The access to justice problem is a continuing issue in the legal industry. Lawyers don’t trust clients to pay their bills, and clients don’t trust lawyers to send honest bills. Everyone in the industry seems to talk about the problem, but no one seems to do much about it. What is access to justice? Read on…

Access to justice is a fundamental principle that is crucial in ensuring that everyone, regardless of their socioeconomic status or background, has equal access to legal resources and can seek justice when their rights have been violated. It is a crucial component in ensuring that society is fair and just, and upholds the rule of law.

Lack of legal knowledge

Access to justice can be impacted by various factors, including financial resources, geographical location, language barriers, cultural differences, and lack of legal knowledge.

For instance, many individuals are unable to access the legal system because of the high cost of legal representation and associated expenses such as court fees, travel costs, and lost wages. For others, geographical location can be a major barrier, especially for those living in rural or remote areas where legal services may be scarce or non-existent.

Language barriers can also pose significant challenges, as many legal documents and proceedings are conducted in English or French, which can be difficult for those who do not speak these languages.

Cultural differences can also affect access to justice, especially for individuals from minority communities. Finding legal representation who understands their cultural background or is sensitive to the specific challenges they face can be difficult.

Low-income individuals

Furthermore, a lack of legal knowledge can be a significant obstacle to accessing justice. Many individuals are not aware of their legal rights and obligations and may not know how to navigate the legal system effectively, thereby missing key deadlines or not taking the necessary steps to protect their rights.

To overcome these barriers, numerous initiatives and programs have been developed to improve access to justice. Legal aid programs, for example, offer financial assistance to low-income individuals who need legal representation but cannot afford it.

These programs also provide legal advice and assistance to individuals who may not have the necessary knowledge to represent themselves effectively.

Technology has also been employed to enhance access to justice. Online legal resources and virtual courtrooms are becoming increasingly popular, making it easier for people to access legal information and participate in court proceedings without having to travel physically.

Accessing legal resources

Community-based organizations are also crucial in improving access to justice. These organizations work to provide legal education and support to individuals who may face barriers to accessing legal resources, such as those from marginalized communities or living in remote areas.

It’s a critical component in creating a fair and just society. It is essential that everyone has equal access to legal resources and can seek justice when their rights have been violated.

While there are many obstacles to accessing justice, numerous initiatives and programs are aimed at improving access and ensuring that everyone is equipped to participate effectively in the legal system.

Are lawyers for rich people?

Hiring a lawyer seems to be mainly for the rich. Even those that are not rich that can afford a lawyer have a hard time hiring one. A recent report by Clio showed that 64% of law firms do not answer their phones. People that can’t afford lawyers, or don’t want to pay for a lawyer, often end up giving up their legal dispute.

As seen below, the Chief Justice of the Supreme Court of Canada has said that access to justice is a major issue. You can read the full article on the National Post website.

Screenshot: National post

Ensuring access to justice is more important now than ever

Confronted with near-daily headlines about how life is getting more expensive by the moment, the public can be forgiven if they’ve gone numb to news about the soaring cost of living these days. Inflation is at a 30-year high. Housing costs have spiralled out of control even in once-affordable working-class suburbs.

Painful reminders of just how bad things are getting await people with every visit to the grocery store or gas pump. Meanwhile, nearly half the country reports being just $200 away from insolvency should they face an unexpected expense, whether it be a chipped tooth, a busted muffler, or god forbid, a legal issue like a criminal charge or a costly divorce.

Having the aid of a lawyer

With all the grim news about people’s plummeting financial confidence in mind, the prospect of entering the justice system without the aid of a lawyer looms like a dark cloud over people of modest means.

Despite their unenviable financial situations, many still may not qualify for legal aid even though one lawyer’s bill might break their bank, forcing them to go it alone and enter a labyrinthine legal system unfriendly to those without law degrees.

Indeed, just last year, Justice Peter Lauwers of the Ontario Court of Appeal noted in a ruling that self-represented litigants are “an increasing fact of life in Ontario courts, one which judges must accommodate.”

Hiring a lawyer

But the barriers Canadians face when it comes to access to justice go beyond the financial costs of hiring a lawyer. More often than not, even when people can afford legal representation, they face a litany of unknowns.

Will the lawyer give their case the attention it deserves to justify the cost? Ironically, people are expected to have faith in their lawyer, who they may know very little about, in a system where evidence rules the day.

For poor or indigent litigants, there’s certainly no guarantee that they’ll be treated fairly or the same as wealthy people who can afford armies of lawyers to go to bat for them in court.

Lawyers like Sivan Tumarkin of Samfiru Tumarkin LLP have created a Youtube channel to help Canadians hire a lawyer. The employment law show discusses common day issues in the workplace. These types of Youtube channels give the public information to make it easier for them to seek legal advice.

Clearway strongly supports lawyers like Sivan Tumarkin who are educating the public about their rights.

Qualifying for legal aid

Coming in contact with the justice system is like entering a race; some people come to the starting line in a Lamborghini, others in shoes made of paper bags and rope.

