Professional Protectionism and Legal Reform. [1]

Our legal system, our courts and in particular our family courts are facing a major crisis.  Fewer and fewer people can afford full legal representation.  As a result, more and more litigants are forced to represent themselves in court.  The numbers are staggering—over 50%, and in some urban courts closer to 80%, of family litigants appear without counsel, as do 30-50% of litigants in civil courts. Many have had lawyers representing them, but can no longer afford them.   This is a systemic problem of enormous consequence for access to justice and for the faith of the public in our legal institutions.  The sources of this crisis are deeply embedded in the structure of the legal system, the culture of the legal profession, and in the institutional framework we have created for dealing with family conflict.

All of us who work on family conflict have an obligation to face this problem head on and to address it on a systemic level.  Of course Legal Aid needs more resources but the sheer scale of the problem means that public funding alone cannot solve it.  This is an enduring challenge requiring a long term, multi-dimensional response.

A good place to start is for professional groups to embrace the reality of the challenge, to stop mischaracterizing those who represent themselves as problematic or “vexatious,” and above all to get beyond a reflexive impulse to protect our own turf at all costs. Unfortunately, turf protection seems to be the dominant response.

Conflict intervention organizations, potentially an important part of the solution, have unfortunately become part of the problem.  Family mediation groups have been quick to dismiss any reforms that are not focused on mediation.  Collaborative practice organizations have resisted reforms that are not about promoting the role of collaborative practice.  And multi-disciplinary organizations (such as ACR and AFCC) have failed to create an adequate space for genuine dialogue about this.

One particularly disappointing example of how this has played out has been in Ontario, where I live.  A little background: in Ontario, paralegals are prohibited from working on any family matters. This blocks access to a lower cost option that could provide some assistance to those who otherwise have to represent themselves. Recognizing the problem, as well as the sensitivity of the family bar to allowing paralegals to take on some family law tasks, the Ontario Ministry of the Attorney-General and the Law Society of Upper Canada appointed Justice Annemarie Bonkalo to lead a review of the regulations governing family legal services in Ontario.  In a very thoughtful report, Justice Bonkalo recommended (among other things) the creation of a new licensing procedure to permit some paralegals to provide a limited range of divorce related services.  Paralegals would not be permitted to handle complex cases or to appear in a trial.  The Bonkalo report was careful to stipulate that the legal profession should determine the detail of the new licensing procedure, and what paralegals could and could not do. The full report can be accessed here.

This broad recommendation for a modest loosening of the legal profession’s monopoly over family legal services ought to receive the support of all professional groups committed to helping families through divorce, Instead it has been heavily attacked by, among other groups, the Ontario Bar Association, the Advocate's Society, the ADR Institute of Ontario, Family Mediation Canada, the Ontario Collaborative Law Federation, and the Association of Family Conciliation Courts—Ontario Chapter (AFCC-O).

As a member of AFCC-O I have taken a particular interest in their response. I addressed many of these issues in the keynote talk I presented to the AFCC annual conference last June.  Perhaps not surprisingly, I was extremely disappointed by the Ontario chapter’s response to Bonkalo. It was negative, dismissive even, of the proposal to allow paralegals to handle some family cases (it was more supportive of the Report’s proposals about encouraging limited scope retainers).  The Chapter’s statement went so far as to suggest what was needed were more stringent penalties for self-represented litigants deemed to be “vexatious “ (while not apparently concerned about vexatious lawyers). The essence of the Chapter’s response to Bonkalo was to justify and protect the monopoly of the legal profession while ignoring the huge access to justice  crisis that the legal system faces.  The Chapter’s statement can be reviewed here.

I have written a short commentary on the statement, which I have asked be circulated to the AFCC-O members or published in their newsletter.  While not wanting to directly publish my response, the Board of the Chapter agreed to insert a link to it in its fall newsletter.  My comments can be viewed below.

I am sad about the attitude of professional organizations that I have otherwise been very supportive of.  We face an enormous problem calling for bold leadership that is committed to serving the public, rather than protecting the profession.  Unfortunately, at least in this case, our field has failed an important test.  No wonder the public is dubious about our capacity to make a difference.