Dr Julie MacFarlane

Fire in the hole: Why every lawyer needs to care about access to justice

By Dr. Julie MacFarlane

This piece originally appeared on Dr Julie MacFarlane’s blog on Dec.8, 2013

In the last 12 weeks I have made many presentations about the results of the National Self-Represented Litigants (SRL) Study to audiences of lawyers and justice system professionals, as well as to other public (“non-lawyer”) audiences. In some instances, I have spoken alongside SRLs from our SRL Speakers Bank who have shared their stories and reflections first-hand with the audience.

Parallel universes

As the weeks go by, I am developing the creeping sense that I am living in two parallel universes. When I speak to public audiences, there is a ready acknowledgement of “everything you just said” – as I am often told. There is personal heartbreak but also genuine concern for the future of our justice system, and the promise of access to justice. “Do lawyers realize how bad/ urgent/ broken this is?” I am constantly asked.

I always say, “Yes, many lawyers do realize this” – but in truth, there are also some in our profession who apparently do not. Far more times than I care to count, lawyers have told me their response to a disappointed public (whom they appear to believe consist of a few SRLs who are sore because they lost their cases) is: “The public should be assured that the legal system has worked well for 150 years, and we must trust it to continue to take care of us all.”

Down the rabbit hole

It is probably unsurprising then, that when participating in gatherings of legal professionals I often feel isolated. Sometimes I feel like Alice emerging from the rabbit hole into Wonderland, where so many things appear initially familiar but on closer inspection, are a little…..well…..a little off.

In the legal conferences I have attended this Fall there is an upbeat and often self-congratulatory tone, despite the chaos and dysfunction that is threatening to engulf our courts and justice system. The focus is often on small matters of internal reorganization rather than on the larger picture. Some of my colleagues seem unconcerned about what is happening at the other end of the rabbit hole. In our court registries, in hearing rooms and courtrooms, in duty counsel’s office or in the courthouse legal information services, there is a flood of people desperate for help –anxious, confused, distressed, emotional, and sometimes angry. Ask anyone working at any of these locations.

It makes me want to stand up in the middle of the room and shout “Fire!”

The elephant in the room

I really do understand why many lawyers do not want to hear someone talking about SRLs as anything other than the make-work irritation they experience them to be. As soon as I begin to speak about SRLs at legal conferences, the tension is palpable – on faces, in body language, in the air. “Oh, there she goes again…”

But this reaction confirms to me the importance of naming the scale of the problem that we are facing – and to find ways to talk about it without defensiveness, antagonism or defeatism. We are smart people, we are deeply committed to our work, and we can and must figure out how to respond to this crisis – in multiple small ways since there is no magical single fix here – but first, we have to care about the question of access to justice.

So – I make two suggestions below for why even those lawyers who are financially secure in their practices, and/or and are relatively unaffected by SRLs because they serve corporate clients, and/or feel somewhat removed from the challenges that SRLs bring – should nonetheless care deeply about what is happening in our justice system.

The bargain of self-regulation

There is a profound disconnect between ordinary Canadians and the legal profession. This was true when I wrote The New Lawyer five years ago (see the opening story of chapter one) – but it is even more true today, with the huge rise in SRLs.

We have to care about this fact, however well populated with paying clients our present practices are. We are a self-regulated profession, and our bargain with the public is that we are committed to regulation “in the public interest.” Neither this mandate, nor our fundamental legitimacy as a profession, are sustainable if lawyers can only serve a small fraction of Canadians – and most of those represented by corporations.

Debates over relaxing regulation – to allow para-legals to handle more matters, to permit the selling of legal services in different financial models, to encourage multi-disciplinary partnerships – have consistently been met with efforts to control, defend, protect. The control strategy is not working – the disconnect just keeps getting bigger. This genie is not going back in the bottle.

Passing the torch

There is a new generation of lawyers coming up behind us. The traditional models of adversarial advocacy, all-or-nothing representation and the billable hour that have proved profitable – albeit to a diminishing extent – for this generation of lawyers are not acceptable to sophisticated millennial consumers.

The signs are clear. Corporate clients are increasingly exploring outsourcing. They have already moved much of their legal work in-house where they can exert more client control over strategy and costs. All but the very wealthiest of personal clients have told the Bar that they cannot afford their services. Personal and corporate clients are increasingly skeptical about a traditional professional relationship wherein they are simply told what to do, rather than considered partners in decision-making, where often they feel unlistened to and disregarded.

Aspiring lawyers are well aware of public skepticism towards the profession and the increasing difficulty many experience in making an income. Law school admissions are down 50% in some US law schools, and a similar trend is now noticeable in Canadian schools. New calls Bar to the are beginning to explore ways in which that they can develop practices to serve the disenfranchised who cannot afford legal services in the traditional model. These courageous innovators need your support and mentorship.

If the next generation of lawyers is to have clients, this generation of lawyers has to care about the legacy it leaves to them. We have to re-earn public confidence, and that begins with caring about access to justice. Many lawyers already do. As a result they are ready to work with their regulators, their judiciary and courts, and yes, even SRLs (aka the public) to address the justice crisis.

Join us

Back in Wonderland, the evacuation sirens are going off.

Please, if you are still on the wrong side of the rabbit hole – join your colleagues in re-imagining the value that lawyers can bring to clients, re-establishing the credibility of the legal profession among ordinary Canadians, and re-commiting to both the ideals and the reality of access to justice.

Dr. Julie Macfarlane is Professor at the Faculty of Law of the University of Windsor as well as Professor of Practice at the Kroc Institute for International Peace Studies at the University of Notre Dame.
Her blog features regular discussion on the serious contemplation of system change, reflecting the findings of the National Self-Represented Litigants Research Study.