Legal Services

PROVIDING LEGAL SERVICES

A main objective must be to ensure the necessary legal services are available to meet all essential legal needs. Essential legal needs are those that arise from legal problems or situations that put into jeopardy a person’s or their family’s security – including liberty, personal safety and security, health, employment, housing or ability to meet the basic necessities of life. Reform is needed to guarantee meaningful access to justice for everyone experiencing legal problems related to essential legal needs. Some essential legal needs can be met for many people by the private market, while others can only be adequately met through publicly funded legal services. A range of approaches is needed to reach this goal, along with a commitment to finding new and creative ways to address existing gaps in legal services.

This section is divided into four parts:

1. Legal aid

2. Pro Bono

3. Reorienting legal services

4. Education

LEGAL AID 

This guide uses the term legal aid programs to refer to all public-funded legal services. Legal aid programs are the most important access to justice program. They are an indispensable component of a fair, efficient, healthy and equal justice system. Currently, Canada’s legal aid system is inadequate and underfunded, and there are vast disparities between provinces and territories on who is eligible for legal aid, what types of matters are covered and the extent of the legal services provided.

Legal aid programs should meet the essential legal needs of those who are not otherwise able to afford assistance.

Providing effective legal aid is expensive, but the cost of inaction is even higher. Based on research in Australia, the United Kingdom, and the United States, every dollar spent on legal aid services saves six dollars in costs of other government-funded services such as health care and other social services. 

Without adequate publicly funded legal services, justice is unattainable for many individuals and the right to equality and liberty and security of the person in the Canadian Charter of Rights and Freedoms a fairy tale. Confidence in the fairness of our democracy and public institutions is also undermined.

INCONSISTENCIES IN LEGAL AID ACROSS CANADA

The provincial and territorial governments are responsible for the administration of justice and each legal aid plan sets its own rules on legal aid eligibility, coverage, the use of discretion by legal aid managers, administrative fees, and pay back requirements. The result, from a national perspective, is a patchwork legal aid system that fails to provide poverty level and low-income Canadians with equivalent access to legal advice and representation in criminal and civil matters, wherever they live in Canada.

Differences in eligibility – The threshold level of personal financial resources to qualify for legal aid varies. Some jurisdictions set a dollar amount or require the person to be on some form of social assistance, others use a means test. Nationwide comparisons are further complicated by differences in the cost of living in a province/territory and in a region.

Differences in coverage -- A person may meet the financial eligibility test for legal aid, and not qualify because the legal matter is not included in the provincial/territorial legal aid program. Generally, legal aid coverage in criminal matters is available when there is a likelihood of imprisonment or loss of livelihood as the result of a conviction. However, the degree of “likelihood” varies, and some jurisdictions only cover charges under the Criminal Code or another federal law, while others also cover some provincial offences. Coverage is generally available to young people charged with federal criminal offences.

All jurisdictions offer some legal aid services for some family law matters, although some only cover permanent guardianship hearings and serious spousal abuse situations. Some jurisdictions provide legal aid services for non-family law civil matters, such as involuntary hospitalization in a case involving a person’s mental health or loss of housing in an eviction situation. Some jurisdictions have legal aid clinics that focus on specific areas of law – injured workers claims, child welfare, poverty law, landlord/tenant issues, or services to Indigenous peoples.

Differences among jurisdictions include:

Differences in the use of discretion -- All legal aid plans authorize the local administrator or delegate to exercise some discretion in deciding whether a person is eligible for legal aid and whether to provide coverage. Legal aid officials therefore make any number of judgement calls with respect to applications for legal aid services.

Differences in the type of legal services provided – In different parts of Canada, there are several different ways that an eligible legal aid applicant may receive legal services. These include:

-  using any lawyer who takes a legal aid certificate, generally, restricted to any lawyer practising in the community where the case will be heard

-  being assigned a lawyer by legal aid according to a rotating roster of private practice lawyers

-  seeing the first available legal aid staff lawyer

-  receiving services from a lawyer or community legal worker at a specialized clinic.

Differences in the legal aid tariff –Some jurisdictions pay private practice lawyers working on a legal aid case a block fee for a particular legal matter, regardless of the actual amount of time spent on the case (for example, $200 for a break and enter, $500 for an uncontested divorce).  Some jurisdictions pay a flat fee for a full day or a half day in court (for example, $368 first half-day in court and $183 subsequent half days). Some jurisdictions have a maximum billable amount for any file, no matter the level of complexity.

A VISION FOR LEGAL AID

The CBA has advocated for principled and sustainable legal aid systems with the following features:

A National Public Legal Assistance System: Public legal assistant systems in Canada are funded sustainably to offer comprehensive, people-centered legal services tailored to local, regional, provincial and territorial circumstances

Scope of Services: offered to individuals families and communities with essential legal needs (legal problems or situations that put into jeopardy a person or family’s liberty, personal safety and security, health, equality, employment housing or ability to meet basic necessities of life. .

Service Priorities: Prioritize individuals, families and communities who are financially disadvantaged or are otherwise vulnerable to experiencing unmet essential legal needs.

PRO BONO

“PRO BONO” DEFINED

In this guide, pro bono work refers to “free legal services provided to people or organizations who cannot otherwise afford them and that have a direct connection to fulfilling unmet legal needs.”

Professional codes of conduct do not oblige a lawyer to volunteer their services. Nevertheless, lawyers have always worked for clients for a reduced rate or for no cost to help out a client or to bring forward an important legal issue. This charitable work led to the creation of the Canadian legal aid system in the 1970s and, in recent years, to formalized pro bono organizations coordinating connections between lawyers ready to volunteer their time and clients in need.

