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A Changing Role for Lawyers in the Age of Self-Represented Litigants

Tuesday, April 11, 2017

In recent years, there has been a dramatic increase in the number of individuals who address a legal issue without the assistance of legal representation.  Statistical data generated by the Canadian Forum on Civil Justice (CFCJ) indicates that approximately 11.4 million people in Canada will experience at least one everyday legal problem in a given three-year period.[1]  It is further reported that approximately “50% of people try to resolve their problems on their own with no or minimal legal or authoritative non-legal assistance.”[2]  In statistical terms, another recent report reveals that approximately 40% of civil law litigants represent themselves, and this percentage increases dramatically in certain legal fields, such as family law, where as high as 60-70% of litigants in certain family courts are self-represented.[3]  Moreover, as retainers run out, legal matters are unresolved and clients are unable to pay their mounting legal bills, the percentage of self-represented litigants is likely to increase.[4]  Low and moderate-income individuals have historically been among those most likely to be self-represented.  The combined effect of all of this accumulating data is the building access to justice crisis in the Canadian legal system.[5]  Most recently, a growing funding crisis in Legal Aid Ontario in 2017 points toward even more individuals being unable to obtain legal assistance and as a result, being obligated to enter the justice system as self-represented litigants.[6]

This crisis in access to justice in Canada has resulted in a variety of policy initiatives; many of these have been directed at attempting to assist the growing number of self-represented litigants who continue to enter the civil justice system without traditional legal representation.[7]  One of the practical realities of this data and the initiatives that have arisen in response to this phenomenon (i.e., duty counsel and self-help legal services aimed at providing self-represented litigants with summary legal advice and information) is that lawyers are often operating within a system that no longer resembles the legal system for which they were ostensibly trained.

However, while low and moderate-income individuals have historically been disproportionately self-represented, 50% of the self-represented litigants recently surveyed had a university degree and approximately 40% of those surveyed had an income of over $50,000 per year. [8]  In seeking to better understand the profiles of those who resolve their legal problems through self-help and without legal representation, Ab Currie stated that:

[i]n statistical terms, the relationship between the action taken to resolve problems and most socio-economic characteristics is statistically significant but extremely weak. There appears to be a slight tendency for self-helpers to be older, to have higher incomes, to be somewhat better educated and to be single or married or a couple with no children.  Respondents who are self-helpers were less likely to report that they have a physical or mental health problem.[9]

This signals a shift in the demographic make-up of self-represented litigants; self-representation is expanding to include members of the traditional middle class.[10]  In the American context, this phenomenon was previously observed by Sande Buhai who noted that there was “an increasing number of middle-income individuals choosing to resolve their legal issues without the help of a lawyer.”[11]  The shift in the demographics of the self-represented litigant population is also likely to have an impact on individuals’ perceptions about the role that lawyers play in the legal system and the legal profession more generally.  Historically, many individuals within marginalized communities have experienced a disengagement with respect to the legal profession.  However, a new generation of self-represented litigants not otherwise marginalized within society may view the profession more critically.  In adopting a more critical view of the legal profession’s value, they might challenge the legitimacy and authority of the profession.

Based on results from their nationwide survey, the Canadian Forum on Civil Justice reported that 41% of individuals who spent money to resolve their legal problem (i.e., obtained legal services) thought that the outcome was fair as opposed to 61% of those who did not spend money on legal services and thought that the result was fair.[12]  Moreover, 81% of the group surveyed thought the legal advice that they obtained was helpful however 68% of the group who sought non-legal advice also found that the advice was helpful to them in resolving their legal issue.[13]  While this does not spell the end of lawyers, it does suggest that individuals’ perceptions about the need for legal assistance and the type of assistance that they require may be evolving, such that more direct engagement in their own legal matters will affect how they conceptualize their relationship with members of the legal profession and what they expect from the profession.

In light of these dimensions, a shift in demographics and corresponding growth in the number of self-represented litigants has important implications for how the legal profession both thinks about and interacts with self-represented litigants.  In many respects, the legal profession has historically defined the ‘terms of engagement’ regarding access to justice.  This has had far-reaching effects on how members of the profession view their responsibility to advance access to justice and engage with those individuals attempting to access justice.[14]  To the extent that a broader spectrum of individuals are representing themselves, it is important that the legal profession take serious stock of how it has viewed self-representation, how the emergence of self-representation operates within the adversarial model, and how the legal profession’s traditional professional responsibilities in the adversarial system may be at odds with self-representation.  Historically, it was not unreasonable to suggest that lawyers tended to view self-represented litigants as nuisances in the legal system, ‘career litigants’ or individuals pursuing vexatious claims.[15]  The underlying assumption was that the self-represented litigant was likely to delay the resolution of the matter due to his or her lack of knowledge and experience, increase the costs incurred by paying clients, and pursue claims that were not meritorious.

While attitudes may be slowly changing as more self-represented litigants enter into the legal system, the concern is that those views continue to shape how legal professionals interact with self-represented litigants; and these views are situated within lawyers’ self-perceptions about their duties and responsibilities to both clients and adversaries.  At a minimum, the legal profession’s belief that the goal of access to justice should be legal representation for self-represented litigants raises concerns about how those same legal professionals are likely to respond to self-represented litigants who they believe ‘do not belong in the legal system’ without representation.  This attitudinal challenge must also be examined in the context of the legal profession’s continued adherence to a model of professionalism that focuses on the lawyer as a zealous advocate for whom there is no one else in the world but her client.[16]  Together, historical views about the legitimacy of self-represented litigants and a singular commitment to neutral partisanship serve to undermine the fulfillment of the adversarial system’s objectives; this ultimately risks diminishing the legitimacy of the civil justice system as a means by which members of society might resolve disputes and enforce rights.

The absence of more comprehensive professional guidelines regarding self-represented litigants is in serious need of correction.  Given the influx of self-represented litigants in the civil justice system, it has become necessary to integrate self-represented litigants more directly within the rules of the professional conduct framework. This type of reform cannot involve a ‘mere tinkering.’  Instead, what is required is a more in-depth re-thinking about the condition of the adversarial framework and lawyer’s roles within that framework – what are goals and objectives of the civil justice system?  Answering these questions will entail an inquiry into how the adversarial framework in which lawyers operate may require very different normative rules as well as practices that take better account of self-represented litigants’ legitimate participation within the legal system.[17]

In developing new approaches that might better shape the legal profession’s response to and interaction with self-represented litigants, one option is to explore other adjudicative frameworks that might infuse and alter the existing adversarial model.  The rationale for adopting this approach is, in part, due to a recognition that the existing adversarial system does not operate as it is ideally represented.  Indeed, over time, certain reforms (i.e. comprehensive disclosure requirements) have been undertaken to address inequalities in the existing system.  Thus, as the legal system evolves, albeit at a snail’s pace, so too must the corresponding professional expectations of lawyers in order to reflect the new realities as well as a continued commitment to a fair and just legal system.  An important component of this evolution will be the need for a broader engagement with individuals who are representing themselves in order that the legal profession and its regulators might better understand how the duties and responsibilities held by lawyers play out in this context.  Another part of this analysis will need to engage members of the profession in a more critical and reflective examination of their ethical responsibilities.  In this regard, the data collected by the Canadian Forum with respect to the ways in which individuals attempt to resolve their legal issues provides an important means to explore the changing role of the legal profession in an age of self-representation.