Invitation to lawyers to try something new (or not so new)
In a previous post, I mentioned some of the initiatives that Access to Justice BC has identified as areas for collaborative action. In this post, I will talk in a bit more detail about one of them.
Collaborative efforts stemming from our February 11, 2016 Access to Justice BC Leadership Group meeting resulted in Access to Justice BC working alongside the Mediate BC Family Unbundled Legal Services Project (funded by the Law Foundation) to support and promote the availability of “unbundled” legal services. The typical arrangement between lawyers and their clients is a full scope retainer, meaning that the lawyer handles all aspects of the case. This arrangement works well for some clients, but over time has become unaffordable for many low- and middle-income people. The unfortunate result is that more and more people are forced to represent themselves in their legal proceedings.
While many self-represented litigants take on this daunting task very ably, the reality is that without legal training steps can get missed and mistakes made that might have been avoided if the litigant had had some limited consultation with a legal professional. But how does a litigant who can’t afford a full retainer access discrete legal services (sometimes called “unbundled” or “limited scope retainer” services)? Research indicates that it is very difficult for people to find a lawyer offering limited scope assistance, in part because of the small number of lawyers offering such services and in part because lawyers who are offering such services do not always advertise it. (In fact a substantial number of lawyers do provide unbundled services and have for many years, so the concept is really not new for many.)
This fall I took part in a project led by Dr. Julie Macfarlane of the National Self-Represented Litigants Project at the University of Windsor Law School to promote better understanding of what it means for lawyers to offer unbundled services. The result of the project, so far, is a video (“Justices Speak Up For Unbundling”) intended to convey some introductory information about the concept and to dispel some of the concerns lawyers might have about offering unbundled services as part of their practice.
Interested in learning more? Access to Justice BC’s family unbundling initiative is proceeding in tandem with Mediate BC’s Family Unbundled Legal Services Project. Mediate BC has also published several helpful blog posts on the topic. Meanwhile Courthouse Libraries BC has stepped up to support the initiative by publishing a toolkit aimed at providing lawyers and paralegals with everything they need to start providing unbundled services.
I urge lawyers to take a look at these resources and to consider incorporating unbundled services into your practice. If you decide to try it or if you already offer unbundled services, I encourage you to better advertise those services; to sign up to the National Database of lawyers offering unbundled services to self-represented litigants; and, for family lawyers in BC, to sign up to the BC Family Unbundling Roster (under construction) hosted by Courthouse Libraries BC .
Will unbundled services make a difference to users of the civil justice system? As with all access to justice initiatives, any impact will need to be measured and assessed. What we do know is that: (1) there is a demand for these services; and (2) whatever we are doing now is not enough to protect people’s ability to fully and effectively exercise their legal rights. Based on those two considerations, the idea is most certainly worth a try.
Such “alternative legal services” programs (such as unbundled legal services projects) help the population live with the problem of unaffordable legal services, but they do nothing to help solve the problem. They are commendable programs and there will always be a need for them, but they provide law society benchers with an excuse for not trying to solve the problem. That means that law societies are not trying to serve their purpose—to regulate the legal profession to make legal services adequately available. Therefore they should be replaced with organizations having the necessary permanently developing expertise (which law societies do not have), and are more accountable to the democratic process.
The solution to the problem exists in the way the medical professions provide medical services, and in the way almost all manufacturers provide goods and services. But the legal profession takes no notice. It should, because the problem is not a legal problem. Lawyers and judges do not have the necessary expertise. Therefore the problem remains unsolved and its victims grow more numerous, of more kinds, and more victimized.
For the solution to the problem, see these articles (for a free pdf. download):
(1) “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (August, 2016; at:
(2) “Technology, the Fiduciary Duty, and the Unaffordable Legal Services Problem” (December 6, 2016; at:
–Ken Chasse, J.D., LL.M., member, LSUC (Ontario, since 1966); LSBC (since 1978).
The following author’s pages provide access to the many other “access to justice” articles that I have written:
(1) SSRN author’s page: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1398484 ;
(2) Slaw author’s page (a blog): http://www.slaw.ca/author/chasse/ .