Prudence versus Access to Justice

Rob Harvie (a family lawyer, Law Society of Alberta Bencher, and member of the National Self-Represented Litigants Project Advisory Board) wrote an article titled “Checking Our Egos and Accepting Our Part is Fundamental to Restoring Public Trust in the Justice System”. http://representingyourselfcanada.com/2014/12/03/checking-our-egos-and-accepting-our-part-is-fundamental-to-restoring-public-trust-in-the-justice-system/

Harvie writes that:

The first problem we need to acknowledge is the way we lawyers regulate and respond to risk.  Lawyers deliver their services partly to answer the needs of their client, but to a great extent, to prevent getting sued or being reported to their regulator.  As a member of a regulatory body, I can assure you that having to answer to your regulator is no easy task.  Regulators take their job to protect the public very seriously.  But, in doing that, there is a cost to the public.

Where the laws change so rapidly and continually, in order to forestall potential lawsuits, it is more prudent for a lawyer to do too much.  Hence ever rising legal bills as lawyers struggle to turn over every stone in the discovery and research process.  As well – and as many SRLs know – few lawyers are willing to engage their clients on a limited scope retainer basis.  Doing less rather than more sets off that same warning about risk – while a client might hire you to only do “A”, you might also be obligated to do “B”…

Think about that for a moment. Our regulator tells us it is OUR responsibility to determine if the matter is “too complex” to offer limited scope work. Like the client will be better off with NO legal assistance than SOME legal assistance when we accede to our regulator’s suggestion and refuse the limited scope retainer on complex matters. And what is “too complex”? Do you want to risk explaining that down the road to a judge – or would it be safer just to refuse the request to begin with? You see the problem.

 

As lawyers continue to ignore a vast majority of the population, we have opened the door for non-lawyers to provide legal services. Lawyers are effectively losing their right to a monopoly.

The regulators, the judiciary, the bar have all contributed to designing a system that excludes people who are not wealthy or able-bodied. We have a real issue when the members of the bar cannot afford to hire themselves for legal advice.

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