Unbundling for the underserved family law client

Proponents of unbundling family law services say it can help access to justice and tap into a new market. Family law lawyers have access to an untapped market, and many of them aren’t taking advantage of it.

Unbundling for the underserved family law client
Illustration: Jeannie Phan
Proponents of unbundling family law services say it can help access to justice and tap into a new market.

Family law lawyers have access to an untapped market, and many of them aren’t taking advantage of it.

That’s the argument being made by proponents of legal coaching, which Nikki Gershbain, national director at Pro Bono Students Canada, describes as a hybrid of unbundling and self-help.

There’s this large cohort of individuals who have no intention of hiring a lawyer, Gershbain says, but by promoting unbundled services, “what we’re talking about is an expansion of legal need not a narrowing” and savvy lawyers will offer this as a service knowing there is a market of people who “otherwise wouldn’t bother doing it at all.”

“It’s amazing how many people would do a good job of moving cases forward if they had support at key moments,” she adds, noting legal aid thresholds — even with recent increases — are so low very few are eligible, and yet the cost of legal services continues to increase, becoming increasingly out of reach for ordinary Canadians.

Gershbain was awarded a Community Leadership in Justice Fellowship from the Law Foundation of Ontario last June. She is taking a one-year leave from PBSC to partner with Julie Macfarlane, a law professor at Windsor University, on her National Self-Represented Litigants Project. The project was born from Macfarlane’s research over the past few years where she studied more than 200 self-represented litigants.

Macfarlane says she focused on family law — the “heart of legal services” — in her work as that’s the place where ordinary citizens are most likely to come into contact with the legal system.

Gershbain will be developing curriculum and training materials to be used for professional development work with lawyers to encourage them to incorporate unbundling into their practices.

“The suggestion here is not that unbundling or coaching is a panacea,” she says. “I think we would all agree in the profession that full representation is the gold standard. But the reality is that is no longer realistic. The goal is for every person who needs a lawyer to have access to a lawyer — especially in family law where the stakes are so high.”

Despite unbundling not being a perfect solution, Gershbain calls it a “major trend right now” and argues that the profession has an obligation to “encourage lawyers to offer it, train them to understand what’s different about this model and to encourage them to promote the service so clients are aware of the fact this is an option for them.”

The project is also developing a national database of family lawyers across Canada who offer unbundled services. Macfarlane says there are provincially based projects she is co-ordinating with to get more names on the list, adding it’s “only recently we’ve been seeing a sea change with more people willing to come forward.”

“There’s a real disconnect in the market — we hear from people literally every day looking for people to do what we might call unbundling or coaching, but they don’t have anywhere to look for that but to call every single lawyer in the phone book because it’s not being advertised or promoted to the public.”

Philip Epstein, senior partner at Epstein Cole LLP in Toronto, encourages lawyers at his firm to offer unbundling, saying it’s desperately needed.

“Lawyers can coach — explain to the client what they need to do and don’t need to do,” he says.

Coaching is “very new language” and Gershbain stresses this is not about lawyers becoming non-legal coaches but providing support, guidance and the tools needed to effectively get clients through litigation.

Macfarlane says that although the self-reps she spoke to talked about just such a model, the term unbundling doesn’t tend to mean much to the public. And for lawyers, who may have some familiarity with the term, it is important that they use the word they’re comfortable with.

Nancy Merrill, second vice president of the Law Society of British Columbia, who practises family law at Merrill Long & Co. in Nanaimo, B.C., says inconsistent terminology is a challenge.

“I’ve seen it referred to as limited-scope legal services. It’s called a la carte legal services in the U.S. I think there should be a universal term,” she says. “We all need to get on the same page.”

Epstein says another concern lawyers may have is insurance, but he says courts have sanctioned carefully drawn legal retainer agreements and, as long as they are properly drafted, “fears of wider liability are illusory.” He cites a 2016 British Columbia Supreme Court case, Heppner v. Heppner, where the judge, Robert McDiarmid, wrote that “limited retainers, such as is the case here . . . facilitate access to justice and it is my view that the courts should encourage that.”

McDiarmid goes on to write that “concerns that might arise hypothetically from limited retainers are generally dealt with by the body of ethical rules governing the conduct of lawyers.” In this case, it’s the Law Society of British Columbia’s Code of Professional Conduct.

Merrill says the law society feels unbundling removes barriers for people, and it recently funded a family unbundled legal services project with Mediate BC.

