UPDATED: Put Me In Coach, I’m Ready to Play (Lawyer)

Did I make the team?

Over at Slaw.ca, Professor Julie MacFarlane proposes a solution to the vexing problem of “self-represented litigants (SRL’s”) in a post entitled: “Lawyers Coaching SRLs in “Self-Advocacy”? Why This Paradoxical Proposition Deserves Your Serious Consideration“.  Essentially, Professor MacFarlane, drawing upon her recent 2011-12 study and responses to the National Self-Represented Litigants Project , proposes a “Lawyer-Coach” model to stem the rising tide of “self-advocacy” within the Canadian legal system. MacFarlane writes,

How SRLs want help

SRLs want help – that is loud and clear. On-line resources get them part of the way – sometimes. But they want face-to-face help too.

Almost all of them say that they want lawyers. But they cannot afford to use a lawyer for every step of their case.

They want help to be effective self-advocates.

Crazy – or Adapting to Reality?

OK, so there is something paradoxical about lawyers assisting people to do the work that they would ordinarily charge them to do for them. The irony is that the profession now needs to consider this possibility in order to retain public legitimacy, as well as to enable the justice system to be more functional (more of this below).

Some lawyers will take the view that encouraging individuals to self-advocate is irresponsible and that our energy should be directed at bringing these SRLs “back into the fold” of full-on legal representation. While this sentiment may be coming from a good place, here is the reality – unless those same lawyers are willing to cut the cost of their services at least in half, or support a tax system that hugely expands legal aid, that it not going to happen.

And even then – if we can imagine either eventuality – there will be an appetite for saving costs. Whether this is self-advocacy, outsourcing, or access to para-legals, it’s all going in the same direction. The age of passive deference to professional advice is over. And a lawyer-coach model opens up the possibility of a lawyer/client partnership of the sort that so many personal and commercial clients now expect.

I am not entirely clear on what the “age of passive deference to professional advice” means. If I retain an accountant to give me professional tax advice, I do not offer up my opinions on how best to avoid or, heaven forfend, evade paying my taxes. The same holds true if I consult with my doctor about performing surgery under general anesthetic. It’s a given that I will defer to the person with the medical degrees hanging on their office wall.

In any event, Professor MacFarlane’s “Lawyer-Coach” model, while laudable, may be a cure looking for a disease. The following points come to mind:

First, while there may be a burgeoning crisis of SRL’s in criminal court and family court, I have not seen any reliable data that the same holds true for civil courts. Based upon my admittedly personal anecdotal observations from the past few years, while some SRL’s do appear in motions court, they certainly do not represent an epidemic clogging the Toronto courts. That said, only the Ministry of the Attorney General can provide the necessary statistics in this respect. See, Unrepresented Litigants – Ministry of the Attorney General . For helpful court links, see Canadian Self Representation – Help from the courts if you are representing yourself in court (canlawlinks.com).

Second, Professor MacFarlane does acknowledge that the reasons why SRL’s choose “self-advocacy” over retaining legal counsel are varied:

Does Coaching offer Clients something they Want?

Not every client will want coaching. Many (primarily those who can afford it) will still want full representation. Others will want to be coached at some points and fully represented at others (for example when they can afford this, and/or feel that they simply must have this level of assistance, for example for an important hearing).

The people who want to represent themselves are the least likely to want any form of coaching. They don’t want to understand the risks and what their legal options are; they want to be told exactly how the case will be litigated to a high degree of detail. A colleague of mine, R. Trent Morris uses a great analogy: “When a customer goes to a restaurant, they are not entitled to the chef’s recipe or to take a view of the kitchen, or be there while the meal is being cooked. They should, however, be given a menu with the prices and make an informed dining decision.”

Third, there is the”I AM NOT A LAWYER (IANAL)” EFFECT (Yes, I am intentionally using capitalization and yelling at you as you read this): IANAL’ers are non-lawyers who leave misinformed and, more often than not, disturbingly uninformed comments on law blogs. While they may concede at the outset that they are neither lawyers nor have any modicum of legal experience, this is no deterrent to offer their armchair opinions on any legal issue. In some respects, this is an unintended consequence of the “Free Access to Law Movement”, promoting open access to legal information, without any concomitant legal training or professional experience, leading to making everyone stupider.

