Paralegal debate: let’s settle for ‘better’ not ‘perfect’ access to justice

Thursday, July 27, 2017

The current debate about paralegal representation in Ontario’s family courts, and the degree of opposition to it in the bar and judiciary, exemplify just how far the profession is removed from reality.

The lawyers and judges opposing the change rest their case on the belief that “quality of service” will erode unless those delivering the service have the equivalent of law school training. Those in favour argue that paralegal representation will reduce the number of unrepresented litigants in family court.

The counterargument to those in favour is that self-representation has actually increased since Ontario started licensing paralegals in 2007. The response is that since paralegals have not been allowed to counsel on family matters to date, the increase in self-representation in the courts generally has little bearing on the specific issues facing family law stakeholders.

In an earlier column in this publication, Joseph Griffiths, a litigator with Equilibrium Law in Ottawa, argues that the focus should be on securing “better and more objective data about the causes of self-representation in Ontario.” He cites a 2009 study commissioned by the Law Society of Upper Canada, Legal Aid Ontario and Pro Bono Law Ontario that found that only a “third of those who retained a lawyer paid more than $1,000” to receive legal assistance.” The authors of the study also concluded that “People often can’t find the legal help because they don’t know where to look, or because they perceive they won’t be able to afford it.”

The upshot, according to Griffiths, is that it is “at least arguable” that expanding the market for providers of family law legal advice will not “dramatically” lower self-representation rates. The flaw in Griffith’s argument is that we don’t know what services were obtained by the two-thirds of respondents who ended up with a lawyer’s bill of less than $1,000. What if it was mostly drafting wills or buying or selling residential real estate? The inherently ongoing nature of family law matters and the complexities involve suggest that keeping costs under $1,000, given current hourly rates, would be a challenge indeed.

Those against paralegal representation are missing the point. They fail to recognize that “quality of service” and “access to justice” don’t necessarily go hand in hand. Even sophisticated clients are telling their law firms that they don’t want gold-plated standards.

As I pointed out in an earlier column, LexisNexis research has revealed that lawyers try to provide the best advice they can while clients only want to hear what is “good enough.” Rather than recognizing the gulf between provider and customer, law firms protest that “good enough” is not sufficient and complain that clients want “Rolls-Royce service at bargain-basement prices.”

In my view, these observations are as true for the family law bar as they are for the business law bar serving high-end clients. If lawyers are going to remain relevant, they’ll have to forget about “perfect” access to justice and settle for “better” access to justice, as their clients are apparently willing to do. It’s hard to imagine that a properly trained and regulated lower-cost paralegal sector wouldn’t go some distance in easing the self-representation conundrum in family law.

Remember, for those cases that go to court, we also have judges. The combination of regulation and judicial oversight ought to weed out the incompetent paralegals as well as it weeds out the incompetent lawyers. Denying this proposition suggests that the way we regulate lawyers or paralegals, or both, is inadequate — and that’s a different issue.

As usual, opposing expansion of the legal services market or putting roadblocks in the way seems to be the default for the profession, in Canada and elsewhere. Less than 30 years ago, lawyers concentrated on fighting each other. Indeed, if the Supreme Court of Canada hadn’t decided Black v. Law Society of Alberta by allowing McCarthy Tétrault LLP to establish an office in Alberta over the fierce objections of the profession there, national firms might still not exist in this country.

The difference today is that lawyers have banded together to fight their common enemy: progress. So they oppose the expansion of paralegal services in Ontario, put the death knell to alternative business structures in Canada, prefer — according to a recent poll in the United Kingdom — to adhere to traditional models of doing business, and fight extended hours in British courts as a way of dealing with backlogs in the courts.

According to Jordan Furlong, a respected legal consultant and commentator, hope is in the offing. He points out that millennials are averse to “time-based” anything, something that will “accelerate the drive toward reliable pricing of their legal service.”

But we’re not there yet. The ninth annual Altman Weil Law Firms in Transition Survey says 65 per cent of managing partners have lost confidence in their partners’ willingness to change how they operate.

Is it any wonder so many people prefer to represent themselves?

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