There are organized pro bono programs in every province and territory, except Prince Edward Island where local lawyers are available through a referral service. These programs range from summary legal advice at drop-in clinics to specialized clinics to supported legal services for people ineligible for legal aid.

The CBA’s Pro Bono Committee collected a list of pro bono programs available across Canada.

THE ROLE OF PRO BONO

The formalization of pro bono services offers preliminary legal assistance to people who are not eligible for legal aid.  The assistance, however, is most often advice on a discrete matter, legal information, or relevant self-help materials. It is not usually ongoing legal representation to help low-income people or people living in marginalized conditions resolve their legal problems.

As well, pro bono programs, for the most part, are only found in larger cities, leaving people in rural and remote areas without access to them. Anecdotally, most pro bono organizations report that they cannot keep pace with growing demand, finding that their services are quickly oversubscribed.

Though clearly responding to the public’s interest in reliable legal information and preliminary assistance in identifying their legal issue and sorting out options, pro bono services do not replace the need for government-supported legal representation for those who cannot otherwise afford to access the justice system. Pro bono organizations are best positioned to deliver legal services for important but non-essential and specialized needs that people cannot meet within the private market.

(sidebar) “A distinguished Ontario practitioner, well known for his contributions of low-rate or pro bono services, likened pro bono work to a sort of legal food bank: pro bono services alleviate hunger for some on a daily or monthly basis, but it absorbs the energy of those who provide these so that they have little energy left for changing the underlying conditions that create the hunger.” In Mary Eberts’ “’Lawyers Feed the Hungry’: Access to Justice, the Rule of Law, and the Private Practice of Law” (2013) 76:1 Saskatchewan Law review 91 [REJ, p. 43]

RE-ORIENTING LEGAL SERVICES

This section looks at alternative models and ideas for the delivery of legal services that can improve access to justice.

LIMITED SCOPE RETAINERS

The greatest potential for achieving meaningful access to justice and fair and lasting outcomes comes from a comprehensive, holistic approach. Yet, a current trend to make legal services more affordable to clients or reduce cost to the providing organization is moving away from the holistic approach, and to limited scope retainers or unbundled legal services. This issue cuts across the service delivery spectrum, affecting lawyers in private practice, legal aid and those working pro bono, as well as those providing other forms of legal assistance, also increasingly in a limited, piecemeal fashion.

Some lawyers and legal regulators have been wary about this development. Professional obligations require a cautious approach to isolating elements of legal services for limited representation. Limited scope services often rely on clients to sort out what services they need and when. Unbundled services may make it difficult for a lawyer to offer sound advice without the full picture of their clients’ situation, or to ensure individual understands and is able to follow through on the instructions provided by the lawyer.

An unbundled service is not the same as having legal representation. Research suggests that unbundled legal services works best for educated, sophisticated people facing routine matters. They are not effective in an adversarial setting or where there are too many tasks to be meaningfully unbundled.

TEAM DELIVERY

Recognizing the value of a continuum of legal services approach means recognizing the importance of increased diversity and specialization among legal service providers and enhanced capacity to provide comprehensive, cost-efficient services through teams of lawyers, other legal service providers (like paralegals) and providers of related services (like social workers). Teams can deliver more comprehensive and holistic services tailored to people’s needs. Advances have been made in the team delivery of legal services in both law centres and community-based and specialized courts.

Interprofessional collaboration in one agency has many advantages: allowing clients to “one-stop shop” and avoid referral fatigue, making legal services more time and cost effective by relieving legal staff from lengthy counseling sessions they may be ill equipped to handle and providing in-house education for legal staff through regular meetings and ad hoc consultations with other staff professionals. The presence of other professionals can also give legal staff a different and useful perspective about client circumstances.

LEGAL EXPENSE INSURANCE

Legal expense insurance (LEI) can make legal services more affordable for middle class Canadians who can afford to pay the premiums. The holder of legal expense insurance has a commitment from an insurer to pay some or all of the legal costs arising from certain legal situations. Insurers support legal services by both lawyers and paralegals and customers may include individuals, families, unions and small to mid-size businesses.

LEI is popular in Europe and provides basic access to legal assistance for people who can afford to buy the insurance, often in conjunction with home insurance or tenant insurance policies. Approximately 40% of all Europeans have LEI, and in the UK 59% of families have some coverage under home insurance policies. In Sweden coverage has been mandatory since 1997 and its development ran parallel to decreases in the availability of legal aid.

LEI has not caught on in Canada to the same extent. In contrast to Europe, Canadians purchase only about $11-12 million of coverage per year. LEI has mainly taken hold in Québec, attributable in large part to efforts by the Barreau du Québec, which spent $2 million on a campaign to encourage Québecers to take advantage of LEI. Their ads are explicitly aimed at people who make too much for legal aid, but too little to comfortably afford counsel should a legal event occur.

EDUCATION

Law schools support both the private and public delivery of legal services and have a direct role in providing legal services through legal clinics. However, Canadian law schools are still not doing enough to integrate practice into legal studies.

Law students have been a force for change and many law faculties are keen to increase experiential learning opportunities and make stronger contributions to access to justice. Students can make an important contribution, under the supervision of experienced lawyers, but cannot address the vast range of unmet legal needs.

The CBA has produced an experiential learning guide that explains the theory behind experiential learning and how it works, and provides a workbook with exercises for law students to complete to enhance their understanding of and takeaways from their hands-on legal experience.