Our legal system needs disruptive innovation
Yes, justice delayed is justice denied.
But a legal system that remains unaffordable is no less unjust.
And if rising costs keep bogging down our courts, we will all pay the price — not just needy people, but middle-class people in need of basic legal help. And everyone who counts on a functioning judicial system.
Lawyers lubricate our legal system, smoothing the way for litigants and judges. But they can also gum things up by charging so much that they price themselves out of the market.
The result is a family court system in which lawyers are mostly missing in action: A majority of people in divorce, separation and child custody cases represent themselves — for better or for worse, but for a lot less money.
If high-priced lawyers are part of the problem, part of the solution is paralegals.
As the name implies, they are licensed, trained facilitators who can help people navigate a confusing court process by filling in forms and explaining procedures that would otherwise leave them at sea.
It’s not a new idea — other jurisdictions have experimented with them, including Ontario itself. But when a previous reform-minded attorney general, Michael Bryant, opened the door to paralegals a decade ago, the hidebound Law Society of Upper Canada undermined and undid his efforts — banning them from courtrooms.
Now the problem has reached crisis proportions. A new report by the former chief justice of the Ontario court, Annemarie Bonkalo, tells us what we have long known: Our family courts can barely cope. Given today’s high divorce rates, more people than ever find themselves grappling with an unfathomable, unaffordable system as they struggle to defend their personal, financial and familial interests. With many lawyers charging $500 an hour, bills can quickly escalate into tens of thousands of dollars.
For a young, suddenly single parent lacking a financial buffer, but too middle class to qualify for legal aid, hiring a lawyer seems a long shot. That’s why self-represented litigants are now in the majority in family court, with little more than the Internet to rely on for free advice — and Google only gets you so far.
We need major reforms to a legal system that now amounts to rough justice. As long as lawyers charge extortionary rates — compounded by high overhead and outdated hourly billing practices — they will continue to price themselves out of the market, just as stock brokers did long ago.
A system increasingly in disrepute needs the disruptive innovation of paralegals. They are trained, regulated, and ready to help self-represented people navigate the legal system at more affordable rates.
Justice may be blind, but even the law society — the self-regulating body of the legal profession — is slowly opening its eyes to the damage inflicted by its own self-interest and inertia. So are judges.
In a report commissioned by both the provincial government and the law society, the former chief justice recommends paralegals be specially trained and licensed for straightforward family court matters.
Within hours of the report’s release this week, the association representing family lawyers pounced on the prospect of new (or renewed) competition, claiming most cases are too complex for paralegals who haven’t been to law school. But as Bonkalo’s report points out, leaving self-represented litigants entirely to their own (Internet) devices is no solution at all.
If anything, her recommendations seem too timid, requiring special certification for family law and restricting paralegals in cases involving property. Paralegals can assist in criminal cases, so why would family law have higher stakes?
The law society has handcuffed paralegals in the past, and one wonders about keeping the legal foxes in charge of the paralegals’ hen house, given that they are potential competitors undercutting high-priced lawyers. Pharmacists and nurse practitioners, for example, aren’t regulated by the College of Physicians and Surgeons, but by their own professional bodies.
The law society’s head, Paul Schabas (who still goes by the antiquated title of treasurer in this tradition- bound, self-regulating organization), tells me it “welcomes the report.”
He agreed the regulator’s mandate is “to act in the public interest,” whereas the “Family Lawyers’ Association comes at it as an interest group.”
(Full disclosure: Schabas does legal work for the Toronto Star in libel and defamation actions, and he has in the past vetted my columns to keep me safely out of court.)
The current attorney general, Yasir Naqvi, says he wants to hear from the public before responding to the report. If the law society falls back on its old instinct for inertia, we need to hold our politicians accountable for a system that lets people down.
After all, the law society’s statutory authority is delegated by the province itself. If lawyers continue to be part of the problem, resisting the recommended solution, the government can render its own verdict using its own residual authority. Martin Regg Cohn’s political column appears Tuesday, Thursday and Saturday. mcohn@thestar.ca, Twitter: @reggcohn