Even those who qualify for legal aid or get lucky and find a lawyer who will take their case pro bono face obstacles the system seems ill-equipped to dismantle. Legal aid only covers certain criminal or family law matters, while pro bono services might not be as robust as a case requires.

And many lawyers may not be able to afford to offer pro bono services since they have rent, staff, bills, and taxes to pay just like everyone else. Governments, though, can incentivize firms to offer pro bono services, as B.C. did back in 2011 when it started evaluating firms’ pro bono services as a part of the criteria for contracting out civil legal work.

Access Pro Bono

But it’s far from a be-all-end-all solution. Even Access Pro Bono, a B.C. non-profit, states matter-of-factly on its website that “pro bono legal services should serve to complement and not replace government-funded programs advancing access to justice; a collaborative pro bono system should not substitute for a properly funded legal aid system.”

Meanwhile, cash-strapped governments are loathe to dole out proper funding to such programs. The Ontario government, for instance, came under intense criticism late last year for gutting legal aid in the province.

“Legal aid programs were started by enlightened governments that believed it was as unjust for the poor and luckless to be left defenceless as it was to deny them proper health care,” wrote criminal defence lawyers Daniel Brown and Adam Weisberg in a commentary for the Toronto Star back in November.

“Governments ever since, however, have systematically ignored this ethos and plundered the programs’ budgets.”

Equal access to justice

With that in mind, the question remains unanswered on how to bolster and ensure equal access to justice regardless of someone’s financial situation. Brown and Weisberg’s healthcare analogy, though, offers a potentially novel approach.

Like Canadian doctors who work at walk-in clinics where they’re given a per-patient fee by the public system, I imagine a similar system for legal services. Lawyers could take on clients with minor legal issues, or perhaps collect modest fees for referring people to legal professionals with relevant and specialized expertise and experience.

Another potential solution is expanding the scope of services that non-lawyers can provide for a fee, such as paralegals and legal assistants, but that idea isn’t free of controversy. As Toronto lawyer Jared Brown noted in a commentary for Canadian Lawyer Magazine last month, the deregulation of legal services has led to a “regulatory turf war” between lawyers and paralegals.

Self-represented litigants

“Like it or not, deregulation is the reality that is overtaking the legal profession, with increasing numbers of self-represented litigants providing unregulated legal services,” Brown writes.

“Regulators continue to expand the legal services that non-lawyers, including paralegals, can provide. The internet provides the public with the unfettered ability to find and compare more and more information on legal services providers. The strength and desirability of referrals from trusted sources continue to drive the profession.”

I tend to agree, which is part of the reason I started my company ClearWayLaw after my own less-than-stellar past experiences with lawyers.

It’s often said that ignorance of the law is no defence, though without access to legal education early in life especially, many Canadians remain ignorant of the law, leaving them defenceless and vulnerable.

Access to Justice in Canada

When faced with the prospect of losing freedom or potential financial ruin should someone end up in court ignorant of the complexities of the processes and procedures, there’s certainly nothing blissful about that.

In a democracy like Canada that values the rule of law, preserving it requires governments to acknowledge the inequities baked into the system and step up with proper funding and new rules to address them.

Whether such changes are effective at increasing Canadians’ access to justice remains to be seen, but with time, we’ll soon all be free to judge.

Some People Burn Out In Litigation

We saw a civil lawsuit case recently where the defendants had stolen over a million dollars from investors. In many cases, it was most of the money the investors had. That made hiring a corporate lawyer at $400/hour very challenging to do.

Some in the plaintiff group could afford the lawyer, and they had no problems with the lawsuit. There were also some in the group that were self-represented but had experience in litigation. They had no problem dealing with the emotional elements of being threatened by the opposing parties’ lawyers.

But those without money or those that can’t deal with stress well, don’t stand a chance of self-representing. When these plaintiffs dropped out of the lawsuit, they let the defendants get away with fraud.

What do you think the respondents learned? Further, they can steal money and it’s no problem. Therefore, it is likely they will harm more people in the future.

Legal Problems

Outside of the plaintiffs trying to recover from the fraud, I believe they have a duty to hold the respondents accountable for their illegal actions. No one should have to go through what they went through.

In most provinces, the maximum amount of money you can make to qualify for legal aid is between $15,000 and $23,000.

Many people, could afford a lawyer if they truly wanted to. They could borrow money from the bank, from credit cards, and from families. They could sell a car or try something else. But of course, these are risky things to do. They need to be completely convinced that hiring a law firm is worth the risk.

Access To Justice Problem – Legal Aid

Many people apply for legal aid, and pro bono lawyers, and even ask law students for help. From what I have heard from people that applied for these programs, almost all of them are rejected.

These programs seem to mostly help First Nations, refugees, and the homeless. The areas of law these clinics help people with seem to be minor crimes and people applying for refugee status (immigration law.) Also, there seems to be little help for those with family law or fraud cases.

Lawyers who provide pro bono services, they can pick who they want to help. There are many female family lawyers who want to only provide free advice to women who are victims of domestic abuse. Again, they have the right to pick who they want to help, as it’s their time.

