In January, I began researching and exploring the concept of legal coaching in family law. If you haven’t heard of legal coaching, you’re not alone. Few lawyers — and even fewer members of the public — are familiar with this practice model.
Legal coaching is pretty much what it sounds like: A lawyer works with a client to offer behind-the-scenes guidance. The lawyer provides the strategies, knowledge and tools the client needs to advance her case as effectively as possible on her own when retaining a lawyer full-time is simply not an option. Coaching offers substantive legal assistance but also much-needed help navigating the process and tips on courtroom etiquette and decorum.
I believe legal coaching has the potential to serve as an access to justice tool, not just in family law but in other areas of civil litigation, including employment, estate litigation and administrative law.
While some lawyers have been coaching clients informally for years, the goal of this project — which is the brainchild of the National Self-Represented Litigants Project — is to formalize and expand this model.
Since January, I’ve personally interviewed or met with almost 60 lawyers and justice sector leaders, and I’ve surveyed an additional 55 lawyers. By this fall, I will have developed a training program for family lawyers interested in integrating legal coaching into their practices.
While legal coaching is a form of unbundled practice, it offers advantages traditional unbundling does not. Coaching lowers costs, provides clients with more control over their file and teaches skills that will be useful post-separation. All of this builds confidence in lawyers and the justice system — something the profession could always use more of.
Legal coaching also benefits lawyers, who report enhanced professional satisfaction, more work-life balance and control over their practice, fewer accounts receivables and an expanded client pool.
Despite these reported benefits, few lawyers actively promote themselves as legal coaches. While some are willing to offer unbundled or coaching services if asked by a client, most still do so under the radar. Not surprisingly, even members of the public who know to look for limited-scope services report they cannot find lawyers to provide them.
In Ontario every year, at least 80,000 people try to navigate the family law system on their own. The Ryerson Legal Innovation Zone points out that if even just half of these individuals would be willing to purchase between $1,000 and $5,000 worth of legal services, we’d be looking at an unmet market opportunity for lawyers of between $40 million and $200 million a year.
This figure is staggering, so why are more family lawyers not embracing these alternative practice models?
First and foremost, lawyers are understandably concerned about liability. Notwithstanding years of research, case law and policy changes that facilitate the use of limited-scope retainers, fear of liability continues to be one of the main barriers to the expansion of limited-scope representation.
And, yet, the lawyers I’ve interviewed tell me they believe their liability is actually reduced when they deliver unbundling and coaching services. This is because their clients are more informed about the process and the service they’re receiving and feel a shared responsibility for the outcome of the file. These lawyers also take appropriate steps to manage their risk, including preparing detailed limited-scope retainers.
In practice, there is no evidence that lawyers who provide unbundled or coaching services are more (or even as) likely to face negligence claims than lawyers working on comprehensive retainers. Between 2009-15, just 5.8 per cent of Ontario family law claims (filed against lawyers with full retainers and those with limited scope retainers) involved a dispute related to the scope of the retainer.
Another reason why lawyers are not embracing these practice models is because the public is not aware that these services exist.
We know in theory there is a market for unbundling and coaching. I’ve personally spoken with former self-represented litigants who tell me they wish they’d known about legal coaching when they were in litigation. But the existence of a potential market is not the same as a clear demand for these services. Most Canadians continue to assume they have two options: Hire a full-service lawyer or go it on their own.
To date, responsibility for providing clients with a third option — partial legal services — has rested solely on the shoulders of private bar lawyers. Yet individual lawyers cannot be expected to build the level of public awareness required to scale demand.
I propose a multi-platform public education campaign, led by the attorney general of each province and supported and supplemented by law societies and professional associations across the country, designed to educate the public about the availability and value of unbundling and legal coaching.
Finally, if we expect the bar to embrace unbundling and legal coaching, we need a professional culture that values limited-scope services: Lawyers who develop these practice models need to be recognized and applauded. Law schools need to teach students about their importance as an access to justice tool and their viability. Judges should be encouraged to respect the limits of these retainers. Professional bar associations can offer training at nominal rates, and regulators and insurers can provide incentives for licensees who take the time to learn how to provide these services in a safe and effective manner.
Changing the legal culture will take time, effort and resources. Collaboration among all justice sector players will be key. Yet, given the vital public interest and access to justice principles at stake, nothing short of a systemic, profession-wide strategy will do.
While there may be no panacea for the problems faced by the family justice system, legal coaching can expand access for large numbers of Canadians who would otherwise go without any legal advice or representation. It’s time to start leveraging the potential of this model.
Nikki Gershbain is the national director of Pro Bono Students Canada and a former family lawyer. She is currently on leave, having received a fellowship from the Law Foundation of Ontario to work on a legal coaching initiative with the National Self-Represented Litigants Project.