without representation.

Duty counsel will meet with accused persons to explain charges, for example, or perhaps liaise with Crown prosecutors to try and speedily resolve the matter on the accused’s behalf. While they occasionally represent a client two or perhaps three times, their service is usually limited to that particular day, explains Lonny Queripel, non-custodial duty counsel with the Nova Scotia Legal Aid Commission

“I see a lot of folks who don’t comprehend in any meaningful way the seriousness of what they are facing,” he says.

If he can’t help resolve the matter that day, Lonny will advise the person on what’s likely to happen next and, if appropriate, explain how they can apply for full legal aid representation. He or a non-lawyer colleague may also point the accused toward relevant community resources such as a homeless shelter or an addiction centre.

“Even though our representation is limited in scope, we’re still providing a vital, valuable service at an extremely critical and vulnerable junction in peoples’ lives,” he says.

In addition, the Commission also provides limited scope services to Nova Scotians who don’t qualify for legal aid and who don’t retain private counsel.

The relentless increase in the complexity of cases over the past few decades makes successful self-representation far less likely, says Joel Pink QC, a Halifax-based criminal lawyer.

“Cases used to take four days. Now they take a month. That can cost $60,000 to $70,000. As such, most people are forced to represent themselves,” says Joel.

“But you can’t expect a lay person to deal with the complexities of fraud trials and conspiracy cases, a Charter motion or maybe a wiretap issue on a drug charge, for example. So that’s where a lawyer may come in – on a limited scope basis.”

He also predicts: “The increasing costs mean limited scope will become more and more popular.”

Potential problems
Despite limited scope’s potential for cutting legal costs and subsequently improving access to justice, the practice isn’t without potential pitfalls – for both the public and the lawyers they retain.

For example, opponents cite ethical concerns about lawyers’ professional responsibility to their clients. For one, lawyers owe the court a ‘duty of candour’ in their dealings with the court. By working on a lawsuit on behalf of a client but failing to appear, some argue this duty is violated.

Then there’s the difference between providing legal ‘information’, legal ‘advice’ and legal ‘assistance’. This distinction is important because, if lawyers provide legal advice and assistance, they cannot avoid the accompanying duties and consequences of the lawyer-client relationship.

Moreover, critics claim that, should a lawyer limit the scope of representation, they might escape a malpractice claim – despite having actually committed it.

Still others fear that poor lawyer-client communication can confuse who is responsible for what aspect of the case – causing important issues to fall through the cracks.

The Nova Scotia Barristers’ Society has moved to encourage the practice by providing much-needed clarity around the use of unbundling, while remaining keenly alert to its potential positives and negatives for both lawyers and the public.

This year, the Society updated its Code of Professional Conduct, publishing more specific rules for lawyers’ provision of limited representation. The new rules aim to improve ethics and competence of lawyers providing unbundled services.

The changes include a call to communicate effectively in order to avoid confusion about the extent of limited scope services, along with a new rule to clarify how opposing counsel can deal with a limited scope client.

Says Darrel Pink, the Society’s Executive Director: “These changes will encourage wider acceptance of unbundling throughout the legal community, subsequently making services more accessible to a growing segment of the public that would otherwise be forced to self-represent.”

The areas of practice most likely to be affected by the new rules are family law and criminal law.

“Having said that, I can’t imagine any area of the law that doesn’t benefit from this,” he says.

In family court, lawyers can be retained to file documents without appearing in court, “because the intake process in family court is highly paperwork-focused,” he says.

Similarly, in small claims court, lawyers can offer a fixed fee for providing specific documentation. And in corporate and commercial law, limited scope retainers can be used for assistance in one precise part of a transaction, leaving parties to negotiate among themselves in other areas.

Going forward, the Society’s clarification and ongoing support of limited scope should make it easier for the Nova Scotia Legal Aid Commission to expand its limited scope offering to people facing family law challenges such as divorce and custody issues, says Karen Hudson QC, its executive director.

“That’s more services to more Nova Scotians at the end of the day – a good thing when you consider the increasing number of people who are representing themselves in family court these days,” she says.

Adds Joel: “I’m an extremely experienced criminal lawyer who has been using limited scope for some time. I’m well aware of the pitfalls, such as poor communication. Nevertheless, I do find myself sometimes having to rely on guidance from the Society’s Code of Professional Conduct. This clarification will promote limited scope among the province’s lawyers – and that can only be good for all Nova Scotians.”

Win win
Improving public access to legal services is one of the Society’s top strategic priorities. Nevertheless, lawyers can potentially benefit from the Society’s clarification too.

“In an age when online document processing services increasingly threaten to commoditize the profession, it will be up to lawyers to determine how to take advantage of limited scope,” says Darrel.

“Clarifying how they can use it opens the door to lawyers doing some very niche things in high volumes.”