“We have to do a better job as a profession to let the public know things are offered,” Merrill says, noting there are also resources for lawyers — such as sample agreements on the law society’s website and a link to the Continuing Legal Education Society of BC, which offers a free one-hour tutorial on limited-scope retainers on YouTube.

Law Society of Upper Canada Treasurer Paul Schabas says the law society is “very much in favour” of unbundling, noting “we see this as an important tangible step where the law society has taken the lead in making sure that our rules are not standing in the way of access to justice and in fact are going further trying to facilitate it.”

In 2011, the rules of conduct were amended, and the law society went to the Civil Rules Committee and Family Rules Committee to “work with them to amend their rules to facilitate and effectively make it easier for lawyers and paralegals to provide services on limited aspects of files.”

Schabas says the profession, including judges on the rules committees, have been receptive — the law society has been hearing back from the profession and the judiciary and believes there’s been more of a take-up on offering unbundled services, and as they “continue to educate, we’ll see more of it.”

Sabreena Delhon, manager of The Action Group on Access to Justice, which is funded by the Law Foundation of Ontario and supported by the Law Society of Upper Canada, says that, last year, TAG organized continuing professional development sessions around unbundling and had LawPRO as a speaker to outline the correct way to offer limited-scope retainers.

The Nova Scotia Barristers’ Society says it “encourages limited-scope retainers” and its Code of Professional Conduct reflects this as well.

In its 2015 annual report, the NSBS notes it hosted two workshops “to increase support and understanding of legal coaching and other innovative law concepts,” with Macfarlane as the speaker for one of those. According to the report, “the participants saw coaching and other legal innovations as valuable approaches to addressing some of the challenges currently experienced by lawyers.”

Merrill says the research suggests self-reps make trials last longer, which is a drain on already over-burdened resources in the justice system. Schabas agrees, saying one of the hardest things for judges is dealing with unrepresented litigants and “any way in which we can ensure people get representation helps them.”

“There are some fairly simple things that can be done, but it does require the provincial governments to make some amendments to the rule of court,” Merrill adds, suggesting a one-page form to make it easier for lawyers to get on and off the record as one example. “Maybe they could try it as a pilot project.”

While Macfarlane says she increasingly sees unbundling being embraced by family law lawyers, there are concerns because it’s a “completely different way to practise than the model of, ‘I’ll take care of it and send you a bill and a reporting letter every couple of months,’ which for generations is how law has been practised.”

But there is no evidence that unbundling increases malpractice or other complaints at all, she says, calling the profession’s hesitation an understandable “expression of anxiety because of uncertainty.”

Delhon says it’s hard for lawyers to feel they are the first in a new area and, despite the regulators’ policies promoting acceptance, lawyers “need to have it in their space — have colleagues working in this space and see the day-to-day reality.”

She sees a need for cultural change, both on behalf of younger lawyers realizing they can offer a more supportive role in access to justice, as well as the rise of 21st-century consumers who are looking to play a more active role.

Macfarlane agrees, saying “coaching is more about a partnership and in keeping with 21st-century ideals.”

She’s seen so much innovation on behalf of the family law bar to try and improve the system for people, but embracing coaching or unbundling is another opportunity to demonstrate their value. They need to “take another step now and recognize this is what the public wants and needs and can afford” and be more flexible in how they deliver that value.

“I think that this kind of approach to working with clients actually has the potential for the family bar to become real leaders in a much more consumer-responsive, cotemporary model of legal process,” Macfarlane says. “I think this is an opportunity for them to shine.”

National Self-Represented Litigant Project

The National Self-Represented Litigant Project aims to increase the responsiveness of the Canadian justice system to self-reps, develop practical and accessible resources and continue to research and collect data in this area. Based on Julie Macfarlane’s National Self-Represented Litigants Research Study conducted from 2011 to 2013, where Macfarlane spoke with more than 200 self-represented litigants, the NSRLP is an attempt to address the final recommendations in her report.
The recommendations, referred to as the 10 Action Steps for the SRL Phenomenon, are listed on the project’s website, representingyourselfcanada.com, and are as follows:

Action 1:     How we think about change
Action 2:     Listening to SRLs
Action 3:     Making private legal services responsive to SRLs
Action 4:     Evolving new models of public legal services
Action 5:     Enhancing information portals for SRLs
Action 6:     Enhancing mediation and dispute resolution services for SRLs
Action 7:     Judges and SRLs
Action 8:     Integrating new knowledge into legal education and training
Action 9:     Measuring the social impact of self-representation
Action 10:   Re-building public trust

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