Fourth, the aphorism “be careful what you wish for” comes to mind. Does anyone remember the “Detaxers”, “Freemen-on-the-land”, “Sentient-Men”, “Sovereign-Men”, or “Moors” and their Organized PseudoLegal Commercial Arguments (OPCA)? By far the best post is written by my friend and colleague, Houston-based criminal defense lawyer and First Amendment advocate, Mark “The Texas Tornado” Bennett: Redemption Theory: All Stocked Up. » Defending People. See also, Dan Pinnington/Nora Rock, LawPro, Stumped by “organized pseudolegal commercial argument”? What ABQB Chief Justice Rooke wants from you – (Slaw.ca) and Alice Woolley,  Lawyers Who Write Bogus Demand Letters: The Freemen in our midst? – (Slaw.ca)

Finally, lest we forget either the Law Society elephant or the LawPro gorilla in the room. Some lawyers may be willing to work for peanuts and  providing a la carte legal services or buffet-style “limited scope retainers”. Take heed of the following Rules of Professional Conduct:

Rule 2.01 -Competence 

Commentary

As a member of the legal profession, a lawyer is held out as knowledgeable, skilled, and capable in the practice of law. Accordingly, the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with legal matters to be undertaken on the client’s behalf. A lawyer who is incompetent does the client a disservice, brings discredit to the profession, and may bring the administration of justice into disrepute. In addition to damaging the lawyer’s own reputation and practice, incompetence may also injure the lawyer’s partners and associates.

A lawyer should not undertake a matter without honestly feeling competent to handle it or being able to become competent without undue delay, risk, or expense to the client. This is an ethical consideration and is to be distinguished from the standard of care that a tribunal would invoke for purposes of determining negligence.

A lawyer must be alert to recognize any lack of competence for a particular task and the disservice that would be done to the client by undertaking that task. If consulted in such circumstances, the lawyer should either decline to act or obtain the client’s instructions to retain, consult, or collaborate with a lawyer who is competent for that task. The lawyer may also recognize that competence for a particular task may require seeking advice from or collaborating with experts in scientific, accounting, or other non-legal fields, and, in such a situation, the lawyer should not hesitate to seek the client’s instructions to consult experts.

A lawyer should clearly specify the facts, circumstances, and assumptions upon which an opinion is based. Unless the client instructs otherwise, the lawyer should investigate the matter in sufficient detail to be able to express an opinion rather than mere comments with many qualifications. If the circumstances do not justify an exhaustive investigation with consequent expense to the client, the lawyer should so state in the opinion.

When a lawyer considers whether to provide legal services under a limited scope retainer, he or she must carefully assess in each case whether, under the circumstances, it is possible to render those services in a competent manner. An agreement to provide such services does not exempt a lawyer from the duty to provide competent representation. As in any retainer, the lawyer should consider the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The lawyer should ensure that the client is fully informed of the nature of the arrangement and clearly understands the scope and limitation of the services. See also subrule 2.02(6.1) to 6.3).

Rule 2.o2 -Quality of Service

Legal Services Under a Limited Scope Retainer

2.02 (6.1) Before providing legal services under a limited scope retainer, a lawyer shall advise the client honestly and candidly about the nature, extent and scope of the services that the lawyer can provide, and, where appropriate, whether the services can be provided within the financial means of the client.

[New - September 2011]

(6.2) When providing legal services under a limited scope retainer, a lawyer shall confirm the services in writing and give the client a copy of the written document when practicable to do so.

[New - September 2011]

Commentary

Reducing to writing the discussions and agreement with the client about the limited scope retainer assists the lawyer and client in understanding the limitations of the service to be provided and any risks of the retainer. In certain circumstances, such as when the client is in custody, it may not be possible to give him or her a copy of the document. In this type of situation, the lawyer should keep a record of the limited scope retainer in the client file and, when practicable, provide a copy of the document to the client. A lawyer who is providing legal services under a limited scope retainer should be careful to avoid acting such that it appears that the lawyer is providing services to the client under a full retainer.

A lawyer who is providing legal services under a limited scope retainer should consider how communications from opposing counsel in a matter should be managed. See rule 6.03(7.1)

[New - September 2011]

(6.3) Subrule (6.2) does not apply to a lawyer if the legal services are

(a) legal services or summary advice provided as a duty counsel under the Legal Aid Services Act, 1998 or through any other duty counsel or other advisory program operated by a not-for-profit organization.