But what about men? What about people with business law cases who have been defrauded? Further, what about the common family law dispute over child custody?

Legal Coaching From A Lawyer

The amount of money you spend hourly often depends on how long you have been a lawyer. Other factors include which city they live in (Toronto might be more than Victoria BC). Further, some areas of law tend to cost more than others. Corporate lawyers often tend to be far more expensive than family lawyers.

A good option for those that work but can’t afford to spend $20,000 on a litigation lawyer can be self-represented coaching. This means that you can ask the lawyer a question when you need them. You only pay for the lawyer’s time that you use. But it will be the self-represented individual that receives correspondence from the opposing parties’ lawyer.

Conception Of Access

Another option is for those who need to divorce to do a separation agreement instead of starting litigation. Separation agreements often only cost around $2000-3000. That is a lot less than the $20K which might be spent on family law litigation.

Those trying to get legal help in Canada are similar to those in the United States who want universal medical coverage. Both groups do not want to have to pay for professional help.

But keep in mind, that there is no universal legal coverage in Canada. For many people, you can get as much legal help as they can afford. Some lawyers like to use the term, “You can get as much justice as you can afford.” This, of course, goes against the principles of our legal system.

Mediation And Arbitration

I hope that more people will use self-represented coaching, mediation, and arbitration. This will speed up the litigation process and reduce taxpayer money spent on those that just want to be proved right in front of the judge at any cost.

In conclusion, it is unlikely that access to justice will be solved any time soon. Clients continue to want to fight it out in court, but they are not prepared to spend over $20,000. Lawyers remain available to assist clients that want to fight but don’t seem willing to embrace legal innovation.

Innovation Sometimes Is Forced

But I want to point out that it’s very similar to what immigration lawyers have been doing for a long time. Immigration lawyers provide most of their services over the phone, videoconferencing, and e-mail.

They do this because there’s no way that a Calgary immigration lawyer can meet a client in China or India that wants to move to Ontario. It’s impossible that the lawyer can verify the I.D. face-to-face.

What is Access to Justice?

So, for most immigration lawyers, what they do is get multiple pieces of I.D. and then verify the person’s face on videoconferencing. This is why immigration lawyers are often quite innovative because they must be. They don’t have the opportunity to be a traditional law firm that’s open 8 am-4 pm.

Law firms that don’t do immigration law must also learn to be more flexible with how they provide legal services. They are currently losing 70% of clients that choose to take care of their own legal issues.

And on the other side, 70% of people are not getting the benefits of a lawyer’s knowledge. It might not be hard to find a lawyer in Calgary, because you have a lot of family lawyers near you, so you can kind of shop around. But if you’re in a remote place, there might be no family lawyers there.

Clients Cannot Drive Six Hours To See Their Lawyer

There might be one family lawyer that gets conflicted on the first consultation (a lawyer can only provide consultation to one of the parties, not both.) And so someone might have to drive three hours to meet a family lawyer and then three hours back home.

That’s not realistic to expect of people when they need legal help. Therefore, they often do it themselves again. And it’s a massive problem. So instead of talking about access to justice and then just identifying it as a problem, I want people to really think about how they can fix it.

Let’s Solve The Access To Justice Problem

I’m sure I’m not the only one that has an answer to the access to justice problem. I encourage all law firms to think about the problem and put forward their best answer. Don’t just come up with an idea but follow through on the idea.

I can promise you that old-school lawyers are going to end up fighting any kind of innovation you do. I’ve experienced it since day one with ClearWay Law.

Every time I talk about doing something innovative or challenging old-school law, I get anonymous hate emails. I like getting hate mail because old-school law isn’t working anymore, and they see my company as a threat. If they didn’t think it was possible to change the legal industry, they would just ignore me.

What are the issues with access to justice?

Ensuring access to justice is a crucial aspect of promoting fairness and equality within society. However, several obstacles can hinder people’s ability to access legal resources, such as financial limitations, geographical barriers, language disparities, cultural differences, and insufficient legal knowledge.

For instance, people with low income may struggle to afford legal representation or associated expenses, including court fees and travel costs. Similarly, individuals living in rural or remote areas may face difficulties accessing legal services due to the scarcity of resources. Furthermore, language barriers can be a significant obstacle for those who do not speak the language used in legal documents and proceedings.

Access to Justice In Minority Communities

Cultural differences can also hinder access to justice, making it hard for individuals from minority communities to find legal representation that understands their background and the challenges they face. Additionally, insufficient legal knowledge can prevent people from navigating the legal system effectively and taking the necessary steps to protect their rights.

Overall, promoting access to justice requires addressing these obstacles and providing individuals with the resources and support necessary to exercise their legal rights.

This could involve providing financial assistance to those who cannot afford legal representation, increasing the availability of legal resources in remote areas, and ensuring that language services are available to those who need them.

Additionally, community-based organizations can play a crucial role in providing legal education and support to marginalized communities, ultimately promoting a more just and equitable society.

Author: Alistair Vigier is the CEO of ClearWay Law

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