(b) summary advice provided in community legal clinics, student clinics or under the Legal Aid Services Act, 1998;

(c) summary advice provided through a telephone-based service or telephone hotline operated by a community-based or government funded program;

(d) summary advice provided by the lawyer to a client in the context of an introductory consultation, where the intention is that the consultation, if the client so chooses, would develop into a retainer for legal services for all aspects of the legal matter; or

(e) pro bono summary legal services provided in a non-profit or court-annexed program.

[New - September 2011]

Commentary

The consultation referred to in subrule (6.3)(d) may include advice on preventative, protective, pro-active or procedural measures relating to the client’s legal matter, after which the client may agree to retain the lawyer.

[New - September 2011]

Pro bono publico ex gratia, caveat litigator.

UPDATE:

I would be remiss if I did not mention this concise argument  by Gary Joseph, MacDonald & Partners LLP, a family lawyer via Law Times: Letter: Don’t encourage self-represented litigants:

…I have previously written about what I consider to be the serious adverse consequences to our justice system of the self-represented litigant. The absence of legal knowledge and regard for the legal process and the rules of evidence, the elimination of respect for stare decisis, the bending of the traditional judicial role to accommodate those who do not know what to do or how to do it in court, and, finally, the enormous waste of court resources in trying to tutor the untrained in a complex process are problems caused by self-represented litigants that we should not be encouraging.

Family law is in fact law. The practice and process require a working knowledge of numerous statutes, case law, and related fields such as tax, corporate, property, and, at times, bankruptcy matters. Rather than encourage self-represented litigants, even the most educated of whom cannot navigate this difficult field, we should lobby for increased legal aid funding for family law; advocate for a unified family court system provincewide; seek an immediate technology upgrade to bring the court system into the 21st century as the wasted time involved in paper filings, lost files, and copying briefs adds layers of unnecessary costs to the process; institute a triage system to identify and stream high-conflict cases early on; start an immediate review of some of the regulatory demands upon lawyers that tend to drive up the cost of operating a law office; and permit and encourage the unbundling of legal services in the family law field.

We do a disservice to the public and our justice system by tacitly encouraging self-represented litigants. The long-term result is the destruction of the legal system as we know it. We must work diligently to improve the system and the quality of services we provide to the public but we should never abandon the field to self-represented litigants or untrained family law professionals who continue to appear with ever-greater frequency.

 

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5 Responses to “UPDATED: Put Me In Coach, I’m Ready to Play (Lawyer)”

  1. Turk Says:

    It’s an invitation for the lawyer to be sued when the pro se litigant fouls it all up and loses.

    Teaching a layman how to practice law? Thanks. I’ll pass.

  2. AP Says:

    I can’t +1 Turks comment enough.

  3. Antonin I. Pribetic Says:

    Well said, Turk.

  4. Matt Canzer Says:

    I usually agree with so much of what you write, but on this issue I couldn’t disagree with you more. While I too have experienced the frustration and wasted resources that inevitably follow when untrained SRLs try to throw their legal problems at the Court to see what sticks, and while I agree that Freemen-on-the-Land litigants are not good candidates for legal coaching, I think that our profession remains unecessarily elitist and self-aggrandising if we ignore the segment of the SRL population that is educated, sophisticated, and quite capable of self-representing with the right tools and information. Is a guest at a restaurant entitled to the recipes? No, but the huge popularity of cooking shows and open concept kitchens shows that the non-professional cooks are eager to learn, if only to make better chicken for dinner on Wednesday. Do I disregard my doctor’s diagnosis? Of course not, but I consult with a great physiotherapist, nutritionist and athletic coaches to take care of most of my health issues on my own, until I really need professional medical care. To completely disregard the possibility of coaching SRLs is to insist that only medical doctors can help you live a healthy life, and only professional chefs can prepare good meals. People want to DIY. As trained legal professionals, I see it as our role to help them understand when DIY is more risky and when it is less risky, and to provide the tools that are in increased demand. Proper pricing structure and retainer agreements are not huge obstacles. Our ability to adapt to a changing marketplace is.

  5. Antonin I. Pribetic Says:

    DIY is for home renovation shows on HGTV. All litigation is risky. It is not the duty of lawyers to coach individuals on how to navigate the legal system. If you wish to provide legal services pro bono, that is a different thing entirely, but to suggest that we should actively encourage SRL’s is a recipe for disaster.

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